Commentaries on the laws of England : in four books

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C O M M E N ' N T S.

O N T H E

L A W 6

0 F

ENGL AND.

BOOK THE THIRD.

BY

Sir WILLIAM BLACKSTONE, Knt.

ONE OF HIS ^MAJESTY'S JUDGES OF THE COURT OF COMMON PLEAS.

RE-PRINTED from the BRITISH COPY,
PAGE FOR PAGE WITH the LAST EDITION.

AMERICA:
PRINTED FOR theSUBSCRIBERS,
By ROBERT BELL, at the late Union Library, In Third-Jfreet,
. PHILADELPHIA. M DCC LXXIL

ADAMS/rMf

CONTENTS.

Book III.
Of Private Wrongs,

C H A p. I.

Of the Redress of Private Wrongs by the

merea^oftheVkKiii.s, Page I.

C H A p. 11.
0/* R E D R E s s by the mere operation of Law, iB,

Chap. III.
Of Courts in general, 22*

Chap. IV.

Of the Public Courts o/'Common Law
and Equity. 30*

C H a p. V.

Of Courts Ecclesiastical, Military,
and Maritime. 61,

a 2 ' Chap^

CONTENTS.

C H A P, VI.

Of Courts of a Special Jurisdiction. 71.

Chap. VII.
Of the Cognizance <?/" P r i v a t e Wrongs. 86.

Chap. VIII.
Of Wrongs, and their Remed ies, refpeding

/i'^ R I G H T S o/" P £ R S O N S. II5»

Chap. IX.
O/" Injuries to Personal Property. 144.

Chap. X.

0/" Injuries /oReal Property, and firft of
Dispos session, or Ouster, of the Freehold. 167.

Chap! XI.

CyDispossEssi^oN, or Ouster, ^Chattels
Real. 198

J

Chap. XII.
Of Trespass.

Chap. XIIL
Of Nus a n c e.

208.

216,
Chap.

CONTENTS.

Chap. XIV.
0/* Waste. 223^

Chap. XV.
Of Subtraction. 230.

Chap. XVI.
Of Disturbance. 2£^»

Chap. XVH.

Of Injuries .proceeding from^ or offering the

Crown. 254.

Chap. XVIII.

Of the V v^sviT of Remedies ^^^ Action;
and^ frji, of the O ki c in al VI kit^ 270.

C^H a p. XIX.
Of Process. 279.

Chap. XX.
Of Pleading. 293.

Chap. XXI.
Cy 1 5 s u E and Demurrer. 314.

Chap.

C O N T E N T S.

Chap. XXIL
Of the feveral Species (3/"Trial. 325.

Chap. XXIII.
CftbeTRiAh 3y Jury. 349.

Chap. XXIV.
Of] uDGMRN T, and it*s Incident $« 38^.

Chap. XXV*
Of Proceedings, in the nature of A?? 1.AI.S, 402.

Chap. XXVI.
Of Execution. 412.

Chap. XXVII.

Of Pro c EEiriNGs in the Courts of Equity. 426.

«

APPEND.

4
I

CONTENTS.

APPENDIX.

N°. I. Proceedings on a Writ o/R i g h t Patent, Page L

§. I. Writ of Right patent in the Court Baron-. ibid.

§. 2. Writ of ToLT, to remove it into /Z'f County Court, i-bid.
• §. 3. Writ ofVo^Zyto remove it into the Court of Common

Pleas. ii.

§. 4. Writ o/'Right, quia Dominus remifit Curiam, ibid.

%.$. The Record, with award of Battel* iii.

• 5* <^' Trial by the grand Affife, v.

N". II. Proceedings on an A^ion of Trejpafs in "EiECTMEtUT,
by Original, in the King's Bench. vii.

S» I' The Original \Vrit, ibid,

§. 2. Copy of the De&larationuagainjl the cafual Eje&or j who

gives Notice thereupon to the Tenant in Poffejfion, ibid,
§. 3. The Ruk of Court, ix

5. 4. The Record, ibid.

N°. HI. Proceedings on an A^ion of Ty^-RT, in the Court of
common Pleas j removed into the King's l^tncli by\Writ ef
Error. xiii.

§. I. Original, ibid.

§. 2. Procefs. ibid.

« §.3. 5/7/ o/^Middlefex, and Latitat thereupon, in the Court

o/" King's Bench. xviii.

§.4. Writ^ of Quo minus z«/^^ Exchequer. xix,

§. 5. AS/^r/^/ j5j//; on the Arrejl of the Defendant, purfuant to

/^^Teftatum Capias, in page xiv. ibid.

%,6. The Record, as removed by Writ ^Er ror . xxi,

§. 7 * Procefs of Execution* * xxvi.

tt

COMMENTARIES

O N T H E

LAWS OF ENGLAND.

Book the third.

Of private WRONGS.

Chapter the first.
Of the redress of PRIVATE WRONGS

BY THE MERE ACT OF THE PARTIES.

T the opening of thefe commentaries * municipal lavy/^
was in general defined to be, " a rule of civil coi*^'^^*^/^^-
" dud, prefcribed by the fupreme power in a flate,
" commanding what is right, and prohibiting what
is wrong ^" From hence therefore it followed, that the pri-
mary objects of the law are the eftablilhment of rights, and the
prohibition of wrongs. And this occafioned^ the diftribution of
thefe collections into two general heads ; under the former of
which we have already confidered the rights that were defined
and eflablilhed, and under the latter are now to confider the
•wrongs that are forbidden and redrefled, by the laws of England.
Vol. III. A 1 1^

a Introd. §. i. cantrarta. Cic. ii Philip^, ij. Bra£l. /. I. f. J.

^ San^io jujla, julem honefta, tt ^roVibiHi c Book I, ch. i.

n

2 Private Book IIL

I N the profecutlon of the firft of thefe enquiries, we diftin-
guifhed rights into tv/o forts : firft, fuch as concern or are an-
nexed to the perfons of men, and are then called Jura per/ofta-
^ULlLJ^K^^^^^h or ^/^^ rights of perfons ; which, together with the means of
/i2i. acquiring and lofing them, compofed the firft book of thefe

commentaries : and, fecondly, fuch as a man may acquire over
I external objeds, or things unconnected with his perfon, which

Ijjv^jS^Cyr. are c^Wtd jura rerum^ or the rights of things ; and thefe, with the
"^ means of transferring them from man to man, were the fubje<5t of

the fecond book. I am now therefore to proceed to the conftde-
|/^^«ufai ration of wrongs ; which for the moft part convey to us an idea
I ' merely negative, as being nothing elfe but a privation of right.
For which reafon it was neceffary, that, before we entered at all
into the difcufiion of wrongs, we fhould enteitain a clear and
VM>. , diftind notion of rights ; the conteihplation of what is Jus being
Jruu/Tt^: neceffarily prior to what may be termed injuria, and the defini-
J^ti.-Z^A'. tio^ of /2J- precedent to that of ;2^^j-.

T^rmofJ Wrongs are divifible into two forts or fpecies ; private
f^^9Jli.k>U.'wrongs and public wrongs. The former are an infringement or
t^, privation of the private or civil rights belonging to individuals,

conftdered as individuals ; and are thereupon frequently termed
mui. civil injuries : the latter are a breach and violation of public
rights and duties, which affect the whole community, conftdered
as a community ; and are diftinguifhed by the harfher appella-
l^fi/nuJ^ iion of crimes and mifdcmefnors. To inveftigate the firft of thefe
fpecies of wrongs, with their legal remedies, will be our em-
ployment in the prefent book ; and the other fpecies will be re-
ferved till the next or concluding volume.

The more elfeclually to accompiifh the redrefs of private in-
juries, courts of jufHce are inftituted in every civilized fociety,
in order to protect the weak from the infults of the ftronger, by
expounding and enforcing thofe laws, by which rights are defi-
ned, and wrongs prohibited. This remedy is therefore princi-
pally

tMjnja/ti-

Ch. I. Wrongs.

3

pally to be fought by application to thefe courts of juPace ; that
is, by civil fuit or acftion. For which reafon our chici employ-
ment in this volume will be to conlidcr the rcdrefs of private
wrongs, hy fuit or a^'wn in courts. But as there are certain in- ffelc^fij
juries of fuch a nature, that fome of them furnifh and others re-
quire a more fpeedy remedy, than can be had in the ordinary forms
of julHce, there is allowed in thofe cafes an extrajudicial or ec-
centrical kind of remedy ; of which I fiiall firft of all treat, be- ^
fore I confider the feveral remedies by fuit : and, to that end,
fliall diftribute the redrefs of private wrongs into three feveral _

fpecics ; firft, that which is obtained by the mere a6l of the far- Z^^^*^^.
//Vj- themfelves ; fecondly, that which is eifecled by Xht mere aclUJUj^^
and operation of law \ and, thirdly, that which arifes from fii'it .

or aB'ion in courts ; which confifts in a conjunction of the other' »*^^'**^'
two, the act of the parties co-operating with the ad of law.

And, firft, of thatredrefs of private injuries, which is ob-
tained by the mere act of the parties. This is of two forts ;
firft, that which arifes from the act of the injured party only 5
and, fecondly, that which arifes from the joint act of all the
parties together : both which I lliall confider in their order.

O F the firft fort, or that which arifes from the fole ad of the
injured party, is,

I

I. The defence of one's felf, or the mutual and reciprocal /^P-Z^i
defence of fuch as ftand in the relations of hufband and wife,
parent and child, mafter and fervant. In thefe cafes, if the party
himfelf, or any of thefe his relations, be forcibly attacked in his
pcrfon or property, it is lawful for him to repel force by force ;
and the breach of the peace, which happens, is chargeable upon
him only who began the affray"*. For the law, in this cafe, re-
fpects the pafilons of the human mind ; and (when external vio-
lence is offered to a man himfelf, or thofe to whom he bears a
near connedion) makes it lawful in him to do himfelf that im-

A 2 meuiate

d a Roll Abr. ;4<). i Hawk. P. C. 131.

,%f/rldJj,

£^ Private Book III,

mediate juflice, to which he is prompted by nature, and which
no prudential motives are ftrong enough to reftrain. It confiders
that the future procefs of law is by no means an adequate remedy
for injuries accompanied with force; lince it is impofTible to fay,
to what wanton lengths of rapine or cruelty outrages of this fort
might be carried, unlefs it were permitted a man immediately
to oppofe one violence with another. Self-defence therefore, as
. . itisjuflly called the primary law of nature, fo it is not, neither

\ . can it be in fad, taken away by the law of fociety. In the

Englifli law particularly it is held an excufe for breaches of the
peace, nay even for homicide itfelf: but care muft be taken,
that the refiftance does not exceed the bounds of mere defence
and prevention j for then the defender would himfelf become an
^ aggrefTor,

II. Recaption or 7-^/;;7/^/ is another fpecies of remedy by
the mere acl of the party injured. This happens, when any one
hath deprived another of his property in goods or chattels per^
fonal, or wrongfully detains one's wife, child, or fervant : in
which cafe the owner of the goods, and the hufband, parent, or
mafter, may lawfully claim and retake them, wherever he hap-
pens to find them ; fo it be not in a riotous manner, or attended
with a breach of the peace% The reafon for this is obvious;
fmce it may frequently happen that the owner may have this only
opportunity of doing himfelf juftice : his goods may be after-
wards conveyed away or deftroyed ; and his wife, children, or
fervants, concealed or carried out of his reach ; if he had no
fpeedier remedy than the ordinary procefs of law. If therefore
hecanfo contrive it as to gain poffeffion of his property again,
without force or terror, the law favours and will juftify his pro-
ceeding*. But, as the public peace is a fuperior confideration to
any one man's private property j and as, if individuals were once
allowed toufe private force as a remedy for private injuries, all
fecial jullice muftceafe, the flrong would give law to the weak,
and every man would revert to a Hate of nature j for thefc reafons

it

a 3 Inft. 1 54. Hal. Anal. §. 4<;.

Ch. I. Wrongs. 5

it is provided, that this natural riglitof recaption fliall never be
exerted, where fuch exertion muil occafion Itrife and bodily con-
tention, or endanger the peace of fociety. If, for inftance, my
horfe is taken av^^ay, and I find him in a common, a fair, or a
pubUc inn, I may lawfully feife him to my own ufe : but I can-
not juftify breaking open a private ftable, or entering on the
grounds of a third perfon, to take him, except he be felonioully
llolen'" ; but muft have recourfe to an action at law.

III. A s recaption is a remedy given to the party himfelf, for
an injury to his /'^'^yow/a;/ property, fo, thirdly, a remedy of the
fame kind for injuries to real property is by entry on lands and t^W^.
tenements, when another perfon without any right has taken
poffefiion thereof. This depends in fome meafure on like reafons
with the former ; and, like that too, mull be peaceable and
without force. There is fome nicety required to define and dif-
tinguifli the cafes, in which fuch entry is lav.'ful or othcrwife :'
it will therefore be more fully confidered in a fubfequent chap-
ter ; being only mentioned in this place for the fake of regulari-
ty and order.

IV. A FOURTH fpecies of remedy by the mere act of the
party injured, is the abatement, or removal, of mijaiices. WhsLtMrnM^td
nufances are, and their feveral fpecies, we fhall find a more pro-«>^**tai,
per place to enquire under fome of the fubfequent divifions. At i
prefent I Ihall only obferve,that whatfoever unlawfully annoys or

doth damage to another is a nufance ; and fuch nufance may be
abated, that is, taken away or removed, by the party aggrieved
thereby, fo as he committs no riot in the doing of it^. If a houfe
or wall is erected fo near to mine that it fi:ops my antient lights,
which is z private nufance, I may enter my neighbour's land,
and peaceably pull it down*". Or if a new gate be erefled acrofs
the public highway, v,?hich is a cormmn nufance, any of the king's
fubjecls pafling that way may cut it down, and deilroy it.^ And

the

f a Roll. Rep. 55, jff. io8. z Roll. Abr. h Salk. 459,

565, s<5(5. j Cro.Car. 184.

2 S Rep. loi, 9 Rep. 55.

2f://tJ

6 Private Book III,

the reafon why the law allows this private and fummary method
of doing one's lelf juflice, is becaufe injuries of this kind, whicU
obftrucl or annoy luch things as are of daily convenience and
life, require an immediate remedy; and cannot wait for the flow
progrefs of the ordinary forms of juftice.

V. A FIFTH cafe, in which the law allows a man to be his
^ own avenger, or to minifter redrefs to himfelf, is that of diftrein-
'"/ / hig cattle or goods for nonpayment of rent, or other duties j or,
diilreining another's cattle damage-feafant^ that is, doing damage,
or trefpaliing, upon his land. The former intended for the be-
nefit of landlords, to prevent tenants from fecretingor withdraw-
ing their efFefts to his prejudice ; the latter ariling from the ne-
ceility of the thing itfelf, as it might otherwife be impoffible at
a future time to afcertain, whofe cattle they were that committed
the trefpafs or damage.

As the law of didreffes is a point of great ufe and confequence,
I Ihall confider it with fome minutenefs ; by enquiring, firll,
for wjiat injuries a diftrefs may be taken ; fecondly, what things
may be diflreined ; and thirdly, the manner of taking, difpo-
ling of, and avoiding diftrelTes.

1. And, firfl, it is neceflary to premife, that a diftrefs', dif-
triciio, is the taking of a perfonal chattel out of the poffeflion of
the wrongdoer into thecuftody of the party injured, to procure
a fatisfaclion for the wrong committed, i. The moft ufual in-
iury, for which a diftrefs may be taken, is that of nonpayment of
rent. It was obferved in a former volume", that diftreifes were
incident by the common law to every rent-fervice, and by parti-
cular refervation to reiit-charges alfo ; but not to rent-feck, till the
flatute 4 Geo. II. c. 28. extended the fame remedy to all rents
alike, and thereby in efTecl aboliflied all material diftinclion be-
tween them. So that now we may lay it down as an univerfal*

principle,

i The thing itfelf taken by this procefs, books very frequently called a Jlftrefs. ,

as well as the procefs itfelf, is in our law- k Bgok II. eh. 3.

Ch. I. Wrongs. 7

principle, that a diflrefs may be taken for any kind of rent in ar-
rear ; the detaining whereof beyond the day of payment is an
injmy to him that is entitled to receive it. 2. For ncglectinp to
do fuit to the lord's court', or other certain perfonal fervice "*
the lord may diftrein, of common ri/^ht. 3. For amercements
in a court-leet a diflrefs may be had of common right ; but not
for amercements in a court-baron, without a fpecial prefcription
to warrant it". 4. Another injury, for which diftrefTes may be
taken, is where a man finds beafts of a ftranger wandering in his
grounds, damage-feafant ; that is, doing him hurt or damage,
by treading down his grafs, or the like ; in which cafe the owner
of the foil may diftrein them, till fatisfaclioa be made him for
the injury he has thereby fuftained. 5. Laftly, for fevera? duties
and penalties inflicted by fpecial a6l:s of parliament, (as for affeff-
mentsmade by commiflioners of fewers% or for the relief of the
poor") remedy by diftrefs and fale is given ; for the particulars
of which v/e muft have recourfe to the ftatutes themfelves : re-
marking only, that fuch diftrelTes "^ are partly analogous to the
antient diftrefs at common law, as being repleviable and the
like; but more refembling the common law prccefs of execution
by feiling and felling the goods of the debtor under a writ of
y?<?ri/^<:/^j", of which hereafter.

2. Secondly; as to the things which may be diftreined,
or taken in diftrefs, we may lay it down as a general rule, that
all chattels perfonal are liable to be diftreined, unlefs particularly
protected or exempted. Inftead therefore of mentioning what
things are diftreinable, it will be cafier to recount thofe which
are not fo, with the reafon of their particular exemptions '. And,
I. As every thing which is diftreined is prefumed to be the pro-
perty of the wrongdoer, it will follow that fuch things, wherein
no man can have an abfolute and valuable property (as dogs, cats,

rabbets,

1 Bro. Abr. tit. dijlrcfs. 15. p Stat. 43 Eliz. c. z.

m Co. Litt. 4(J. q 4 Burr. 589.

n Brownl. 30. r Co. Litt. 47.
o Scat. 7 Ann. c. lo.

8 Private Book IIL

rabbets, and all aniiTxals ferae naturae) cannot be diftreined*
Yet if deer (which are ferae naturae) are kept in a private in-
clofure for the purpofe of fale or profit, this fo far changes their
nature, by reducing them to a kind of flock or merchandize,
that they may beniiftreined for rent\ 2. Whatever is in the
perfonai ufe or occupation of any man, is for the time privi-
leged and protected from any dilirefs ; as an ax with which a
man is cutting wood, or a horfe wdiile a man is riding him.
But horfes, drawing a cart, may (cart and all) be diftreined
for rent-arrere ; and alfo if a horfe, though a man be riding
him, be taken damage feafant, or trefpaffing in another's grounds,
the horfe (notwithftanding his rider) may be diftreined and led
away to the pound ^ 3. Valuable things in the way of trade
lliall not be liable to diftrefs. As a horfe ftanding in a fmith's
Ihop to be fhoed, or in a common inn ; or cloth at a taylor*s
houfe ; or corn fcnt to a mill, or a market. For all thefe are pro-
tected and privileged for the benefit of trade ; and are fuppofed
in common prefumption not to belong to the owner of the houfe,
but to his cuilomers. But, generally fpeaking, whatever goods
and chattels the landlord finds upon the prcmifes, whether they
in facl belong to the tenant or a ftranger, are diflreinable by him
for rent : for otherwife a door would be opened to infinite frauds
upon the landlord ; and the ftranger has his remedy over by ac-
tion on the cafe againft the tenant, if by the tenant's default the
chattels arc diftreined,*fo that he cannot render them v4ien called
upon. With regard to a ft ranger's beafts which are found on the
tenant's land, the following diftinclions are however taken. If
they are'^put in by confent of the owner of the beafts, they are
diftreinable immediately afterwards for rcnt-arrere by the land-
lord ^ So alfo if the ftranger's cattle break the fences, and com-
mit a trefpafs by coming on the land, they are diftreinable im-
mediately by the leflbr for his tenant's rent, as a punifliment to
the otvncr of the beafts for the wrong committed through his
negligence ^ But if the lands were not fufficiently fenced fo as

to

g Davis V. Powel. C. B. Hill. II Geo, JL v Cro. Eliz. 545.

t I Sid. 440. u Co. Litt. 47.

Ch. 1 . Wrongs. p

to keep out cattle, the landlord cannot diflrcin them, till they
have been levant and couchant {levantes et cuhantes) on the land ;
that is, have been h^ng enough there to have laid down and rofc
up to feed ; which in general is held to be one night at leail :
and then the law prcfumes, that the owner may have notice
whither his cattle have ftraycd, and it is his own negligence not
to have taken them away. Yet, if the lefTor or his tenant were
bound to repair the fences and did not, and thereby the cattle
efcaped into their grounds without the negligence or default of the
owner ; in this cafe, though the cattle may have been levant and
couchant^ yet they are not diflreinable for rent, till actual notice
is given to the owner that they are there, and he neglects fo re-
move them ^ : for the law will not fuffer the landlord to take
advantage of his own or his tenant's wrong. 4. There are alfo
other things privileged by the antient common law ; as a man's
tools and utenfils of his trade, the ax of a carpenter, the books
of a fcholar, and the like : which are faid to be privileged for
the fake of the public, becaufe the taking them away would
difable the ovv'ner from ferving the commonwealth in his ftation.
So, beafts of the plough, averia carucae, and fheep, are privilcp-ed
from diftreffes at common law""; while dead goods or other fort of
beafts, v.'hich Braclon calls catalla otiofa, may be diftreined. But
as beafts of the plough may be taken in execution for debt, fo
they may be for diftreffes by ftatute, which partake of the nature
of executions ^. And perhaps the true reafon, why thefe and the
tools of a man's trade were privileged at the common law, was
becaufe the diftrefs was then merely intended to compel the pay-
ment of the rent, and not as a fatisfa6tion for it's nonpayment :
and therefore, to deprive the party of theinftruments and means of
paying it, would counteract the very end of the diftrefs^. 5. No-
thing fhall be diftreined for rent, which may not be rendered
again in as good plight as when it was diftreined : for which
reafon milk, fruit, and the like, cannot be diftreined j a diftrefs
Vol. III. B at

w Lutw. ijSo. y 4 Burr. j8p.

X Stat. SI Hen. III. ft. 4. de diJiriB'tone ' z Ibid. 588.

fcaccarli.

lo Private Book III.

at common law being only in the nature of a pledge or fecurity,
to be leftored in the fame plight when the debt is paid. So,
antiently, (heaves or Ihocks of corn could not be dillreined, be-
caufe fonie damage muil needs accrue in their removal : but a
cart loaded with corn might ; as that could be fafely reftored.
But now by ftatute 2 W. & M. c. 5. corn in fheaves or cocks,
or loofe in the llraw, or hay in barns or ricks, or otherwife, may
be dillreined as well as other chattels. 6. Laftly, things fixed
to the freehold may not be dillreined ; as caldrons, windows,
doors, and chimneypieces : for they favour of the realty. For
this reafon alfo corn growing could not be diftreined ; till the
ftatute II Geo. II. c. 19. empowered landlords to diftrein corn,
grafsj or other products of the earth, and to cut and gather
them when ripe. %.

Let us next confider, thirdly, how diftreffes may be taken,
difpofed of, or avoided. And, firft, I muft premife, that the law
of diftreffes is greatly altered within a few years laft paft. For-
merly they were looked upon in no other light than as a mere
pledge or fecurity, for payment of rent or other duties, or fatif-
faclion for damage done. And fo the law ftiil continues with re-
gard to diftreffes of beafts taken damage-feafant, and for other
caufes, not altered by act of parliament ; over which the dif-
treinor has no other power than to retain them till fatisfaccion is
made. But diftreffes for rernt-arrere being found by the legifla-
ture to be the fliorteft and nioft effectual method of compelling
the payment of fuch rent, many beneficial laws for this purpofe
have been made in the prefent century ; which have much al-
tered the common law, as laid down in our ancient writers.

I N pointing out therefore the methods of diftreining, I fhall
in general fuppofe the diftrefs to be made for rent ; and remark,
wiiere neceffary, the differences betweea fuch diftrefs, and one

taken for other caufes.

In

Ch. I. Wrongs. i i

In thefirft place then, all diftreflcs mud be made hy day, un-
lefs in the cafe of damage-feafant; an exception being there al-
lowed, left the beafts Ihould efcape before they are taken\ And,
when a perfon intends to make a diftrefs, he muft, by himfclf
or his bailiff, enter On the demifed premifes ; formerly during
the continuance of the leafe, but now'' he may diftrein within
fix months after the determination of fuch leafe whereon rent
is due. If theieffor does not fmd fufEcient diftrefs on the pre-
mifes, formerly he could relbrt no where eife; and therefore te-
nants, who were knavifti, made a practice to convey away their
goods and ftock fraudulently from the houfe or lands demifed, in
order to cheat their landlords. But now^ the landlord may dif-
trein any goods of his tenant, carried o^ the premifes clandef-
tinely, wherever he finds them within thirty days after, unlefs
they have been bona fide fold for a valuable confideration : and
all perfons privy to, or afiifting in, fuch fraudulent conveyance,
forfeit double the value to the landlord. The landlord may alfo
diftrein the beafts of his tenant, feeding upon any commons or
waftes, appendant or appurtenant to the demifed premifes. The
landlord might not formerly break open a houfe, to make a dif-
trefs, for that is a breach of the peace. But when he was in the
houfe, it was held that he might break open an inner door^ : and
now " he may, by the aftlftance of the peace ofticer of the pa-
rifli, break open in the day time any place, locked up to prevent
a diftrefs; oath being firft made, in cafe it be a dwelling-houfe,
of a reafonable ground to fufpecl that goods are concealed therein.

Where a man is intitled to diftrein for an intire duty, he
ought to diftrein for the whole at once ; and not for part at one
time, and part at another*". But if he diftreins for the whole,
and there is not fufficient on the premifes, or he happens to mif-
take in the value of the thing diftreindl, and fo takes an icfuf-

B 2 ficient

»

J Co.Litt. i4i. <J Co. Litt. i(5r. Comberb. 17.

b Stat. 0 Ann. c. 14. c Stat. 11 Geo. II. c. i?.

c Stat. 8 Aan. c, 14. r« Geo. II. c 19. f a Lutw. 153Z.

12 Private Book III.

ficlent diftrefs, he may take a fecond dlflrefs to complete his
remedy^.

Distresses muftbe proportioned to the thing difrreined for.
By the ftatiite of Marlbridge, 52 Hen. HI. c. 4. if any man takes
a great or unreafonabie diitrefs, for rent-arrere, he fliali be heavily
amerced for the fame. Asif ^ the landlord diftreins two oxen for
twelvepence rent ; the taking of both is an unreafonabie diilrefs j
but, if there were no other diilrefs nearer the value to be found,
he might reafonably have diftreined one of them. But for homage,
fealty, or fuit, as alfo for parliamentary wages, itisfaid that no
diflrefs can be exceffive^ For as thefe diftreffes cannot be fold,
the owner, upon making fatisfaclion,may have his chattels again.
The remedy for exceilive diftrelles is by a fpecial action on the
llatute of Marlbrido-e ; for an action of trefpafs is not maintain-
able upon this account, it being no injury at the common law'.

When the diftrefs is thus taken, the next confideration is the
difpofal of it. For which purpofe the things diftreined muft in
the firll place be carried to iome poimd, and there impounded by
the taker. But, in their way thither, they may be refcued by
the owner, in cafe the diilrefs was taken without caufe, or con-
trary to law: as if no rent be due; if they were taken upon
the highway or the like; in thefe cafes the tenant may lawfully
ii"iake refcue". But if they be once impounded, even though taken
without any caufe, the owner may not break the pound and take
them out ; for they are then in the cuilody of the law'.

A POUND {parens, which fignifics any inclofure) is either
pound-oi'^r^ that is, open overhead; or pound-fc^v^/, that is,
ciofe. By the ftatute 1 & 2 P. & M. c. 12. no diftrefs of cattle
can be driven out of the hundred where it is taken, unlefs to a

pound-

g Cro. Eliz. 13. Stat. 17 Car. II. c. 7. i i Ventr. 104. Fit7.«ibb. Sj. 4 Burr. 590.

4 Burr. 590. k Co. Litt. lOii, \6i.

h 1 Infl:. 107. 1 Ib'uL 47.

j Bio, Abr. I. njlife, ipi. frcyc^at'wc. 98.

Ch' 1. Wrongs. ^3

pound- overt within the fame fhirc; and within three miles of
the place where it was taken. This is for the benefit of the te-
nants, that chey may know where to find and replevy the dif-
trefs. And bv llatute 1 1 Geo, II. c. 1 9. which was made for the
benefit of landlords, any perfon diftrcining for rent may turn any
part of the premifes, upon which a diiirefs is taken, into a pound
^rfi hac vice^ioxitZMxiw^ of fuch diftrcfs. If a live diilrcfs, of
animals, be impounded in a common pound-overt, the owner muft
take notice of it at his peril; but if in Tuvf fpecial pound-overt,
fo conllituted for this particular purpofe, the diftreinor muft give
notice to the owner : and, in both thefe cafes, the owner,and not
the diftreinor, is bound to provide the beafls with food and ne-
ceiTaries. But if they be put in a pound-covert, as in a ftable or
the like, the landlord or diftreinor muft feed and fuftain them*".
A diftrefs of houfehold goods, or other dead chattels, which are
liable to be ftolen or damaged by weather, ought to be impound-
ed in a pound-covert, elfe the diftreinor muft anfwer for the
confcquences.

When im.pounded, the goods were formerly, as was before
obferved, only in the nature of a pledge or fecurity to compel
the performance of fatisfaclion ; and upon this account it hath
been held", that the diftreinor is not at liberty to work or ufe a
diftreined beaft. And thus the law ftill continues with regard
to beafts taken damage-feafant, and diftreftes for fuit or fervices ;
which muft remain impounded, till the owner makes fatisfaclion,
or contefts the right of diftreining, by replevying the chattels.
To replevy {replegiare, that is, to take back the pledge) is, when
a perfon diftreined upon applies to the fheriffor his officers, and
has the diftrefs returned into his own poftsffion ; upon giving
good fecurity to try the right of taking it in a fuit at law, and,
if that be determined againfthim, to return the cattle or goods
once more into the hands of the diftreinor. This is called a re-
plevin, of which more will be faid hereafter. At prefent I fliall
only obferve, that, as a diftrefs is at common law only in nature

of

ai Co. Liu. 47. s Cro- Jac, 148.

14 Private ^'Book

ofa fecurky forthe rent or damages done, a replevin anfwers
the fame end to the diftreinor as the diftrefs itfelf ; fmce the
party replevying gives fecurity to return the diftrefs, if the right
be determined againft him.

This kind of diftrefs, though it puts the owner to inconve-
nience, and is therefore a punifhment to hhn^ yet, if he co»i-
tinues obftinate, and will make no fatisfaclion or payment, it is
no remedy at all to the diftreinor. But for a debt due to the
crown, unlefs paid within forty days, the diftrefs was always
faleable at the common law°. And for an amercement impofed
at a court- leet, the lord may alfo fell the diftrefs'': partly be-
caufe, being the king's court of record, it's procefs partakes of
the royal prerogative*^ ; but principally becaufe it is in the nature
of an execution to levy a legal debt. ' And fo in the feveral
ilatute-diftreffes, before-mentioned, which are alfo in the nature
of executions, the power of fale is likewife ufually given, to ef-
fecbuate and complete the remedy. And, in like manner, by
feveral acts of parliament", in all cafes of diftrefs for rent, if the
tenant or owner do not,within five days after the diftrefs is taken,
and notice of the cai^e thereof given him, replevy the fame with
fufficient fecurity ; the diftreinor, with the flieriff or conftable,
Ihall caufe the fame to be appraifed by two fworn appraifers, and
fell the fame towards fatisfaclion of the rent and charges ; ren-
dering the overplus, if any, to the owner himfelf. And, by this
means, a full and intire fatisfaclion may now be had for rent in
arrere, by the mere act of the party himfelf, viz, by diftrefs,
the remedy given at common law ; and fale confequent thereon,
which is added by act of parliament.

Before I quit this article, I muft obferve, that the many
particulars which attend tl^ taking of a diftrefs, ufed formerly
to make it a hazardous kindJof proceeding : for, if any oneir.

regularity

o Bro. Ahr. t. dijlrefi. 71. r a W. & M. c. 5. 8 Ann. c. 14, 4 Gc«. II.

p 8 Rep. 41- ^ «--'^- i» ^C'J. ll-c. i».

^'Bro.ii/V. 5 1 Mod. 3.3c.

Ch. I.' Wrong s. 15

.regularity was committed, it vitiated the whole, and made the
diilrcinors trefpaffors ab initio \ But now by the ftatute 1 1 Geo. II.
c. 19. it is provided, that, for any unlawful acl done, the whole
fiKill not be unlawful, or the parties trefpaffors ab initio : but
that the party grieved fhall only have an action for the real
damage fuftained ; and not even that, if tender of amends is
made before any action is brought.

VI. The feizing of heriots, when due on the death of a te-
nant, is alfo another fpccies of felf-remedy ; not much unlike
that of taking cattle or goods in diftrefs. As for that divifioa
of heriots, which is called hcriot-fervice, and is only a fpecies
of rent, the lord may diftrein for this, as well as feize : but for
heriot-cuflom (which fir Edward Coke fays ", lies only in pren-
der, and not in render) the lord may feize the identical thing
itfelf, but cannot dift'rein any other chattel for it "". The like
fpeedy and effectual remedy, of feizing, is given with regard to
many things that are faid to lie in franchise ; as waifs, wrecks,
eftrays, deodands, and the like ; all which the perfon entitled
thereto may feize, without the formal procels of a fuit or adion.
Not that they are debarred of this rem.edy by action ; but have
alfo the other, and more fpeedy one, for the better aiTerting their
property j the thing to be claimed being frequently of fuch a
nature, as might be out of the reach of the law before any ac-
tion could be brought.

These are the feveral fpecies of remedies, which may be
had by the mere act of the party injured. I Ciall, next, briefly
mention fuch as arife from the joint acl of all the parties toge-
ther. x\nd thefe are only two, accord, and arbitration.

I. Accord is a fatisfaclion agreed upon between the party /^c<tz^
injuring and the party injured j which, when performed, is a '

bar

s I Ventr. 37. « Cra. Eliz. 590. Cro. Car. jffo.

t Cop. §, jj.

1 6 Private Book III.

bar of all afllons upon this account. As if a man contract to
build a houfe or deliver a horfe, and fail in it ; this is an injury
for which the fuffercr may have his remedy by aclion ; but if the
party injured accepts a fum of money, or other thing, as a fatis-
faclion, this is a redrefs of that injury, and entirely takes away

I, the aclion "". By feveral late ftatutes, particularly 1 1 Geo. II.

c. 19. in cafe of irregularity in the method of diflreining ; and
24 Geo. II. c. 24. in cafe of miftakes committed by juftices of
the peace ; even tender of fufficient amends to the party injured
is a bar of all actions, whether he thinks proper to accept fuch
amends or no.

\r^^y^i'ty^A. ^^* A R B I T R A T I o N is where the parties, injuring and injured,

■tCir-^ fubmit all matters in difpute, concerning any perfonal chattels

or perfonal wrong, to the judgment of two or more arbitrators ;

who are to decide the controverfy : and if they do not agree, it

1/ jL^^^ ufual to add, that another perfon be called in as umpire^ {im-

/ perator or impar^) to whofe fole judgment it is then referred:

or frequently there is only one arbitrator originally appointed.

^^y^^^«/r*<^'Xhis decifion, in any of thefe cafes, is called an award. And
thereby the queilion is as fully determined, and the right
transferred or fettled, as it could have been by the agreement of
the parties or the judgment of a court of juflice ^. But the
right of real property cannot thus pafs by a mere av/ard ^ : which
fubtilty in point of form (for it is now reduced to nothing elfe)
had it's rife from feodal principles ; for, if this had been per-
mitted, the land might have been aliened collufively without the
confent of the fuperior. Yet doubtlefs an arbitrator may now
award a conveyance or a releafe of land ; and it will be a breach
of the arbitration-bond to refufe compliance. For, though
originally the fubmiflion to arbitration ufed to be by word, or
by deed, yet both of thefe being revocable in their nature, it
is now become the practice to enter into mutual bonds, with
condition to fland to the award or arbitration of the arbitrators or

umpire

w 9 Rep. 79, y Brownl. jj. i Freem. 410,

X Wliait. Ang.Jacr. I. 77*, z i Roll. AIji'. i4i. i Lord Ray m, 115.

Ch. 'i. Wrongs. 17

umpire therein named ^ And experience having flievvn the great
life of thefe peaceable and domeftic tribunals, efpecially in fettling
matters of account, and other mercantile tranfactions, which are
difficult and almoft impofiible to be adjuilcd on a trial at law ; the
legiflature has now eftabliflied the ufc of them, as well in contro-
verfies where caufes are depending, as in thofe where no action
is brought, and which ft ill depend upon the rules of the common
law: enabling, by flatute 9 & lo W. III. c. 15. that all mer-
chants and others, who defire to end any controverfy, (for whick
there is no other remedy bat by perfonal accion or fuit in equity)
may agree, that their fubvaiilion of the fuit to arbitration or um-
pirage fhall be made a rule of any of the king's courts of record:
and, after fuch rule made, the parties difobeying the award fliall
be liable to be puniilied, as for a contempt of the court ; unlefs
fuch award fhall be fet ahde, for corruption or other miibe-
haviour in the arbitrators or umpire, proved on oath to the
court, within one term after the award is made. And, in con-
fequence of this ftatute, it is now become a confiderable part of
the bufmefs of the faperior courts, to fet afide fuch awards when
partially or illegally made; or to enforce their execution, when
legal, by the fame procefs of contempt, as is awarded for difo-
bedience to thofe rales and orders which are iffaed by the courts
themfelves.

a Append. N°. III. §.<?•

Vol. III.

iS Private Book III.

y^

Chapter the second.

f redress by the mere operation

OF LAW.

TH E remedies for private wrongs, which are efFe^ted by the
mere operation of law, will fall within a very narrow
compafs : there being only two infiances of this fort that at
prefent occur to my recollection ; the one that of retainer, where
a creditor is made executor or adminiflrator to his debtor j the
other, in the cafe of what the law calls a remiiter^

Lira perfon indebted to another makes his creditor or
debtee his executor, or if fuch creditor obtains letters of admi-
niflration to his debtor ; in thefe cafes the law gives him a re-
medy for his debt, by allowing him to retain fo much as will
payhimfelf, before any other creditors whofe debts are of equal
de^^'ee % This is a remedy by the mere ad of law, and gi^ounHe3
upon this reafon ; that the executor cannot, without an apparent
abiurdity, commence a fuit againft himfelf as reprefentative of
the dcceafed, to recover that which is due to him in his own
private capacity : but, having the whole perfonal eftate in his
hands, fo much as is fufilcient to anfwer his own demand is, by
operation of law, applied to that particular purpofe. Elfe, by
being made executor, he would be put in a worfe condition than

all

a I Roll. Abr. pij. Plowd. 543.

Ch. 2. Wrongs. ijj

all the reft of the world befidcs. For, thour^h a ratable pay-
ment of all the debts of thedeceafed, in equal degree, is clearly
the moft eq\iitable method, yet as every fcheme for a propor-
tionable diftributlon of the alfets among all the creditors hath
been hitherto found to be impradicable, and produdive of more
mifchiefs than it would remedy; fo that the creditor vvho Brii
commences his fuit is intitled to a prefet^snce in payment ; ifc
follows, that as the executor can commence no fuit, he mull
be paid the 1 aft of any, and ofcourfe mufl lofe hisd.-bt, in cafe
the eftate of his teftator fliould prove infolvent, unlefs he be al-
lowed to retain it. The doctrine of retainer is therefore the ne-
ceffary confequence of that other doctrine of the law, the piio-
rity of fuch creditor who firft commences his action. But the
executor fhallnot retain his own debt, in prejudice to thofe of a
higher degree; for the law only puts him in the fame lituatioii,
as if he had fued himfelf as executor, and recovered liis debt ;
which he never could be fuppofed to have done, while debts of
a higher nature fublifted. Neither fhall one executor be allowed
to retain his own debt, in prejudice to that of his co-executor
in equal degree; but both fliali be difcharged in proportion'^.
Nor fhall an executor ot his own wrong be in any cafe permitted
to retain*^.

II. PiEisriT terIs where he, who hatli the true property or ^^^e^mJeteiy
j'7^j-j5r(3/)/-?V/^//j- in lands, but is out of pofieffion thereof and hath
no right to enter without recovering pofiefiion in an action, hatli
afterwards the freehold caft upon him by fome fubfequent, and
of courfe defective, title : in this cafe he is remitted, or fenfc
back, by operation of law, to his antient and m.ore certain title''.
The right of entry, which he hath gained by a bad ti*:ie, fhall be
ipfofado annexed to his own inherent good one; and his defeafible *
efcateihall be utterly defeated and annulled, by the infiaritaneous
act of law, without his participation or confent". As if A dif-
feifes B, that is, turns him out of poiTefiion, and dies leaving a

C 2 fon

b Viner. Air. t. Executors. D. ;,. d Lite. §. 559.

c s Rep. 30. « Co. Li:t, 353. Cro. Jac. 489,

20 Private Book IIL

fon C : hereby the eftate defcends to C the fon of A, and B is
barred from entering thereon till he proves his right in an ac-
tion : now, if afterwards C the heir of the diffcifor makes a leafe
■for hfe to D, with remainder to B, the diffeifee for hfe, and D
dies J hereby the remainder accrues to B the diffeifee : who
thus gaining a new freehold by virtue of the remainder, which
is a bad title, is by acl of law remitted^ or in of his former
and furer eitate*". For he hath hereby gained a new right of
poiTefiion, to which the law immediately annexes his antient
riglit of propriety .

If the fubfeqiient elliate, or right of poffefilon, be gained by
a man's own acl or confent, as by immediate purchafe being of
full age, he lliall not be remitted. For the taking fuch fubfe-
quent efrate was his own folly, and fhall be looked upon as a
waiver oi his prior righi^. Therefore it is to be obferved, that
to every remitter there are regularly thefe incidents; an antient
right, and a new defeafihieeilate of freehold, uniting in one and
th£_iaiiie_^:erl(on^ ; which defeahble eftate muft htcaft upon the
tenant, not gained by his ownacl^or folly. The reafon given by
Littleton'', why this remedy, which operates filently and by the
mere acl: of lav/, Vv^as allowed, is fomewhat fimilar to that given
in the preceding article ; becaufe otherwife he who hath right
■would be deprived of all remedy. For as he himfelf is the per-
fon in pofTefiion of the freehold, there is no other perfon againfl
whom he can bring an action, to eftablifli his prior right. And
for this caufethe law doth adjudge him in by remitter; that is,
in fuch plight asif he had lawfully recovered the fame land by
fuit.' For, as lord Bacon obferves', the benignity of the law is
fuch, as when, to preferve the principles and grounds of law,
it depriveth a man of his remedy without his own fault, it will
rather put him in a better degree and condition than in a worfe.
'Nam quod remedio dejlitu'itur^ ipfci re valet ; ft culpa ahfit. But
there Ihall be no remitter to a right, for which the party has

no

f Finch. L. 194. Litt. §. 683. 1» §• C*?!.

" Co. Lilt. 34!}. ii<i> i ^Icm. c. 9,

Ch. 2. Wrongs. at

no remedy by adlon" : as if the ifllie in tail be barred by the
fine or warranty of his anceftor, and the freehold is afterwards
caft upon him ; he Ihall not be remitted to his eftate tail' : far
the operation of the remitter is exactly the fame, after the union
of the two rights, as that of a real action would have been be-
fore it. As therefore the ilTue in tail could not by any a(5tion
have recovered his antient eflate, he fliall not recover it by re-
mitter.

A N D thus much for thefe extrajudicial remedies, as well for
real as perfonal injuries, which are furnifhed by the law, where
the parties are fo peculiarly circumftanced, as not to be able to
apply for redrefs in the ufual and ordinary methods to the courts
of public jullice.

k Co. Litt. 349, 1 Moor. 115, t And, idS.

22 Private Book IIL

Chapter the third.
Of courts in general.

THE next, and principal, objecl of our enquiries is the re-
drefs of injuries by fu'it in courts : wherein the ad of the
parties and the act of law co-operate ; the ad of the parties
being neceffary to fet the law in motion, and the procefs of the
law being in general the only inftrument, by which the parties
are enabled to procure a certain and adequate redrefs.

And here it will not be improper to obferve, that althouo-h,
in the feveral cafes of redrefs by the act of the parties mentioned
in a former chapter% the law allows an extrajudicial remedy,
yet that does not exclude the ordinary courfe of jultice : but it
is only an additional weapon put into the hands of certain per-
fons in particular inilances, where natural equity or the peculiar
circumftances of their fituation required a more expeditious re-
medy, than the formal procefs of any court of judicature can fur-
niih. Therefore, though I m^ay defend myfelf, or relations, from
external violence, I yet am afterwards entitled to an adion of
afTault and battery : though I may retake my goods, if I have a
fair and peaceable opportunity, this power of recaption does not
debar me from my adion of trover or detinue : I may either
enter on the lands, on which I have a right of entry, or may
demand poffefTion by a real adion : I may either abate a nufance
by my own authority, or call upon the law to do it for me : I
may diftrein for rent, or have an adion of debtjat my own option :

if

a cli. J,

Ch. 3. Wrongs. 23

if I do notdiftrein my neighbours cattle damage-feafant^ I may-
compel him by action of trefpafs to make me a fair iiitisfaclion :
if a heriot, or a deodand, be withheld from me by fraud or force,
I may recover it though I never feized it. And with regard to
accords and arbitrations, thefe, in their nature being merely an
agreement or compromife, moft indifputably fuppofe a previous
right of obtaining redrefs fome other way, which is given up
by fuch agreement. But as to remedies by the mere operation of
law, thofe are indeed given, becaufe no remedy can be miniflrcd
by fuit or action, without running into the palpable abfLudity ot
a man*s bringing an action againft himfelf : the two cafes wherein
they happen being fuch, wherein the only pofable legal remedy
would be directed againft the very perfon himfelf who feeks
relief.

I N all other cafes it is a general and indifputable rule, that
where there is a legaljjght, there is alfo a legal remedy, by fuit
or action at law, whenever that right is invaded. And, in treat-
ing of thefe remedies by fuit in courts, I fliail purfue the follow-
ing method : firfl, I fhall coniider the nature and feveral fpecies
of courts of juftice: and, fccondly, I fhall point out in which
of thefe courts, and in what manner, the proper remedy may be
had for any private injury ; or, in other words, what injuries are
cognizable, and how redrelTed, in each refpedlive fpecies of
courts.

First then, of courts of juftice. And herein we will con-
iider, firft, their nature and incidents in general ; and, then,
the feveral fpecies of them, erected and acknowleged by the
laws of England.

A COURT is defined to be a place wherein juftice is judi-
cially adminiftred ^. And, as by our excellent conftitution the
fole executive power of the laws is vefted in the perfon of the
king, it will follow that all courts of juftice, which are the me-
dium

b Co. Litt. s8.

2A Private Book III.

dium by which he adminifters the laws,- are derived from the
power of the crown S For whether created by act of parHa-
ment, or letters patent, or fubfifting by prefcription, (the only
methods by which any court of judicature'' can exiH) the king's
confent in the two former is exprefsly, and in the latter impliedly
P'lven. In all thefe courts the king is fuppofed in contemplation
of law to be always prefent ; but as that is in fact impoffible,
lie is there reprefented by his judges, whofe power is only an
emanation of the royal prerogative.

For the more fpeedy, univerfal, and impartial adminiilration
of juftice between fubjecl and fubjed, the law hath appointed a
prodigious variety of courts, fome with a more limited, others
with a more extenfivejurifdi6lion ; fome conftituted to enquire
only, others to hear and determine ; fome to determine in the
iirft inftance, others upon appeal and by way of review. All
thefe in their turns will be taken notice of in their refpeclive
places : and I fhall therefore here only mention one diftinclion,
that runs throughout them all ; viz. that fome of them are courts
cf record, others not of record. A court of record is that where
the acts andjudicial proceedings are enrolled in parchment for a
perpetual memorial and teftimony : which rolls are called the
records of the court, and are of fuchhigh and fupereminent au-
thority, that their truth is not to be called in queilion. For it
is a fettled rule and maxim that nothing iliall be averred againft
a record, nor mall any plea, or even proof, be admitted to the
contrary^ And if the exiftence of a record be denied, itfhall
be tried by nothing but itfeif; that is, upon bare infpeclion
whether there be any luch record or no ; elfe there would be
no end of difputes. But, if there appear any miitake of the
clerk in making up fuch record, the court will direct him to
amend it. All courts of record are the king's courts, in right
of his crown and royal dignity ^ and therefore no other court
hath authority to fine or imprifon ; fo that the very erection of

a new

c See book I. ch. 7. e JlU.

i Co. Litt. 2.60. f Finch. L. jji.

Ch. 3.

Wrongs. 25

a new jurlfdi^lion with power of fine or imprifonmcnt makes it
inftantly a court of record ''. A court not of record is the court
of a private man ; whom the law will not intruft witli any dif-
cretionarypovver over the fortune or liberty of his fellow- fubj eels.
Such are the courts-baroti incident to every manor, and other in-
ferior jurifdictions : where the proceedings are not enrolled or
recorded ; but as well their exiftence as the truth of the matters
therein contained ftiall, if difpated, be tried and determined by
ajury. Thefe courts can hold no plea of matters cognizable by
the common law, unlefs under the value of40j; uwi oi- any
forcible injury whatfoever, not having any procefs to arreft the
perfon of the defendant ''.

I N every court there mufl: be at leaft three conftituent parts,
the ador^ reus, a.nd judex : the .ador, or plaintii], who com-
plains of an injury done ; the reus, or defendant, who is called
upon to make fatisfaction for it ; and the judex or judicial power
which is to examine the truth of the fact, to determine the law
arifmg upon that fad, and, if any injury appears to have been
done, to afcertain and by it's ollicers to apply the remedy. It
is alfo ufual in the fuperior courts to have attorneys, and advo-
cates or counfel, as alliftants.

A N attorney at law anfwers to the procurator, or proctor, ~J^^
of the civilians and canonifts'. And he is one who is put in "
the place, ftead, or turn of another, to manage his matters of
law. Formerly every fuitor was obliged to appear in perfon, to
profecute or derend his fuit, (according to the old Gothic con-
ftitution") unlefs by fpecial licence under the king's letters pa-
tent*. This is ftill the law in criminal cafes. And an idiot can-
not to this day appear by attorney, but in perfon "* ; for he hath
not difcretion to enable him to appoint a proper fabftitutc : and
Vol III. D upon

2 Salic. 400. li Motl. 388. «« aViiinhm part\lm atornpt\ vincupmif^/r."

h I Inft. jTi. k Stiernhook u'ejure Colli. I, i. e. <J.

i Pope Boniface VIII, in 6 Decretal. I. 3. 1 F. N. B. 15.

t. 16, §. 3. fpeaks of ^' frecuratoii'jus, qui i,i m Itid. xj.

26 Private Book III.

upon his being brought before the court In fo defencelefs a con-
dition, the judges are bound to take care of his interells, and
they fliail admit the beft plea in his behalf that any one prefent
can fugged ". But, as in the Roman lav/ " cum oU?n in ufu fuijfet
alterius nomine agi non poffeyfed, quia hoc non minimam incommo-
ditatem habebat^ coeperunt homines per prociiratores litigare°^''
fo with us, upon the fame principle of convenience, it is now-
permitted in general, by divers antient ilatutes, whereof the firft
is ftatute Weft. 2. c. 10. that attorneys may be made to profe-
cute or defend any action in the abience of the parties to the
fuit. Thefe attorneys are now formed into a regular corps : they
are admitted to the execution of their office by the fuperior ct>urts
"' of Weftminfter-hall j and are in all points officers of the refpec-
tive courts in which they are admitted : and, as they have many
privileges on account of their attendance there, fo they are pecu-
liarly fubjecl to the cenfure and animadverhon of the judges. No
man can praclife as an attorney in any of thofe courts, butfuch as is
admitted and fvvorn an attorney of that particular court: an attor-
ney of the court of king's bench cannot praclife in the court of
common pleas; nor vice verfa. To praclife in the court of
chancery it is alfo neceffary to be admitted a folicitor therein :
^ and by the ftatute 22 Geo. II. c. 46. no perfon fhall act as an
attorney at the court of quarter feffions, but fuch as has been re-
gularly admitted in fome fuperior court of record. So early as
the ftatute 4 Hen. IV. c. 18. it was enafted, that attorneys fiiould
be examined by the judges, and none admitted but fuch as were
virtuous, learned, and fworn to do their duty. And many fub-
fequent ftatutes "^ have laid them under farther regulations.

uolutiocou^ Of advocatesj or (as we generally call them) counfel, there

are two fpecies or degrees ; barrifters, and fcrjeants. The for-

S»i-f^U^ nier are admitted after a confiderable period of ftudy, or at leaft

ftanding, in the inns of court '' ; and are in our old books ftiled

appren-

41 Bro. Ahr. t. ikct. i. p j Jac. I. c. 7. 12 Geo. I. c. lO- i Ceo. 11,

o L'Jl. n. t.t. J(j. c. a?, ji Geo. II. c. 46. 13 Geo. II. c. afi.

q'Ste vol. I. in^od. §. i.

Ch. 3.

Wrongs. 27

2L^prentice5, apprenticii ad legem, being looked upon as merely
learners, end not qualified to execute the full oilice of an advo-
cate till they were fixteen years {landing ; at which time, ac-
cording to Fortefcue"^, they might be called to the (late and de-
gree of ferjeants, or ye'r'i;zV;?/^j- ad legem. How antient and ho-
nourable this {late and degree is, the form, I'plendor, and profits
attending it, have been fo fully difplayed by many learned wri-
ters', that they need not be here enlargeci on. I {liall only ob-
ferve, that fcrjeants at law are bound by a folemn oatli ' to do
their duty to their clients : and that by cuilom'' the judges of
the courts of Weflminller are always admitted into this vener-
able order, before they are advanced to the bench ; the original
of whicli was probably to qualify the fmfne barons of the ex-
chequer to become] uIHces of ailife, according to the exigence
of the {tatute of 14 Edw. III. c. 16. From both thefe dei^recs
Ibme are ufually felected to be his maje{i:y's counfel learned in
the law; the two principal of whom are called his attorney, and
folicitor, general. The fir{l king's counfel, under the' degree of
ferjeant, was fir Francis Bacon, who was made fo honoris caiifa,
without either patent or fee"' ; fo that the firil of the modern
order (who are now the fworn fervants of the crown, with a
{landing falary) feems to have been fir Francis North, afterwards
lordkeeper of the great feal to king Charles W. Thefe king's
counfel anfwer in fome meafure to the advocates of the revenue,
advocatifijci^ among the Romans. For they muft not be em-
ployed in any caufe againfi; the crown without fpecial licence;
in which reftriclion they agree with the advocates of the fife'':
but in the imperial law the prohibition was carried ftill farther,
and perhaps was more for the dignity of the fovereign ; for, ex-
cepting fome peculiar caufes, the fifcal advocates were not per-
mitted to be at all concerned in private fuits between fubjecf and

D 2 • fubjcd^

i

r Se LL. c. so. " of ferjeant at liw."

s Fortefc. ibid, lo Rep. pref. Dugdal. t z Inil. 114.

^'■'■?' Jurid. To whicli may be added u Fortefc. c. so. {

atr.icl by the late ferjeant Wynne, printed w See his letters. ij().

in 176s, intitled, " obfervations touching x See his life by Ro^er North. 37.

'• the antiiiuity and dignity of the de2ree y C^cl. j, 5. i.

8

R I V A T E

Book III.

fubjecl^ A cuilom has of late years prevailed of granting let-
ters patent of precedence to fnch barrifters, as the cro An thinks
proper to honour with that mark of diftindion: whereby they
are entitled to fuch rank and pre-audience'' as are afiigned in their
refpedive patents ; fometimes next after the king's attorney ge-
neral, but ufually next after his majefly's counfel then being.
Thefe (as well as the queen's attorney and folicitor generaP) rank
promifcuoufly with the king's counlcl, and together with them
lit witiiin the bar of the refpsctive courts : but receive no fala-
ries, andare not fworn ; and therefore are at liberty to be re-
tained in caules againfl thecrovvn. And all other ferjeaats and
barrifters indilcriminately (except in the court of common pleas,
where only ferjeants are admitted) may take"upon them the pro-
teclion and defence of any fuitors, whether plaintiff or defend-
ant ; who are therefore called their clients, like the dependants
upon the antient Roman orators. Thefe indeed pra6lifed^r/2//j-j
for honour merely, or at moll for the fake of gaining influence :
and fo likewife it is eftablilhed with us*", that a counfel can
maintain noaclion tor his fees ; which are given, not as locatio
vel conducfio hut 2.S qui ddiun horiGrariuin ; not as a falary or hire,
but as a mere gratuity, which a counfellor cannot demand with-
out doing wrong to his reputation'^: as is alfo laid down with
rep'ard to advocates in the civil law^, whofe honorarium was di-
rected by a decree of the fenate not to exceed in any cafe ten

' thoufand

z Ood. %. 7. 13.

a Frc-aadicnce in the courts is reckoned
of To much confeqiieiice, that it may not be
anii's to fubjoia a lliort table of the prece-
dence whicJi ufudUy obtains among the
praiftifers.

I. The king's premeir ferjeant, (fo con-

filtuted l)y fpecial patent.)
3,. The king's antient ferjeant, or the
eldetl ;;T!ong the king's ferjeants.

3. TIic king's advocate general.

4. The king's attorney general.

5. The kin;;'s fyliciior general.
(5. The king's ferjeants.

7. The king's counfel, with the <jueen's

attorney ond folicitor.
8 . Serjeants at law.
9. Tlie recorder of London.

10. Advocates of the civil law.

11. Barrifters.

In the court of exchequer two of the moft
experienced barrifters, called the poji-man
and the t:ib-mdn (from the place."; in which
they (it) have alfo a precedence in motions.

b Seld.tit. hon. i. 6. 7.

c Davis pref. jz. 1 Chan. Rep. 38.

d Davis. 13.

C Ff. II. (5. I.

Ch. 3.

Wrongs. 25

thoufand feflerces, or about 80/. of Englifli money^ And in
order to encourage due freedom of fpeech in the lawful defence
of their clients, and at the fame time to give a check to the un-
feemly Hcentioufnefs of proftitute and illiberal men (a few of A.f
whom may fometimes inlinuate themfelves even into the moft "^"^
honourable profeffions) it hath been holden that a counfel is not
anfwerable for any matter by him fpoken, relative to the caufe in
hand, and fuggefted in his client's inftruclions; although it fliould
refled upon ihe reputation of another, and even prove abfolutely
groundlefs.: but if he mentions an untruth of his own inven-
tion, or even upon inftruclions if it be impertinent to the caufe
in hand, he is then lialile to an action from the party injuredV
And counfel guilty of deceit or collulion are punifliable by the
ftatute Weftm. i. 3 Edw. I. c. 28. with imprifonment for a year
and a day, and perpetual filence in the courts : a punifhment flill
fometimes inflicted for groTs mifdemefnors in prad;ice''.

f Tac. ann. I. it. h Raym. 37*.

g Cre. Jac, >jo.

^o Private Book III

D

Chapter the fourth.

O F T H E PUBLIC COURTS o f COMMON

LAW AND EQUITY.

E are next to confider thefeveral fpecies anddiftin^ions
of courts ofjuftice, which are acknowleged andufedin
this kingdom. And thefe are either fuch as are of pubhc and
general jiirifdiclion throughout the whole realm ; or fuch as are
only of a private and fpecial jurifdidion in fome particular parts
of it. Of the former there are four forts; the univerfally efla-
blifhed courts of common law and equity ; the ecclefiaftical
coui'ts ; the courts military^; and courts maritime. And, firft, of
fuch public courts as are courts of common law or equity.

The policy of our antient conftitutlon, as regulated and ef-
tabliflied by the great Alfred, was to bring juftice home to every
' man's door, by con ftitu ting as many courts of judicature as there
are manors and townfhips in the kingdom j wherein injuries were
rcdrefled in an eafy and expeditious manner, by the fu if rage of
neighbours and friends. Thefe little courts however communi-
cated with others of a larger jurifdiction, and thofe with others
of a ftill greater power ; afcending gradually from the loweft to
the fupreme courts, which were refpedlively conftituted to cor-
recl the errors of the inferior ones, and to determine fuch caufes
as by realon of their weight and difficulty demanded a more fo-
lemn difculiion. Thecourfe ofjuflice flowing in large ftrcam

from

Ch. 4.

Wrongs. 31

from the king, as the fountain, to his fupcrior courts of record 5
and being then fubdivided into fmaller channels, till the whole
and every part of the kingxlom were plentifully watered and re-
frefhed. An inftitution that feems highly agreeable to the dic-
tates of natural reafon, as well as of more enlightened pohcy ;
being equally limilar to that which prevailed in Mexico and Peru
before they were difcovered by the Spaniards ; and that which
was ellablilhed in the Jewifh republic by Mofes. In Mexico each
tow^n and province had its proper judges, %vho heard and decided
caufes, except when the point in litigation was too intricate for
their determination ; and then it was remitted to the fuprc^V'.':'
court of the empire, eftabliihed in the capital, and confiJnno-
of tzveke judges % Peru, according to GarcilafTo de Vega (an
hiftorian defcended from the antient Incas of that country) was
divided into fmall diftricls containing ten families each, all re-
gillred, and under one magiftrate; who had authority to decide
little differences and punifii petty crimes. Fiveof thefecompo-
fed a higher clafs or ffty families ; and two of thefe laft com-
pofed another called a hundred. Ten hundreds conflitu tcd the lar-
geft di vifion, confifting of a thoufand families ; and each divifion had
it's feparate judge or magiftrate, with a proper degree of fubor-
dination"'. In like manner we read of Mofes ; that, finding the
fole adminiftration of juftice too heavy for him, he '^ chofe able
" men out of all Ifrael, fuch as feared God, men of truth, hatinj^
" covetoufnefs ; and made thera head over the people, rulers
" of thoufands, rulers of hundreds, rulers of fifties, and rulers of
" tens: and they judged the people at all fealbns; the hard caufes
" they brought unto Mofes, but every fmall matter they judged
" themfelves '^ ." Thefe inferior courts, at leafl the name and
form of them, ftill continue in our legal conftitution : but as
the fuperior courts of record have in practice obtained a concur-
rent original jurifdiction with thefe: and as there is belides a power
of removing plaints or adions thither from all the inferior ju-
rifdiclions ; upon thefe accounts (among others) it has happened

that

e Mod. Un. Hift. xxxviii. ^C), c Exoal. c, it,

b iVid. xxxix. 14.

(f^Hi^t

^2 Private Book III.

that thefe petty tribunals have fallen into decay, and almoft into
oblivion : whether for the better or the worfe, may be matter
of fome fpeculation ; when we confider on the one hand the en-
creafe of expenfe and delay, and on the other the more upright
and impartial decifion, that follow i nm this change of jurifdic-
tion.

The order I {hall obferve in difcourfing on thefe fevcral courts,
conftituted for the redrefs of civil injuries, (for with thofe of a
jurifdidion merely criminal I fliall not at prefent concern my-
felf) wiii be by beginning with the loweft, and thofe whofe ju-
rifdidion, though public and generally diiperfed throughout the
kingdom, is yet, (with regard to each particular court) confined
to very narrow limits j and fo afcending gradually to thofe of
the moft extenfive and tranfcendent power.

I. T H E loweft, and at the fame time the moft expeditious,
court of juftice known to the law of England is the comrt of
)■ piepoudre, curia pedis pulverizati : fo called from the dufty feet of
the fuitors ; or according to fir Edward Coke '', becaufe juftice
is there done as fpeedily as duft can fall from the foot. Upon
the fame principle that juftice among the Jews was adminiftred
in the gate of the city % that the procee'dings might be the more
fpeedy, as well as public. But the etymology given us by a
learned modern writer^ is much more ingenious and fatisfadory ;
it being derived, according to him, from pied pauldreaux a ped-
lar, in old french, and therefore fignifying the court of fuch
petty chapmen as relort to fairs or markets. It is a court of re-
cord, incident to every fair and market ; of which the fteward
of him, who owns or has the toll of the market, is the judge.
It was inftituted to adminifter juftice for all injuries done in that
very fair or market, and not in any prcceeding one. So that the
injury muft be done, complained of, heard, and determined,
within the compafs of one and the fame day. - The court hath

cognizance

i. 4 Tnft. 17Z. f Barrin2ton's ohfcivat. on the flat. 337.

e Ruth. c. 4.

Ch. 4.

Wrong*. 33

cognizance of all matters that can pofTibly aiife within the pre-
cinct of that fair or market; and the phiintifFmiiil make oath
that the caufe of an adion arofe there*^. From this court a writ of
error lies, in the nature of an appeal, to the courts at Vv^etlmin-
fter". The reafon of it's inftitution feenis to have been, to do
jullice expeditioufly among the variety ofpcrfons, that refort from
diiiant places to a fair or market: fince it is probable that no
other inferior court might be able to ferve it's procefs, or execute
it's judgments, on both or perhaps either of the parties ; and
therefore, unlefs this court had been erected, the complaint muft
neceflarily have reforted even in the firil inllance to fome fupe-
riorjudicature.

II. The courtbaron is a court incident to every manor in o^^^^'**''^
the kingdom, to be holden by the fteward within the faid ma-
nor. This court-baron is of two natures': the one is a cuftom-
ary court, of which we formerly fpoke", appertaining entirely
to the copyholders, in which their eftates are transferred by
furrender and admittance, and other matters tranfacied relative
to their tenures only. The other, of which we now fpeak, is. a
court of common law, and it is the court of the barons, by which
name the freeholders were fometimes antientiy called; for that it
is held before the freeholders who owefuit and fervice to the ma-
nor, the iteward being rather the regiftrar than the judge. Thefe
courts, though in their nature diftinft, are frequently confound-
ed together. The court we are now conhdering, viz. the free-
holders' court, was compoCed of the lord's tenants, who were
th.Q pares of each other, and were bound by their feodal tenure
to affift their lord in the difpenfation of domefticjuitice. This
was formerly held every three w'eeks ; and its moft important
bufinefs is to determine, by writ of right, all controve^^Ie5 re-
lating to the right of lands within the manor. It may alfbhold
plea of any perfonal actions, of debt, trefpafs on the cafe, or
the like, v/here the debt or damages do not amount to forty fhil-
VoL. III. E lings ^

g Stat. 17 Edw. IV. c. J,, i Co. Litt. 58.

]i Cro. Eliz. 773. k Book II. ch. 4. ch. 6. and ch. ii^

Jd

34 Private Book III.

lings'. Which is the fame fum, or three marks, that bounded
the jurifdiction of the antient Gothic courts in their loweft in-
ilance, or ferdiyig-courts^ fo called becaufe four were inilituted
within every fuperior diftricl or hundred". But the proceedings
/^j y on a writ of right may be removed into the county court by a
precept from the fherifF called a /o//^", " quia toU'it atqiie exim'it
\/J^i. ^ caufani e curia haronwn ". And the proceedings in all other acli-
i ons may be removed into the fuperior courts by the king's writs

oi' pone ^, or accedas ad curiam^ according to the nature of the iuit*^
After judgment given, a writ "Aid oi falfe judgment^' lies to the
courts at Weftminiler to rehear and review the caufe, and not a
writ of error ; for this is not a court of record : and therefore
in all thefe v/rits of removal, the fii fl; direction given is to caufe
the plaint to be recorded, recordari facias loquelam,

// ^j-^fur/^ III. A HUNDRED court is only a larger court-baron, being
held for all the inhabitants of a particular hundred inftead of a
manor. The free fuitors are here alfo the judges and the fteward
the reQ-iftrar, as in the caufe of a court-baron. It is likewife no
court of record; refembling the former in all points, except that
in point of territory it is of a greater jurifdiction ^ This is faid
by fir Edward Coke, to have been derived out of the county court
for the eafe of the people, that they might have juftice done to
them at their own doors, without any charge or lofs of time "^ :
but it's inftitution was probably co-eval with that of hundreds
themfelves, which were formerly obferved'' to have been intro-
duced though not invented by Alfred, being derived from the
polity of the antient Germans. The cenfeni, we may remember
were the principal inhabitants o£a diftricl compofed of different
villages, originally in number an hmidred, but afterwards only

called

1 Finch. i48. q F. N. B. 4. 70. Finch. L. 444, 443;^

m Sticrnhook dejure Goth. I. \. c. x. r F. N. B. iS.

n F. N. H. 3, 4. See append. N". I. §. 1. s Finch. L. i4R. 4 Inft. 267,

o 3 Rep. I'ref. t t In(h 7«.

P See append. N". I. §. 3. V Vol. 1. Inliod. §. 4.

Ch. 4. Wrongs. 35

called by that name" ; and who probably gave the lame denomi-
nation to rhe diltrict out of which they were chofcn. Caefar
fpeaks pofitively of the judicial power exercifed in their hundred-
courts and courts-baron. " Principes re^ionum, at que pagonim^*
(which we may fairly conftrue, the lords of hundreds and manors)
" Inter fuGs jus dicunt, controverfiafque 7ninuunt^ . And Tacitus,
who had examined their conftitution ftill more attentively, in-
forms us not only of the authority of the lords, but of that of
the cenfeni, the hundredors, or jury ; who were taken out of the
common freeholders, and had themfelves a Chare in the determi-
nation. " El'iguntur in conciliis et principes, qui jura per pagos
vicofque reddunt : centeni finguUs ^ ex plebe comites, ccnjilium fi-
mid et aufloritas, adfunf.'^ This hundred-court was deno-
minated haereda in the Gothic conftitution^ But this court, as
caufes are equally liable to removal from hence, as from the com-
mon court-baron, and by the fame writs, and may alfo be re-
viewed by writ of falfe judgment, is therefore fallen into equal
difufe with regard to the trial of actions.

IV. The county court is a court incident to the jurifdidion Cc^^'^i
of the fheriff. It is not a court of record, but may hold pleas
of debt or damages under the value of forty fllillings^ Over
fome of which caufes thefe inferior courts have, by the exprefs
wordsof the ftatuteof Gloucefter", ajurirdiclion totally cxclu-
fiveof theking*s fuperior courts. For in order to be entitled to
fue an action of trefpafs for goods before the king's jufticiars,
the plaintiff is directed to make affidavit that the caufe of action
does really and bona fide amount to 40^* ; which affidavit is now
unaccountably difufcd^, except in the court of exchequer. The
ftatutealfo 43 Eliz. c. 6. which gives the judges in all perfonal
adions, where the jury aflefs lefs damages than 40 s, a power

E 2 to

B Centiiii ex fingulis pngh fii;tt,idque lpf:tm x /Je morlh. German, c. ij.

inter Juoi vocantur ; et, quod prhm mnicrus y Stieii-ihoolc, /, i. c. i.

fuit, jam nojnen et honor efl. Tac. dc mor. z 4 Inft. i6(5.

'Germ. c. 6. a <> Edw. I. c. S.

w de kll. Call. I. 6. c. a». b i la^- 39i.'

36 Private Book III.

to certify the fame and abridge the plaintifTof his full cods, was .
ah'b meant to preverAt vexation by litigious plaintiffs ; who, for
purpofes of mere oppreiiion, might be inclinable to inftitutc fuits
in the fuperior courts for injuries of a trifling value. The county
court may alfo hold plea of many real actions, and of all perfonai
aclions to any amount, by virtue of a fpecial writ called ^juf-
tides ; which is a writ empowering the fiierifl for the fake of dif-
patch to do the fame juflice in his county court, as might other-
wife be had at Weftminfter''. The freeholders of the county are
the real judges in this court, and the flieriff is the minillerial
oflicer. The great conflux of freeholders, which are fuppofed
always to attend at the county court, (which Spelman c^ilhfonan
•pleheiaejuflitiaeettheatrumcomitrijaepoteflatis'''^\^ the reafon why
all a6ls of parliament at the end of every feilion were wont to be
there publiihed by the iheriff; why all outlawries of abfconding
offenders are there proclaimed ; and why ail popular eleclions
which the freeholders are to mal^, as formerly of flieriffs and
confervators of the peace, and ftill of coroners, verderors, and
knights of the fliire, muff ever be made in pleno comitatii^ or,
in full county court. By the ffatutc 2 Edvv. VI. c. 25. no county
court fliall be adjourned longer than for one month, confiifing
of twenty eight days. And this was alfo the antient ufage, as
appears from the laws of king Edv/ard the elder^ : " praepofitus
" (that is the uieriff) ad qiiartam circiter feptimanam frequenteni
'• populi coticionem cehhrato ; cuique jus did to ; litefque Jingulas di-
" vimito.'^ In thofe times the county court was a court of great
dignity and fplendor, the bifliop and the ealdorman (or earl) with
the principal men of the ihire fitting therein to adminifter juf-
tice both in lay and ecclefiaftical caufes^ But it's dignity was
much impaired, when the bifhop was prohibited and the earl
neglected to attend it. And, in modern times, as proceedings
are removeable from hence into the king's fuperior courts, by
writ o^ pone or recordare^^ in the fame manner as from hundred-
courts

c Finch. 318. F. N. B. 15%, f LL. Eadgay'i. c.s.

d C'.nff. V. camitattis. 2 F. N. B. 70. Finch. 44 j.

t f. II.

Cli. 4. Wrongs. 37

courts, and courts-baron; and as the fame writ of falfe judgment
may be had, in nature of a writ of error ; this has occaiioned
the fame difufe of bringing aclions therein.

These are the feveral fpecies of common law courts, which
though difperfed univerflilly throughout the realm, areneverthe-
lefsof a partial jurifdiAion, and confined to particular diftricts :
yet communicating with, and as it were members of, the fu-
perior courts of a more extended and general nature; which are
calculated for the adminiftration of redrefs not in any one lord-
fnip, hundred, or county only, but throughout the whole king-
dom at large. Of which fort is

V. The court oi common pleas, or, as it is frequently termed Icrr* '^ ^^^
inlaw, the court oi common bench.

B Y the antient Saxon confdtution there was only one fuperlor
court of juftice in the kingdom : and that had cognizance both
of civil and fpiritual caufes ; Wr. the tv it tena- gemote, or general
council, which affembied annually or oftener, wherever the king
kept his Eallcr, Chriftmas, or Wliitfontide, as well to do private
julliceas toconfult upon public bufmefs. At the conqueft the
ecclefiafticaljurifdiclion was diverted into another channel ; and
the conqueror, fearing danger from tliefe annual parliaments,
contrived alfo to feparate their minifterial power, as judges, from
their deliberative, as counfellors to the crown. He therefore ef-
tabliflied a conftant court in his own hall, thence called by Erac-
ton '^ and other antient authors i^z/Z^r*?^?,^, or W^r^^/V. This court
was compofed of the king's great officers of flate refident in his
palace, and ufually attendant on his perfon : fuch as the lord
high conflable and lord marefchal, who chiefly preflded in mat-
ters of honour and of arms ; determining according to the law
miUtary and the law of nations. Befides thefe there were the
lord high ileward, and lord great chamberlain ; the fteward of
the houHiold \ the lord chancellor, whofe peculiar bufinefs it was

to

h ;, 3. fr. I. f. 7,

8 Private Book IIL

to keep the king's feal and examine all fiich writs, grants, and
letters, as were to pafs under that authority ; and the lord high
treafurer, who was the principal advifer in all matters relatin
to the revenue. Thefe high officers were affifted by certain per
fons learned in the laws, who were called the king's jufticiars or
juftices ; and by the greater barons of parliament, all of whom
had a feat in the aula regia, and formed a kind of court of appeal,
or rather of advice, in matters of great moment and difficulty.
All thefein their feveral departments tranfacled all fecular bufincfs
both criminal and civil, and likewife the matters of the revenue :
and over all prefided one fpecial magiRrate called the chief jufti-
ciar or capitalis jufticiarius totius Angliae ; who was alfo the prin-
cipal minifter of ftate, the fecond man in the kingdom, and by
virtue of his office guardian of the realm in the king's abfence.
And this officer it was, who principally determined all thevaft
variety of caufes that arofe in this extenfive jurifdiction ; and
from the plenitude of his power grew at length both obnoxious
to the people, and dangerous to the government which em.ployed
him^

This great univerfal court being bound to follow the king's
houfeholdin all his progreffes and expeditions, the trial of com-
mon caufes therein was found very burthenfome to the fubjeft.
Wherefore king John, who dreaded alfo the power of the juf-
ticiar, very readily confented to that article which now forms the
eleventh ch-A.^tcv oi tnagna carta, andenacls, " that coimnumapla-
" c'lta non feqiiantur curiam regis, fed teneantur in aliquo loco certo,**
This certain place was eflabliihed in Weftminfter-hall, the place
where the aula regis originally fate, when the king refided in that
city •, and there it hatli ever fince continued. And the court
being thus rendered fixed and flationary, the judges became fo
too, and a chief with other jullices of the common pleas was
thereupon appointed; with jurifdiction to hear and determine
all pleas of land, and injuries merely civil between fubjecl and
fubjecl. Which critical eftablilhment of this principal court of

commoa

j Spelm. CI. 331, a, 3. Cill;. Hift. C. P. ifttrod. 17.

Ch. 4. Wrongs. ^p -

common law, at that particular jimclure and that particular
place, gave rife to the inns of court in it's neighbourhood j and,
thereby collecting together the whole body of the common law-
yers, enabled the law itfelf to withfland the attacks of the ca-
nonifts and civilians, who laboured to extirpate and deftroy it '.
This precedent was foon after copied by king Philip the fair in
France, who about the year 1302 fixed the parliament of Paris to J301
abide conilantly in that nietropohs; which before ufed to follow
theperfon of the king, wherever he went, and in which he himfelf
ufed frequently to decide the caufes that were there depending :
but all were then referred to the fole cognizance of the parlia-
ment and it's learned judges". And thus alfo in 1495 the em- l4-9l>
peror Maximilian I. fixed the imperial chamber (which before
always travelled with the court and houihold) to be conflantly
held at Worms, from whence it was afterwards traniiated to
Spire '.

The aula regia being thus ftripped of fo conliderable a branch
of It's jurifdiction, and the power of the chief jufliciar being
alfo confiderably curbed by many articles In the great charter,
the authority of both began to decline apace under the long and
troublefome reign of king Henry III. And, in farther purfuance
of this example, the other feveral offices of the chief jufticiar r"
were under Edward the firft (v/ho new modelled the whole frame <^i<^^»"<5'-Z
ofour judicial polity) fubdividcd and broken into diitin<fb courts
of judicature. A court of chivalry was erected, over which the
conftable and marefchal prelided ; as did the fieward of the
houfhold over another, conftituted to regulate the king's domeftic
fervants. The high fteward, with the barons of parliament,
formed an auguft tribunal for the trial of delinquent peers ; and
the barons referved to themfelves in parliament the right of re-
viewing the fentences of other courts in the laft refort. The
diftributlon of common juftiee between man and man was thrown
into fo provident an order, that the great judicial officers were

made

! See vol, I. introd.. §. i. I VtU, ixix. jjSj.

It Mod. Ua. Ililt. xxiii. 35*.

^o Private Book III.

made to form a checque upon each other : the court of chancery
ifluing all original writs under the great feal to the other courts ;
the common pleas being allowed to determine all caufes between
private fubjecrs; the exchequermanaging the king's revenue; and
the court of king's bench retaining all the jurifdiclion which
was not cantoned out to other courts, and particularly the fuper-
intendance of all the reft by way of appeal ; and the fole cog-
nisance of pleas of the crown or criminal caufes. For pleas or
fuits are regularly divided into two forts; pleas of the crown,
•which comprehend all crimes and mifderaefnors, wherein the
king (on behalf of the public) is the plaintiif ; and common fleas,
which include all civil actions depending between fubject and
iubjecl. The former ofthefe were the proper object of the ju-
riiciidion of the court of king's bench; the latter of the court
of common pleas: v.^hich is a court of record, and is ftiled by
fir Edward Coke"' the lock and key of the common law; for
herein only can real actions, that is, actions which concern the
right of freehold or the realty, be originally brought : and all
other, or perfonal, pleas between man and man are likewife here
determined ; tliough in fomc of them the king's bench has alfo a
concurrent Authority.

The judges of this court are at prefent"four in number," one
chief and three ■pulfne juftices, created by the king's letters pa-
tent, w^ho fit every day in the four terms to hear and determine
all matters of law arifmg in civil caufes, whether real, perfonal,
or mixed and compounded of both. Thefe it takes cognizance of,
as well originally, as upon removal from the inferior courts be-
fore-mentioned. But a writ of error, in the nature of an appeal,
lies from this court into the court of king's bench.

VI. The

m 4 Infl. 99. mi.f'it at all limes be fully fupplieii with
n King James T, during part of his reign judges of the fuperior courts. And, in Tub-
appointed five judges in every court, for fcquent reigns, upon the permanent indif-
the benefit of a calling voice in cafe of a pofition of a judge, a fifth hath beew fomc-»
difTcrence in opinion, and that the circiuts times appointed. Raym, 475.

Ch. 4.' Wrongs. 41 .

VI. The court of king's bench (fo called becaiife the king /^'^'^'^'^'^
Ufed formerly to fit there in perfon% the llile of the court Hill
being coram ipfo rege) is the fiipreme court of common law in the
kingdom; confiiling of a chief juftice and three />z///?2^juilices,
who are by their ofiice the fovereign confervators of the peace
and fuprcme coroners of the land. Yet, though the king liim-
felf ufed to fit in 'this court, and ftill is fuppofed fo to do ; he
did not, neither by law is he empowered*' to, determine any
caufe or motion, but by the mouth of his judges, to whom he
hath committed his wholejudicial authority ''.

This court (which as we have faid) is the remnant of the
aula regia^ is not, nor can be, from the very nature and coniti-
tution of it, fixed to any certain place, but may follow the king's
perfon wherever he goes ; for which reafon al! procefs iffuing out
of this court in the king's name is returnable " uklcunqiie fueri-
*' mus in AngUa,^' It hath indeed, for iome centuries pail, uluaily
fate at Weftminfter, being an antlent palace of the crown ; but
might remove with the king to York or Exeter, if he thought
proper to command it. And we find that, after Edward I. had
conquered Scotland, it actually fate at Roxburgh". And this
moveable quality, as well as it's dignity and power, are fully ex-
prefled by Braclon, when he fays that the juftices of this court
are " capitales^ generates^ perpetui, et majores ; a latere regis refi-
^^entes; qui omnium aliorum corrigere tenentur injurias et errores^J*
And it is moreover efpecially provided in the articuli fuper cartas ^
that the king's chancellor, and the juftices of his bench, fhall
Vol. III. # F follow

o 4 Inft. 73. times, James I. is faid to have fate there in

p See Iiook I. ch. 7. The king ufed to de- perfoti, but was informed by iiis judges that

cide catifes in perfon in ihe. aula regia. " In he eould not deliver an opinion.

*' curia domhii regis ipfe in propria perfona jura q 4 Infl. 71.

" decernit." (Dial de Scacch. I t. §. 4.) Af- r M. 10, zi Edvv I. H^e Hift, C. I., aoo.

ter it's difiolution. king Edward I. freijuently s /. 3. c. 10.

fate in the court of king's bench. (See ths t aS Edw. I. c. 5.

records cited 4 Uurr. S51.) And, in later

42

Private Book lit.

follow him, fo that he may have at all times near unto him fome
that be learned in the laws.

The jnrifdiclion of this court is very high and tranfcendcnt.
It keeps all inferior jurirdictions within the bounds of their au-
thority, and may either remove their proceedings to be determi-
ned here, or prohibit their progrefs below. It fupcrintends all
civil corporations in the kingdom. It commands magiftrates and
others to do what their duty requires, in every cafe where there
is no other fpeciiic remedy. It protefts the liberty of the fub-
jecl, by fpecdy and fummary interpolition. It takes cognizance
both of criminal and civil caufes ; the former in what is called
the crown-fide or crown office ; the latter in the plea-fide of the
court. The jurifdiction of the crown-fide it is not our prefent
bufinefs to confider : that will be more properly difcufled in the
enfuing volume. But on the plea-fide, or civil branch, it hath
an original jurifdiction and cognizance of all /r*?/):'^/^^, and other
injuries, alleged to be committed vi ef annis : which, being a
breach of the peace, favour of a criminal nature, although the
adion is brought for a civil remedy ; and for which the defend-
ant ought in ftriiftnefs to pay a fine to the king, as well as da-
mages to the injured party ". This court might likewife, upon
the divifion of the aula regla, have originally held plea of any
other civil acllon whatfoever, (excepting adions real, which are
now very fcldom in ufe) provided the defendant was an ofliger
of the court; or in the cuftodyof the marfliall, or prifon-keeper,
of this court, for a breach of the peace or any other offence "'.
In procefs of time, by a fiction, this court began to hold plea
of all perfonal aclions whatfoever, and has difttinued to do fo for
ages'": it being furmi fed that the defendant is arrefted for a fup-
pofed trefpafs, which he never has in reality committed ; and
being thus in the cuftody of the marfhall of this court, the
plaintiff is at liberty to proceed againft him for any other perfo-
nal injury: which furmife, of being in the marlhali's cuflody,

the

u Finch. L. 198. X Jhid. 7*.

W 4 luft. 71.

Ch. 4.

Wrongs. 43

the defendant is not at liberty to difpllte^ And thefe fictions of
law, though at liril they may ilartk the iludent, he will find upon
farther conlideration to be highly beneficial and ufeful : efpecially
as this maxim is ever invariably obferved, that no fiction fhall ex-
tend to work an injury ; it's proper operation being to prevent a
mifchief, or remedy an inconvenience, that might refult from the
general rule of law^v So true is it, that infclione juris femper fiib-
fijl'it ae\uitas^. In the prefent cafe, it gives the fuitor his choice
of more than one tribunal, before which he may infcituce his ac-
tion ; and prevents the circuity and delay of juilice, by allowing
that fuit to be- originally, and in the firft inttance, commenced in
this court, which after a determination in another, might ulti-
mately be brought before it on a writ of error.

For this court is likewife s. court of appeal. Into which may
be removed by writ of error all determinations of the court of
common pleas, and of all inferior courts of record in England :
and to which a writ of error lies alfo from the court of king's
bench in Ireland. Yet even this fo high and honourable court is
not the dernier refort of the fubjed : for, if he be not fatisfied with
any determination here, he may remove it by writ of error into
the houfe of lords, or the court of exchequer chamber, as the
cafe may happen : according to the nature of the fuit, and the
mannerin which it has been profecuted.

VII. The court of exchequer is inferior in rank not only to lu'^/^^^^^
thecourtof king's bench, but to the common pleas alfo: but I
havechofen to confider it in this order, on account of it's double
capacity, as a court of law and a court of equity alfo. It is a
very antient court of record, fet up by William the conqueror'',
as a part of t\\Qauia regia^^ though regulated and reduced to it's

F 2 prefent

y Thus too in the civil law : contra fie- caufa dlfpofit'w. (Cothofred. in Ff. I. zi. t. z.y

t'ionem non admittitur probatio : quid enhn effi- z 3 Rep. 30. z Roll. Rep. 501.

ceret probatio veritatis, ubi fiHio advcrfus ve- a 11 Rep. 51. Co. Litt. 150.

rltaiem fiugit ? Nam fi8io nihil aliud eft, qtiam b h^imh. Arch eion. 14.

Ugliadverjui vcritatem in re pjfibili ex pfta c Madox. Hilt. Exch. 103.

^^4 Private Book III.

prefent order by king Edward P ; and intended principally to
order the revenues of the crown, and to recover the king's debts
and duties^. It is called the exchequer, fcaccbarium, from the
checqued cloth, refembling a chefs-board, which covers the table
there ; and on which, when certain of the king's accounts are made
up, the fums are marked and fcored with counters. It confifts of
two diviiions : the receipt of the exchequer, which manages the
royal revenues and with which thefe commentaries have no con-
cern ; and the court or judicial part of it, which is again fub-
divided into a court of equity, and a court of common law.

The court of equity is held in the exchequer chamber before
the lord treafurer, the chancellor of the exchequer, the chief
baron, and thvec pui/ne ones. Thefe Mr Selden conjectures ^ to
have been antiently made out of fuch as were barons of the king-
dom, or parliamentary barons; and thence to have derived their
Kame : which conjecture receives great ftrength from Braccon's
explanation oi magna carta, c. 14. which directs that the earls and
barons be amerced by their peers ; that is, fays he, by the barons of
the exchequer^. The primary and original bulinefs of this court is
to call the king's debtors to account, by bill filed by the attorney
general; and to recover any lands, tenements, or hereditaments
any goods, chattels, or other profits or benefits, belonging to
the crown. So that by their original conititution the jurifdiction
of the courts of common pleas, king's bench, and exchequer,
"was entirely feparate and difcinct : the common pleas being in-
tended, to decide all controverfies between fubject and fubject ;
the king's bench to correct all crimes and mifdemelnors that
amount to a breach of the peace, the king being then plaintiff,
s,s fuch oifences are in open derogation oitho. jura regalia of his
crown ; and the exchequer to adjuft and recover his revenue,
wherein the king alfo is plaintiff, as the withholding and non-
payment thereof is an injury to his, jura fijcal'ia. But, as by a
liction almoit all forts of civil actions are now allowed to be

brough

d Spclm, Cml. I. in cod, icg. vet, apud. f Tit. hon. z. %. iff.
Wilklns. g /• 3- <'■• *• f. I. §. 3-

€ 4 lali. 103— — il<J.

Ch. 4.

Wrongs. 45

brought In the king's bench, in like manner by another ficllon
all kinds of perfonal fuits may be profecuted in the court of ex-
chequer. For as all the officers and miniflers ot this court have,
likcthofe of other fuperior courts, the privilege of fuingand being
fued only in their ov^n court ; fo alfo the king's debtors, and far-
mers, and all accomptants of the exchequer, are privileged to fue
and implead all mannerof perfons in the ilime court of equityjthat
they themfelves are called into. They have likewife privilege to
fue and implead one another, or any ftranger, in the fame kind
of common law actions (where the perfonalty only is concerned)
as are profecuted in the court of common pleas.

This gives original to the common law part of their jurlf-
diction, which was eftabliihed merely for the benefit of the king's
accomptants, and is exercifed by the barons only cf the exche-
quer, and not the treafurer or chancellor. The v.'rit upon which
all proceedings here are grounded is called a quo ?ninus : in which ^*^
the plaintifl'fuggefts that he is the king's farmer or debtor, and
that the defendant hath done him the injury or damage com-
plained of; quo minus fuficiens exiflit^ by which he is the lefs
able, to pay the king his debt or rent. And thefe fuits are ex-
prefsly direded, by what is called the ftatute of Rutland'', to be
confined to fuch matters only as fpecially concern the king or his
miniilers of the exchequer. And by the articuli fuper cartas'^ it
is enacled, that no common pleas be thenceforth hoJden in the
exchequer, contrary to the form of the great charter. But now,
by the fuggeftion of privilege, any perfon may be admitted to
fue in the exchequer as well as the king's accomptant. The fur-
mife, of being debtor to the king, is therefore become matter
of form and mere words ofcourfe, and the court is open to all
the nation equally. The fame holds with regard to the equity
fide of the court :. for there any perfon may file a bill againft
another upon a bare fuggeiiion that he is the king's accomptant ;
but whether he is fo, or not, is never controverted. In this court
on the equity fide, the clergy have long ufed to exhibit their

bills

h xo Edw. I. c. II. i 18 Edw. I. c. 4.

f)7»/n/M,

4^

RiVATE Book III.

bills for the non-payment of tithes ; in which cafe the furmife of
being the king's debtor is no lidion, they being bound to pay him
their firft fruits, and annual tenths. But the chancery has of late
years obtained a large lliare in this bulinefs. ,

A N appeal from the equity fide of this court lies immediately
to the ho afe of peers j but from the common law fide, in pur-
fuanceof theftatute 31 Edw.lII. c. 12, a writ of error mull be
firft brought into the court of exchequer chamber. And from
their determination there lies, in the dernier refort, a writ of er-
ror to the houfe of lords.

/j/tri/Htery. VIII. Th E high court of chancery is the only remaining, and
in matters of civil property by much the moft important of any,

Ij of the king's fuperior and original courts of juftice. It has it's

name of chancery, cancellaria^ from the judge who prefides here,
the lord chancellor or f/^/z^^^f^m/j; who, fir Edward Coke tells
us, is fo termed a camellando, from cancelling the king's letters
patents when granted contrary to law, which is the highefl point
of his jurifdiction". But the office and name of chancellor
(however derived) was certainly known to the courts of the Ro-
man emperors j where it originally feems to have fignified a chief
fcribe or fecretary, who was afterwards invefted with feveral ju-
dicial powers, and a general fuperintendency over the reft of the
officers of the prince. From the Roman empire it pafiTed to the
Roman church, ever enmlous of imperial ftate ; and hence
every bifhop has to this day his chancellor, the principal judge
of his confiftory. And when the modern kingdoms of Europe
were eftabliihed upon the ruins of the empire, almoft every ftate
preferved it's chancellor, with different jurifdiclions and digni-
ties, according to their different conftitutions. But in all of them
he feems to have had the fupervifion of all charters, letters, and
fuch other public inftruments of the crown, as were authenti-
cated in the moft folemn manner ; and therefore when feals came
in ufcj he had always the cuftody of the king's great feal. So that

the

k 4 Inft, 88.

Ch. 4.

Wrongs. 47

the office of chancellor, or lord keeper, (whofe authority by ftatute
5 Eliz. c. 18. is declared to be exadly the fame) is with us at this
day created by the mere delivery of the king's great feal into his
cullody': whereby he becomes without writ or patent, an of-
ficer of the greatefl weight and power of any now fublifting in
the kingdom ; and fuperior in point of precedency to every tem-
poral lord™. lie is a privy counfellor by his office, and, accord-
ing to lord chancellor Ellefmcre", prolocutor ot the houfe of
lords by prefcription. To him belongs the appointment of all
juftices of the peace throughout the kingdom. Being formerly
ufually an ecclefiaftic, (for none elfe were then capable of an
office fo converfant in writings) and preiiding over the royal cha-
pel °, he became keeper of the king's confcience ; vilitor, in
right of the king, of all hofpitals and collef;es of the king's
foundation ; and patron of all the king's livings under the value
of 20/. per anmun in the king's books. He is the general guar-
dian of all infants, idiots, and lunatics ; and has the general fu-
perintendance of all charitable ufes in the- kingdom. And all
this, over and above the vaft and extenlivejurifdiclion w^hich he
exfercifes in his judicial capacity in the court of chancery :
wherein, as in the exchequer, there are two diflincl tribunals ;
the one ordinary, being a court of common law ; the other ex-
traordinary, being a court of equity.

The ordinary legal court is much more antient than the court
of equity. It's jurifdiclion is to hold plea upon 2i fare facias to
repeal and cancel the king's letters patent, when made againfl
law, or upon untrue fuggeilions ; and to hold plea of petitions,
mcnflrans de droit, traverfes of offices, and the like; when the
king hath been advifed to do any act, or is put in pofleffion of
any lands or goods, in prejudice of a fubject's right*'. On proof
of which, as the king can never be fuppofed intentionally to do
any wrong, the law quellions not but he will immediately re-

drefs

1 hzmh. Archeion. (Jj. i Roll. Abr, 385. o Madox. hift. of exck. 4Z.
n Stat. 31 Hen. VIII. C. 10. p 4 Rep. 54.

n of the oiBce of lorti clianceilcr. edit, i6si.

48

Private Book III.

^

drefs the injury ; and refers that confcientious tafk to the chan-
cellor, the keeper of his confcience. It aifo appertains to this
court to hold plea of all perfonal aclions, where any officer or
minifter of the court is a party''. It might likevvdfe hold plea (by
fcire facias) of partitions of lands in coparcenary ■", and of dower %
where any ward of the crown was concerned in interefi, fo long
as the military tenures fubiifted : as it now may alfo do of the
tithes of foreft land, where granted by the king and claimed by
a ftranger againil; the grantee of the crown' ; and of executions
on flatutcs, or recognizances in nature thereof by the flatute
23 Hen. Vm. c. 6. " But if any caufe comes to ilTue in this court,
that is, if any facl be difputed between the parties, the chancel-
lor cannot try it, having no power to fummon a jury ; but mull
deliver the record propria manu into the court of king's bench,
where it fhall be tried by the country, and judgment fiiall be
there given thereon ". And, when judgment is given in chan-
cery, upon demurrer or the like, a writ of error, in nature of
an appeal, lies out of this ordinary court into the court of king's
bench "": though fo little is ufually done on the common law
iide of the court, that I have met with no traces of any writ of
error^ being aftually brought, lince the fourteenth year of queen
Elizabeth, J. D. isi^^

I N.this ordinary, or legal, court is alfo kept the officina jiif-
titiae : out of which all original writs that pafs under the great
fealj-all commiflions of charitable ufes, fev/ers, bankruptcy,
idiocy, lunacy, and the like, doillue; and for which it is always
open to the fubject, who may there at any time demand and
have, ex debitojujlitiae, any writ that his occafions may call for.
Thefe writs (relating to the bulinefs. of the fubject) and the re-
turns

q4lnft. 80. 2947.47. Dyer. 315. i Roll. Rep, 187.

r Co. Litt 171- F. N. B. 6i. 4 Inft. 80.

s V,xo. Abr. fit. do-wer.66. Mcor. 565. y The opinion of lord keeper North \a

t Bro. Abr.t.difmes. 10. lOSi (i Vern. 131. 1 Equ. Caf. abr. 119.)

u X Roll. Abr. 469. that no fuch writ of error lay, and that aa

w Cro. Jac. 11. injui-iclion might be idued againft it, feems

X Yearbook, 18 Ediu.III.is. 17 AJf. 14. not to have been well confulered.

Ch. 4.

Wrongs. ^p

turns to them were, according to the fimplicity of antient times,
originall)'" kept in a hamper, in hanaperio\ and the others (rela-
ting to inch matters wherein the crown is immediately or me-
diately concerned) were prefer ved in a Kttle fack or bag, inparva
baga ; and thence hath arifen the diftinction of the banaper of-
fice, and petty bag office, which both belong to the common law-
court in chancery.

But the extraordinary court, or court of equity, is now be-
come the court of the greateil judicial confequence. This dif-
tinclion between law and equity, as adminittred in different courts,
is not at prefent known, nor feems to have ever been known,
in any other country at any time^: and yet the difference of
one from the other, v/hen adminiftred by the fame tribunal, was
perfectly familiar to the Romans'"; ths jas praetorium, or dif- '

cretion of the praetor, being diftincl from the leges or flanding
laws " : but the power of both centered in one and the fame
magilirate, who was equally intrufted to pronounce the rule of
law, and to apply it to particular cafes by the principles of equity.
With us too, the aula regia, which was the fupreme court of
judicature, undoubtedly adminiftered equal juflice according to
the rules of both or either, as the cafe might chance to require :
and, when that was broken to pieces, the idea of a court of
equity, as diflinguifhed from a court of law, did not fubliil in
the original plan of partition. For though equity is mentioned
by Bracton " as a thing contrafted to flricl law, yet neither iq^ - /^
that writer, nor in Glanvil or Fleta, nor yet in Britton (compo-^''^-^^^
fed under the aufpices and in the name of Edward I, and treat-
VoL. III. G insr

z The council of confcience, inftituted by as well upon principles of equity as thofe

John III, king of Portugal, to review the of pofitive law. (Lord Kaims. hiftor. law-

fentcnces of all inferior courts, and mode- trafts, I. 31$. 330. princ. ofequit. 44)

rate them by equity, (Mod. Un. Hift. xxii. b Tlius Cicero; "jam illis promtjfis noii

237.) feems rather to have been a court of " efe JlandUm, quh non videt, quae coaBas

a?p£^'« " quh metu et deceptus dolo promifcrlt ? quae

a Thus too the parliament of Paris, tiie " quidem plerumque jure praetorio liberaiitur,

court of fcffion in Scotland, and every other " nonmdla IcgihifS." Offic. /. i.

juriflidion in Europe of which we have any c I. i. c. l-fol. aj.
tolerable aacount, found all their decifions

so

Private

Book IIL

ing particularly of courts and their feveral jurifdictions) is there
a fyllable to be found relating to the equitable jurifdiction of the
court of chancery. It feems therefore probable, that when the
courts of law, proceeding merely upon the ground of the king's
original writs and confining themfelves ftriclly to that bottom,
gave a harfii or imperfect judgment, the application for redrefs
ufed to be to the king in perfon aflifted by his privy council ;
(from whence alfo arofe the jurifdiclion of the court of requefts'',
which was virtually abolifhed by the (latute i6 Car. I. c. lo.) and
they were wont to refer the matter either to the chancellor and
a feied: committee, or by degrees to the chancellor only, who
mitigated the feverity or fupplied the defects of the judgments
pronounced in the courts of law, upon weighing the circum-
ftances of the cafe. This was the cuftom not only among our
Saxon anceftors, before the inftitution of the aula regia % but alfo
after it's diffolution, in the reign of king Ed^vardi^; and per-
haps during it's continuance, in that of Henry IP.

I N thefe early times the chief juridical employm.ent of the chan-
cellor mud have been in devifing new writs, directed to the courts
of common law, to give remedy in cafes where none was before
adminiftered. And to quicken the diligence of the clerks in the
chancery, who were too much attached to antient precedents,
it is provided by flatute Weftm. 2.13 Edw. I. c. 24. that " when-
" foeverfrom thenceforth in one cafe a writ (hall be found in the
«« chancery, and in a like cafe failing under the fame right and
" requiring like remedy no precedent of a writ can be produced,

" the

d The matters cognizable in this court,
nimediately before it's difl^jKition, were
« almoft all fuits, that by colour of equity,
' or fupi'Hcation made to the prince, might
' 1)C brought before him : but originally
' and properly all poor men's fuits, which
' were made to his majefty by fiipplic;uion ;
' and upon wliich they were infilled to have
' right, without payment of any money for
' the fame." (Smith's coiumoiivvcalih. b, 3.
«c.7.)

e Nemo ad regcm appcUct pro aVtqua lite, n'lfi
jus domi ccnfequi noii pojjlt. Si jus n'lmis f eve-
rum fit, allcviatio deinde quaeratur apud regcm.
L. L. Edg. c. 1.

£ Lambard. Archeion. jp.

g Joannes Sarifburienfis (who died A. D.
iiSj, 1(5 Hen. II.) fpeaking of the chan-
cellor's office in the verfes prefixed to his
poJycraticoii, has thefe lines ;

U'lC eft, qui leges rcgn't canccllat iinqwiSy
Et ma»data pii principis aequo facit.

Ch. 4. Wrongs. 51

a

<c

(C
(C

the clerks in chancery fhiiil agree in forming a new one : and,
if they cannot agree, it fhall be adjourned to the next parha-
ment, where a writ fliall be framed by confent of the learned
in the law'', left it happen for the future that the court of our
lord the king be deficient in doing juftice to the fuitors." And
this accounts for the very great variety of writs of trefpafs on
the cafe, to be met with in the regifter; whereby the fuitor had
ready relief, according to the exigency of his bufinefs, and adapted
to the fpecialty, reafon, and equity of his very Cafe'. Which
proviiion (with a little accuracy in the clerks of the chancery, and
a little liberality in the judges, by extending rather than narrow-
ing the remedial effects of the writ) might have effectually an-
fwered all the purpofes of a court of equity" ; except that of ob-
taining a difcovery by the oath of the defendant.

But when, about the end of the reign of king Edward III,
ufes of land were introduced^, and, though totally difcountenan- (D, ^
ced by the courts of common law, were confidered as fiduciary
depofits and binding in confcience by the clergy, thefeparate ju-
rifdiclion of the chancery asaeourt of equity began to be efia-
blifhed"'; and John Waltham, who was bifliop of Salifbury and
chancellor to king Richard II, by a ftrained interpretation of the
above-mentioned ftatute of Weftm. 2. devifed the vjYitoifubpcena,
returnable in the court of chancery only, to make the feoffee to
ufes accountable to his cefiuy queufe: which procefs was afterwards
extended to other matters wholly determinable at the common
law, upon falfe and ficlitious fuggeftions; for which therefore the
chancellor himfelf is by ftatute 17 Ric. IL c. 6. directed to give
damages to the parties unjuftly aggrieved. But as the clergy, ft)
early as the reign of king Stephen, had attempted to turn their

G 2 eccle-

h A great variety of new precedents of " cjfoventementufe come \l ejl ore, ft nous at-

writs, in cafes before unprovided for, are " tendomi-s tieh aBwns fur les cafes, et main~ '

given by this very ftatute of Weflm. *. " tciiiomns k jurijd'iBion de ceo court et d' au-^

i Lamb. Archeion. (Ti. *« tercourts." (Yearb. ii Edw IV. 23.

k This was the opinion of Fairfax, a very 1 See book II. ch. zo.

learned judge in the time of Edward the m Spelm. Clojf. lod, i Lev. 141*.

fourth. " Lefub^oaia (fays he) neferroit mj

r
0

52

Private

Book III.

ecclefiaftical courts into courts of equity, by entertaining fuits
j)ro laefionejidei^ as a fpiritual offence againft confcience, in cafe
of nonpayment of debts or any breach of civil contracls" ; till
checked by the conltitutions of Clarendon", which declared that
" plac'ita de debitis, quae Jide interpofita debenture vel abfqiie inter-
" pofitionejidei, ftnt injuflicia regis ;" therefore probably theec-
clefiaftical chancellors, who then held the fcal, were remifs in
abridging their own new-acquired jurifdiction ; efpeciaily as the
fpiritual courts continued^ to grafp at the fame authority as before,
in fuits /n laeftone Jidei, fo late as the fifteenth century '', till fi-
nally prohibited by the unanimous concurrence of all the judges.
However it appears from the parliament rolls'", that in the
reigns of Henry IV and V the commons were repeatedly urgent
to have the writ oifubpoena intirely fuppreifed, as being a novelty
devifed by the fubtilty of chancellor Waltham, againfl the form
of the common law; whereby no plea could be determined, un-
lefs by examination and oath of the parties according to the
form of the law civil, and the law of holy church, in fubverfion
of the common law. But though H^enry IV, being then hardly
warm in his throne, gave a palliating anfwer to their petitions,
and adually pafTed the Itatute 4 Hen. IV. c. 23. whereby judg-
ments at law are declared irrevocable unlefs by attaint or writ of
error, yet his fon put a negative at once upon their whole ap-
plication : and in Edward IV's time, the procefs by bill and
Jubpoena was become the daily practice of the court'".

But

n Lord Lyttelt. Hen. 11. b. 3. p. jSi. not,
o 10 Hen. 11. c. ij. Speed. 458.
p In 4 Hen. HI. fuits in court chriftian
fro laeftOHi: fidei upon temporal contracts were
adjudged to be contrary to law. (Fitzh. Abr.
t. Prohibition, is.) But in the ftatute or writ
Q? circumjpecle agath, lappofcd by Ibme to
havs ifTucd 13 Edw. i. but mfire probably
(3 Pryn. Rec. 336.) 9 Edw. II, Mtz pro Lic-
fmie fnhi were allowed to the ecclebaftical
courts ; according to fome anticnt copies,
(Berthclet. Jlaf. antiij. Lond. 1531. yn b.
3 Pryn. Rcc. 33(5,) and the common Eng-

lifh translation, of that ftatute : though in
Lyndcwodc's copy {Prov, I. 2. t. z.J and ia
the Cotton MS {CLiiiJ. D. zj that claufe is
omitted.

q Yearb, z Hen. iV. lo. 11 Hen. IV. gs.
38 Hen, VI. zp. jo Edw. W. 10.

r Rot. Pari. 4 Hen. IV. n". 78 & 110.
3 Hen. V. «". 4(J. cited in Prynne's abr. of
Cotto.i's records. 410. 42a. 424. 548. 4 lal\.
83. I Roll. A!«r. 370, 371, 37i.

f Kot. PjiI. 14 Edw. IV. 11°. 33. (not
14 £Jw. III. as cited i Roll. Abr. 370, &c )

Ch. 4.

Wrong s.

53

B u T tfiis did not extend very far : for in the antient trcatife,
intitled diverfite des courtes\ fuppofed to be written very early in
the fixtecath century, we have a catalogue ot the matters of
confcience then cognizable by fub poena in chancery, which fall
within a very narrow compafs. Mo regular judicial fyilem at that
time prevailed in the court j but the fuitor, when he thought
himfelf aggrieved, found a defultory and uncertain remedy, ac-
cording to the private opinion of the chancellor, who was ge-
nerally an ecclefiaftic, or fometimes (though rarely) a llatefman :
no lawyer having fate in the court of chancery from the times
of the chitf juilices Thorpe and Knyvet, fucceilively chanceI-5Xinr>*'^*J'
lors to king Edward III in 1372 and 1373^ to the promotion of^"^*^
fu' Thomas More by King Henry VIII in 1530. After which J^t^.
the great feal was indifcriminately committed to the cuflody of
lawyers or courtiers", or churchmen", according as the conve-
nience of the times and the difpolition of the prince required,
till ferjeant Puckering was made lord keeper in 1592: from A^yun^'i-uy
which time to the prefent the court of chancery has always been ^'

filled by a lawyer, excepting the interval from 162 1 to 1625,
when the feal was intruded toDr Williams, then dean of Weft-^t^*^^'-*

minfter, but afterwards bilhop of Lincoln ; who had been chap- ,//
lain to lord Ellefmere, when chancellor'". tUMf

y^yjM/

In the time of lord Ellefmere (J. D, i6i5.) arofe that no- ^^^^
table difpute between the courts of law and equity, fet on foot
by fir Edward Coke, then chief jufiice of the court of king's ^^^.
bench ; whether a court of equity could give relief after or
againft ajudgment at the common law. This conteft was fo
warmly carried on, that indictments were preferred againfl the
fuitors, the folicitors, the council, and even a mailer in chancery,
for having incurred a praemunire^ by queflioning in a court of
equity a judgment in the court of king's bench, obtained by

grofs

s tit. clanccry. fol. 156. Raftell's edit. v Wriothefly, St John, and Hatton.

A- D. isih u Goodrick, Gardiner, and Heith.

t Spelm. Glofs. m. Dugd. chron, Scr. 50. v Shp\ Brit, 4*78.

r*t*-uC

is

r (^^.

ill

cum.

54

Private

Book IIL

grofs fraud and impofition''. This matter being brought be-
fore the king, was by him referred to his learned counfel for
their advice and opinion ; who reported fo ftrongly in favour of
the courts of equity^, that his majefty gave judgment on their
behalf: but not contented with the irrefragable reafons and
precedents produced by his counfel, (for the chief juflice was
dearly in the v/rong) he chofe rather to decide the queftion by
referring it to the plenitude of his royal prerogative*. Sir Ed-
ward Coke fubmitted to the deciiion% and thereby made atone-
ment for his error : but this ftruggle, together with the bu(i-
nefs of commendams (in which he acled a very noble part**) and
his controlling the commiffioners of fewers% were the open and
avowed caufes*^, firfl of his fufpenfion, and foon after of his re-
moval from his office.

Lord Bacon, who fucceeded lord Ellefmere, reduced the
pradtice of the court into a more regular fyftem ; but did not fit
long enough to efTecl any confiderable revolution in the fcience
itleif : and few of his decrees which have reached us are of any
great confequence to pofterity. His fuccelTors in the reign of

Charles I,

X Bacon's vsiorks. IV. 6ii, 6iz. 631.

y WhiLclocke of pail. ii. 3yo. i Chan.
Rep. append, ii-

z " For that it appertaineth to our priiice-
•• ly office only to judge over all judges, and
*• to difcern and determine fucii ditferences,
*' as at any time may and iliall aiife between
•' our feveral courts touching their jurifdic-
*' tions, and the fame to fettle and deter-
" mine, as we in our princely wifdom fliall
•' find to (land moll: with our honour, •ire."
(i Chan. Rep. append. x6.)

a See the entry in the council book,
a6 July, 1C116. {Biogr. Brit. 1390.)

b In a caufe of the biihop of Winchsfter,
touching a commendam, king James, con-
ceiving that the matter affected his prero-
gative, lent letters to the judges not to pro-
ceed in it, till himfclf had been firft con-

fuIteJ. The twelve judges joined :n a mc-
m(jrial to his majefly, declaring that their
compliance would be contrary to their oaths
and the law : but upon being brought be-
fore tlie king in council, they all rctrafteel
and promifed ol)ediencs in every fuch cafe
for the future, except fir Edwar,»l Coke, who
faid, " that v.'hen the cafe happened, he.
" would do his duty." {Biogr. Brit. 1388.)

c See that article in chap. 6.

d See lord Ellefmere'sfpeech to fir Henry
Montague, the new chief juftice, 15 Nov.
1616. (Moor's reports. 8x8.) Though fir
Edward might probably have ret;:ined his
feat, if during his fiifpenhon he would have
complimented lord Vllliers (the new favo-
rite) with the dilpofal of tlie mofl lucrative
office in his court. {Biogr. Brit. 1391.)

Ch. 4.

Wrongs. 55

Charles I, did little to improve upon his plan : and even after
the reiloration the fcal was committed to the earl of Clarendon, C?^'^'*^'^'^^'*
u'ho had withdrawn from pra<5lice as a lawyer near twenty years ; .

i afterwards to the earl of Shaftefbury, who (though a law"/^'/^*^''''^)?'

anci

yer by education) had never practifed at all. Sir Heneage <^ * /
Finch, who fiicceeded in 1673 and became afterwards earl of *^'^'**'^'
Nottingham, was a perion of the greateft abilities and mofl un-
corrupted integrity ; a thorough mafter and zealous defender of
the laws and" conftitution of his country; and endued with a
pervading genius, that enabled him to difcover and to purfue the
true fpirit of juftice, notwithflanding the erabarraffments raifcd
by the narrow and technical notions which then prevailed in the
courts of law, and the imperfect ideas of redrefs which had poi- '

felled the courts of equity. The reafon and neceffities of man-
kind, arifmg from the great change in property by the extenfioa
of trade and the abolition of military tenures, co-operated in
' eftabliihing his plan, and enabled him in the courfe of nine
yearsto builda fyftem of jurifprudenceand jurifdiclion upon wide
and rational foundations ; which have alfo been extended and
improved by many great men, who have lince prefided in chan-
cery. And from that time to this, the power and buiinefs of
the court have increafed to an amazing degree.

From this court of equity in chancery, as from the other
fuperior courts, an appeal lies to the houfe of peers. But there
are thefe differences between appeals from a court of equity, and
writs of error from a court of law : i. That the former may be
brought upon any interlocutory matter, the latter upon nothing
but only a definitive judgment. 2. That on writs of error the
houfe of lords pronounces the judgment, on appeals it gives di-
rection to the court below to rectify it's own decree. '

IX. The next court that I fhall mention is one that hath no/^^^/''^*
original jurifdidion, but is only a court of appeal, to correct the
errors of other jurifdictions. This is the court of exchequer
chamber J which was firft erected by ftatute 31 Edw. III. c. 12.

to

$6

R I V A T E Book III.

to determine caufes upon writs of error from the common law
fide of the court of exchequer. And to that end it conlifts of the
lord treafurer, the lord chancellor, and the juftices of the king's
bench and common pleas. In imitation of which, a fecond court
of exchequer chamber was erected by ftatute 27 Eliz. c. 8. con-
fifling of the juftices of the common pleas, and the barons of
the exchequer ; before whom writs of error may be brought to
reverfe judgments in certain fuits originally begun in the court
of king's bench. Into the court alfo of exchequer chamber,
(which then conlifts of all the judges of the three fuperior
courts, and now and then the lord chancellor alfo) are fome-
times adjourned from the other courts fuch caufes, as the judges
upon argument find to be of great weight and diiEculty, before
any judgment is given upon them in the court below ^.

From all the branches of this court of exchequer chamber.
a writ of error lies to

%iL/eJujrD. X. Th E houfe of peers, which is the fupreme court of ju-
'^^ * dicature in the kingdom, having at prefent no original jurifdic-

tion over caufes, but only upon appeals and writs of error; to
rectify any injultice or miftake of the law, committed by the
courts below. To this authority they fucceeded of courfe, upon
the diffolution of the aula regia. For, as the barons of parliament
were conftituent members of that couft, and the reft of it's ju-
rifdiction was dealt out to other tribunals, over which the great
officers who accompanied thofe barons were refpeclively delega-
ted to prefide; it followed, that the right of receiving appeals,
and fuperintending all other jurifdiflions, ftill remained in that

\ noble alfembly, from which every other great court was derived.

They are therefore in all caufes the laft refort, from whofe

I judgment no farther appeal is permitted ; but every fubordinate

tribunal muft conform to their determinations. The law repo-

\ ling an entire confidence in the honour and confcience of the

noble perfons who compofe this important afiembly, that they

will

e 4 Inft. up, 4 Bulftr. li^C.

Ch. 4.* ■ Wrong s. 57

will make themfelves mafters of tliofe qucftions upon which they
undertake to decide , fince upon their decifion all property muil
finally depend.

Hitherto may alfo be referred the tribunal eftabliflied by
ftatute 14 Edw. Ill, c. 5. confifling (though now out of ui'e) of
one prelate, two earls, and two barons, who arc to be chofen at
every new parliament, to hear complaints of grievances and de-
lays of juftice in the king's courts, and to give directions for re-
medying thefe inconveniences in the courts below. This com-
mittee feems to have been eftabliHied, left there ihould be a de-
fect of juftice for want of a fupreme court of appeal, during the
intermiflion or recefs of parhament ; for the ftatute farther di-
rects, that if the difficulty be fo great, that it may not well be
determined without aflent of parliament, it Ihall be brought by
the faid prelate, earls, and barons unto the ?2ext parliament, who
lliall finally determine the fame.

XI. Before I conclude this chapter, I muft alfo mention ^ .

an eleventh fpecies of courts, of general jurifdiclion and ufe, .y^'<^^^^^-'
which are derived out of, and act as collateral avixiliaries to, the "
foregoing j 1 mean the courts of aflife and ni/iprius.

These are compofed of two or more commifiloners, who
are twice in every year fent by the king's fpeciai ccmmifiion all
round the kingdom, (except only London and Middlefex, v/here
courts of niji prius areholden in and after every term, before the
chief or other judge of the feveral fuperior courts) to try by a
jury of the refpective counties the truth of fuch matters of fad
as are then under difpute in the courts of Weftminfter-hall.
Thefe judges of aflife came into ufe in the room of the antient
juftices in qjvq, jujlitiarli initinere; who were appointed by the
great council of the realm, A. D. 1176, 22 Hen. IF, with a
delegated power from the king's great court or aula regia, being
looked upon as members thereof : and they made their circuit
Vol. III. H , round

f Seld. Jan. /. s, §. $• Sjelm. Cod. 319.^
I

S8

Private Book III.

round the kingdom once in feven years for the purpofe of trying
caufes^. They were afterwards directed by ?nagna carta, c. 12,
to be fent into every county once a year to take or try certain ac-
tions then called recognitions or aflifes; the moil difficult of which
they are directed to adjourn into the court of common pleas to
be there determined. The prefent juflices of affife and niji pr'tus
are derived from the flatute Weilm. 2. 1 3 Edw. I. c. 30. explained
by leverai other acts, particularly the ftatute 14 Edw. III. c. id.
and mull be two of the king's juflices of the one bench or the
other, or the chief baron of the exchequer, or the king's ferjeants
fworn. They ufually make their circuits in the refpective vaca-
tions after Hilary and Trinity terms; afllfes being allowed to be
taken in the holy time of lent by confent'' of the biihops at the
king's requeil, as exprefled in flatute Weftm. i. 3 Edw. I.e. 51.
And it was alfo ufual, during the times of popery, for the pre-
lates to g'ant annual licences to the juflices of aiTife to admini-
ller oaths in holy times: for oaths being of a facred nature, the
logic of thofe deluded ages concluded that they muft be of eccle-
fiaitical cognizance '. The prudent jealoufy of our anceflors or-
dained " that no man of law fhould be judge of afhfe in his own
country: and a fimiLir prohibition is found in the civil law'j
which has carried this principle fo frr, that it is equivalent to
the crime of facrilege, for a man to be governor of the province
in which he was born, or has any civil connexion™.

The judges upon their circuits fit by virtue of five feveral
authorities, i. The commifTion of the peace. 2. A commiflion

of

g Co. Litt. i()-i. Anno \i6i ji'fticiarii iti- tices of aflife was taken from Samuel's go-

iieyantcs vcnernnt npud Wi^orniam in oRav'ts ing an annual circuit to jndTe Ifrael

S. Johnnnh bnptljiae ; — et totus coniitatus eos i Sam. vii. 16.

adrnttcre rccufavit, quod {c^iem anni notidum i Inftances hereof may be met with in

era;:t clapjt, pojiquam jufticliril ih'ulcm ultimo the appendix to Spehnaii's orininal of the

federunt. {Annnl. Eccl. Jrigornc in Whart. terms, and in M. Par.kcr's Antiquities, lop

Ar^l. facr. I. 495.; k Stat. 4 F.dw. III. c. j. 8 Ric. II, c. i.

h It would have been Orange to have de- 33 Hen. VIII. c. i4.

nied this confent, if, as V/!iitclccke ima- 1 Ff. i. 21.3.

Ijincs (on pari. ii. j5o.) the hint of our juf- m C. p. ap. 4.

Cb, 4. Wrongs. S9

oi oyer and termhier. 3. A commiffion of general rW-^^//Wrx.
The conlideration of all which belongs properly to the fubfequent
book of thefe coinmentaries. But the fourth cominiilion is,
4. A commiliion oi ajpfe^ direcl:ed to the judges and clerk of afiife,
to take aJhfes ; that is, to take the verdict of a peculiar Ipecies
of jury called an ailife and fummoncd for the trial oi landed dif-
putes, of which hereafter. The other authority is, 5. That of
72ift prius, which is a confecjuence of the commiffion of ajjijt^,
being annexed to the office of thofe juftices by the ftatute of
Weilm. 2.13 Edw. I. c. 30. And it empowers them to try all quef-
tions of fact iffuing out of the courts at Wellminfler, that are
then ripe for trial by jury. The original of the name is this:
allcaufes commenced in the courts of Weftminlier-hall are by
the courfe of the courts appointed to be there tried, on a day
fixed in fome Eailer or Michaelmas term, by a jury returned
from the county, wherein the caufe of adlion arifes ; but with
this privifo, nifi prius jujlitiar'ii ad ojjifas capiendas venerint ; iiri'
lefs before the day prefixed the judges of affife come into the
county in quellion. This they are fure to do in the vacations
preceding eacn E^fter and Michaelmas terms,. and there difpofe
of the caufe; which fives much expenfe and trouble, both to
the parties, the jury, and the witneiTes.

Th E s E are the feveral courts of common law and equity,
which are of public ami general jurifdicUon throughout the king-
dom. And, upon the whole, w^e cannot but admire the wife
oeconomy and admirable provifionof our anceftors, in fettling the
diftribution of juftice in a method fo w^ell calculated for cheap-
nefs, expedition and eafe. By theconftitution which they efta-
blifhed, all trivial debts, and injuries of fmall confequence, were
to be recovered or redreffed in every man's own county, hundred,
or perhaps parifh. Pleas of freehold, and n:iore important dif-
putes of property, were adjourned to the king's court of common
pleas, which was fixed in one place for the benefit of the whole
kingdom. Crimes and mifdemefnors were to be examined in a

H 2 couix

n Salk. 4;^.

6o Private Book III.

court by themfelves ; and matters of the revenue in another dif-
tinct jurifdiftion. Now indeed, for the eafe of the fa bj eel and
greater difpatch of caufes, methods have been found to open all
the three fuperior courts for the redrefs of private v*^rongs ; which
have remedied manyinconveniences, and yet preferved the forms
and boundaries handed down to us from high antiquity. If facls
are difputed, they are fent down to be tried in the country by
the neighbours ; but the law, arifing upon thofe facts, is deter-
mined by the judges above : and, if they are miftaken in point
of law, there remain in both cafes two fucceffive courts of ap-
peal, to rectify fuch their miftakes. If the rigour of general rules
does in any cafe bear hard upon individuals, courts of equity
are open to fupply the defects, but not fap the fundamentals, of
the law. Laftly, there preiides over all one great court of ap-
peal, which is the laft refort in matters both of law and equity ;
and which will therefore take care to prefervc an uniformity and
eqinlibr'mm among all the inferior jurifdiclions : a court compofed
of prelates felected for their piety, and of nobles advanced to
that honour for their perfonal merit, or deriving both honour
and merit from an illuiirious train of anceftors ; who are formed
by their education, intereiled by their property, and bound upon
their confcience and honour, to be fkilled in the laws of their
country. This is a faithful iketch of the Engliih juridical con-
flitution, as defigned by the mauerly hands of our forefathers.
Of which the great original lines are dill ftrong and vifible ; and,
if any of it's minuter flrokes are by the length of time at all ob-
fcured or decayed, they may ftill be with eafe reftored to their
priftine vigour: and that not fo much by fanciful alterations and
^vild experiments (fo frequent in this fertile age) as by clofely
adhering to the wifdom of the antient plan, concerted by Alfred
and perfected by Edward I ; and by attending to the fpirit, with-
out neglecting the forms of their excellent and venerable inlli-
tutions.

Ch. 5. Wrongs. 61

Chapter the fifth.

Of courts ecclesiastical, MILITARY,

AND MARITIME.

BESIDES the feveral courts, which were treated of In the
preceding chapter, and in which all injuries are redrefled,
that fall under the cognizance of the common law of England,
or that fpirit of equity which ought to belt's conRant attendant,
there ftili remain fome other courts of ajurifdiction equally pub-
lic and general : which take cognizance of other fpecics of in-
juries, of an ecclefiaftical, military, and maritime nature ; and
therefore are properly diftinguiflied by the title of ecclefiaftical
courts, courts military, and courts maritime.

I. Before I defcend to confider particular ecclefiaftical J^*^^'**^'^**^
courts, I muft firft of all in general premlfe, that in the time of
our Saxon anceftors there was no fort of diftincllon between the
lay and the ecclefiaftical jurifdiclion ; the county court was as
much a fpiritual as a temporal tribunal : the rights of the church
were afcertained andafTerted at the fame time and by the fame
judges as the rights of the laity. For this purpofe the bifhop of
the diocefe, and the alderman, or In his abfence the fherifF of the
county, ufed to fit together in the county court, and had there
the cognizance of all caufes as well ecclefiaftical as civil : a fu-
perior deference being paid to the bifliop*s opinion in fpiritual
matters, and to that of the lay judges in temporal. This
union of power was very advantageous to them both: the pre-

fence

« CeMcrrimo hu'tc conventut epifcopus et aU vina, alter human* po^ulum edcceto. LL,
itrmannus interjunto ; quorum alter jura d'f Kad^ar. f. j.

62 Private Book III.

fenfe of the blfliop added weight and reverence to the IherifF's
proceedings ; and the authority of the flierifF was equally ufeful
to the biihop, by enforcing obedience to his decrees in fuch re-
fractory offenders, as would otherwife have defpifed the thun-
der of mere ecclefiaftical cenfures.

L/rtitdLi ^i^u^^BuT fo moderate and rational a plan was wholly inconfiflent
with thofe views of ambition, that were then forming by the
' court of Rome. It foon became an eftablilhed maxim in the pa-
pal fyftem of policy, that all ecclefiaftical perfons and all eccle-
fiaftical caufes fhould be folely and entirely fubject to ecclefiafti-
cal jarifdicilon only : which jurifdidion was fuppofed to be
lodged in the firft place and immediately in the pope, by divine
indefeafible right and inveftiture from Chrift himfelf; and de-
rived from the pope to all inferior tribunals. Hence the canon
law lays it down as a rule, that '-^ facer dotes a regibus homrandi
" f'lnt^ j2on judicandi^ -y* and places an emphatical reliance on a
fabulous tale which it tells of the emperor Conftantine: that
when fome petitions were brought to him, imploring the aid of
his authority againft certain of his bifhops, accufed of oppref-
fion and injuftice, he caufed (fays the holy canon) the petitions
to be burnt in their prelence, difmiffing them with his valedic- i
tion ; " ife^ et inter vos caufas veJJras difcutite, quia dignum non eft
" ut nos judicemus Deos'^,

It was not however till after the Norman conquefl:, that this
doctrine was received in England : when William I, (whofe title
was warmly efpoufcd by the monafteries which he liberally en-
dowed, and by the foreign clergy, whom he brought over in
Ihoals from France and Italy and planted in the befl preferments
of the Englifh church,) was at length prevailed upon to eftablifh
this fatal encroachment, and feparate the ecclefiaftical court from
the civil : whether actuated by principles of bigotry, or by thofe
of a more refined policy, in order to difcountenance the laws of
Jiing Edward abounding with the fpirit of Saxon liberty, is not

altogether

h Ditrtf, fart. z. catij, ii. jk. i. e, 41, c Ibid.

Ch. 5.

Wrongs.

63

altogether certain. But the latter, if not the caufc, was un-
doubtedly the confequence, of this feparation : for the Saxon laws
were foon overborne by the Norman jufticiaries, when the county
court fell into difrcgard by the bifhop's withdrawing his prefence
in obedience to the charter of the conqueror '^ ; which prohibited
any fpiritual caufe from being tried in the fecular courts, and
commanded the fuitors to appear before the bifliop only, whofe
decilions were directed to conform to the canon law ^.

King Henry the firft, at his accefiion, among other refto-
rations of the laws of king Edward the confefTor, revived this
of the union of the civil and ecclefiaftical courts ^ Which was,
according to fir Edward Coke% after the great heat of the con-
queft was paft, only a reftitution of the antient law of England.
This however was ill reliflied by the popifli clergy, who, under
the guidance of that arrogant prelate archbifhop Anfelm, very
early difapproved of ameafure that put them on a level with the
profane laity, and fubjedled fpiritual men and caufes to the in-
fpe<5lion of the fecular magiftrates: and therefore in their fynod at
Weftminfter, 3 Hen. I. they ordained that no bifhop fhould attend
thedifcuilion of temporal caufes^ ; which foon diflblved this newly
effected union. And when, upon the death of king Henry the

firft.

d Hale= Hift. C. L. roj. Selden. in Eadm.
f. 6. 1. 24. 4 Inft. 159, V/ilk. LL. Angl.
Sax. i<?i.

e NuHus epifcopus vel archidiacomis de legi-
lus cpifcopalibus aniplhis in hiindrei placita te-
neaiit, nee caujam quae ad regimen anim:iru>n
fertinct ad judicium fecuJarium hominum ad-
ditcant : fed quicunque fecundum epifcopalcs
leges, de quacunque caufa vel culpa inter pellatui
fueri/, ad locum, quern ad hoc epifcopus elege-
rit et nominaverit, veniat ; ibique de caufa fua
refpondeat ; et non fecundum hundret, fed fe-
eundum canones et epfcopales leges, reBum Deo
et epifcop ofuo faciat.

£ Void ct praecipio, t«t omnes de cemitatu eant

ad comhatus et hundreda, ficut fccerint tempore
regis Edward:. {Cart. Hcii. J. in Spehn, cod,
vet. legum. 305.^ And uhat is here obfcurely
hinted at, is fully explained by his code' of
laws extant in the red book of the exchc-
4ucr, though in general but of doubtful
authority, cap. Q. Generalia comitatuum pla-
cita certis locis et vicibus teneantur. Interftnt
autem epifcopi, comites. &c ; et agantur prima
debita verae chrijlianitatis jura, fecundo regis
placita, pofiremo caufae fingulorum dignis fn-
tisfaBionibiiS expleantur,

g a Inft. 70.

h Ne epifcopi faecularium placilorum officium
fufcipiant," Spclm. Cod, j?i.

e^fXM

1^^*^

64 Private Book IIL

firft, the ufurper Stephen was brought in and fupported by the
clero-y, we find one article of the oath which they impofed upon
him was, that ecclefiaftical perfons and ecclefiaftical caufes fhould
be fubjcct only to the bifliop's jurifdiclion '. And as it was about
this time that the conteft and emulation began between the laws
of England and thofe of Rome", the temporal courts adhering
to the former, and the fpiritual adopting the latter as their rule
of proceeding, this widened the breach between them, and
made a coalition afterwards impracticable; which probably would
elfehave been effected at the general reformation of the church.

In briefly recounting the various fpecies of ecclefiaftical courts,
or, as they are often iHled, courts chriflian, (curiae chr'iftianita-
t'ls) 1 fhali begin with the loweft, and fo afcend gradually to the
fupreme court of appeal'.

tV'^X I. T H E archdeacon^% court is the mofl inferior court in the

whole ecclefiaftical polity. It is held in the archdeacon's abfence
before a judge appointed by himfelf, and called his official ; ^and
it's jurifdiclion is fometimes in concurrence with, fometimes in
exclufion of, the bifliop's court of the diocefe. From hence
however by flatute 24 Hen. VIII. c. 12. there lies an appeal to
that of the bifhop.

/'^vt^>^<rrM, 2. Th E confiflery court of every diocefan bifhop is held in
their feveral cathedrals, for the trial of all ecclefiaftical caufes ari-
fing within their refpeclive diocefes. The bifhop's chancellor, or
his commifTary, is the judge; and from his fentence there Hes
an appeal, by virtue of the fame ftatute, to the archbifhop of
each province refpeftively.

4y<ylt*J 3* The court of ^ar^'Z'^j' is a court of appeal, belonging to

the archbifhop of each province ; whereof the judge is called

the

i Ibid. 310. 1 For farther particulars fee Bum's eccle-

k See vol, I. introLl. §, i, fiaftkal law. Wood's hiflitute of the commo»

/«w, and Oughton's ordo judiciorum.

f

Ch. s* Wrongs. 6^

the dean of the arches; becaufe he antiently held his court in the
church of St Mary /e bozv (^fanda Miina de arcuhus) though all
the principal fpiritual courts are now holden at docior's commons.
His proper jurifdiiflion is only over the thirteen peculiar pariflies
belonging to the archbifliop in London; but the oiiice of dean
of the arches hiving been f^or a long time united \vith that ot
the archbifhop's principal official, he now, in right of the laft
mentioned office, receives and determines appeals from the fen-
tences of all inferior eccleliaftical courts within the province.
And from him there lies an appeal to the king in chancery (that
is, to a court of delegates appointed under the king's grer^t
feal) by ftature 25 Hen. VIII. c. 19. as fuprerae head of the Eng-
lilli church, in the place of the bifhop of Rome, who formerly
exercifed this jurifdiction ; which circumflance alone will fur-
nilh the reafon why the popiffi clergy were fo anxious to feparate
the fpiritual court from the temporal.

4. T H E court G^ peculiars is a branch of and annexed to the /ctAJ^-^-y^.
court of arches. It has a jurifdiclion over all thofe parifhes
difperfed through the province of Canterbury in the midfl of

other dioceles, which are exempt from the ordinary's jurifdiclion,
and fubjecb to the metropolitan only. All eccleliailical caufes,
arifing within thefe peculiar or exempt jurifdiclicns, are, origi-
nally, cognizable by this court ; from which an appeal lay for-
merly to th« pope, but now by the ilatute 25 Hen. VIIL c. 19,
to the king in chancery.

5. T H E prerogative court is eftablifhed for the trial o^ ?X\jycyvc^J^.
teftamentary caufes, where the deccafed hath left bona notab/h'a ^
within two different diocefes. In which cafe the probate of wills
belongs, as yvc have formerly fcen ", to the archbifliop of the
province, by way offpecial prerogative. And all caufes relating

to the wills, adminiftrations, or legacies of fuch perfons are, ori-
ginally, cognizable herein, before a judge appointed by the
arch-bifhop, called the judge of the prerogative court .; from
Vol, III, I whom

m Eook II. ch. 33,

i

66 Private Book III.

■whom an appeal lies by ftatute 25 Hen. VIII. c. 19. to the king
in chancery, inftead of the pope as formerly.

I PASS by fuch ecclefiaftical courts, as have only what is call-
ed a W?/;^/^r)' and not af(?«/^«//Wj- jurifdiction; which are merely
concerned in doing or felling what no one oppofes, and which
keep an open office for that pnrpofe, (as granting difpenfations,
licences, faculties, and other remnants of the papal extortions)
but do not concern themfelves with adminiftring redrefs to any
injury : and fhall proceed to

..ix^<^t^. ^' T II E great court of appeal in all ecclefiaftical caufes, viz,
} the court of: delegates, jud'ices delegati, appointed by the king's

commifiion under his great feal, and iffulng out of chancery, to
reprefent his royal perfon, and hear all appeals to him made by
virtue of the before-mentioned ftatute of Henry VIII. This
commiillon is ufually filled with lords fpiritual and temporal,
judges of the courts at Weftminfter, and doctors of the civil law.
Appeals to Rome were always looked upon by the Englifh na-
tion, even in the times of popery, with an evil eye; as being
contrary to the liberty of the fubjecl, the honour of the crown,
and the independence of the whole realm : and were firft in-
troduced in very turbulent times in the fixteenth year of king
Stephen {A. D. 1151.) ^t the fame period (fir Henry Spelman
obferves) that the civil and canon laws were firft imported into
England". But, in z few years after, to obviate this growing
practice, the conftitutlons made at Clarendon, 1 1 Hen. II. on ac-
count of the difturbances raifed by arch-biiliop Becket and other
zealots of the holy fee, exprefsly declare °, that appeals in caufes
ecclefiaftical ought to lie, from the arch-deacon to the diocefan ;
from the dioceian to the arch-biftiop of the province ; and from
the arch-biihop to the king ; and are not to proceed any farther
without fpecial licence from the crown. But the unhappy ad-
vantage that was given in the reigns of king John, and his fon
Henry the third, to the encroaching power of the pope, who

was

II Cod. vct.Jc^. 31 J, o chap. S.

Ch. 5. Wrongs. 67

was ever vigilant to improve all opportunities of extending his
jiirifdiclion hither, at length rivetted the cullcm of appealing to
Rome in caufes eccleiiaihcal fo ftrongly, that it never could be
thoroughly broken off, till the grand rupture happened in the
re'ign of Henry the eighth; when all the jurifdiclion ufurped by
the pope in matters eccieliaftical was reftored to the crown^ to
which it originally belonged : fo that the ftatute 25 Hen. Vlil.
was but declaratory of the antient law of the realm''. But in
• cafe the king himfelf be party in any of thefe fuits, the ajpcal
does not then lie to him in chancery, which would be abfurd ;
but, by the Itatute 24 Hen. VIII. c. 12. to all the biihops of the
realm, aflembled in the upper houfe of convocation.

7. A COMMISSION of revieiv is a commiilion fometimes A<-t^n7,
granted, in extraordinary cafes, to revife the fentenceof the court
of delegates ; when it is apprehended they have been led into a
material error. This commiffion the king may grant, although
the ftatutes 24 & 25 Hen. VIII. before cited declare the fentence
of the delegates definitive : becaufe the pope as fupreme head by
the canon law ufed to grant fuch commiilion of review ; and
fuch authority, as the pope heretofore exerted;,is now annexed to
the crown '^ by ftatutes 26 Hen. VIII. c. i. and i Eliz. c. i. But
it is not matter of right, which the fubjecl may ciemand ex de-
hito juft'itiae ; but merely a matter of favour, and which therefore
is often denied.

These are now the principal courts of ecclefiaflical jurif-
diclion ; none of which are allowed to be courts of record : no
more than was another much more formidable jurifdiclion, but
now defervedly annihilated, wz. the court of the king's Z'/g/7^'V'£6<^'
commiffion in caufes eccieliaftical. This court was erecled and "V^****
united to the regal power' by virtue of the ftatute i Eliz. c. i.
inftead of a larger jurifdiclion which had before been exercifcd
under the pope's authority. It was intended to vindicate the

1 2 dignity

p 4 Tnft. 341. r 4 Infl. 324.

4 md.

68 Private Book IIL

dignity and peace of the church, by reforming, ordering, and
correcting the ecclefiaftical Hate and perfons, and all manner of
errors, hei cfies, fchifms, abufes, offences, contempts, and enor-
mities. Under the Clcltcr of which very general words, means
were found in that and the two fucceeding reigns, to veil in the
high commiilioners extraordinary and almoft defpotic powers, of
fining and imprifoning ; which they exerted much beyond the
degree of the offence itfeif, and frequently over offences by no
means of fpiritual cognizance. For thefe reafons this court was
juftly aboiiihed by iiatute i6 Car. I. c. i i. And the weak and
illegal attempt that was m:ide to revive it, during the reign of
king James the fecond, ferved only to haften that infatuated
prince's ruin.

C^(ito»^"fM. n. Next, as to the courts military. The only court of this
kind known to, and eflablilhed by, the permanent laws of the
land, is the court of chivalry, formerly held before the lord high
condable and earl marfhal of England jointly ; but lince the at-
tainder of Stafford duke of Buckingham under Henry VIII, and
the confequent extinguifliment of the office of lord high con-
ftablc, it hath ufually with refpecb to civil matters been held be-
fore the earl marflial only*. This court by ftatute 1 3 Hie. II. c. 2.
hath cognizance of contracts and other matters touching deeds
of arms and war, as well out of the realm as within it. And from
it's fentcnces an appeal lies immediately to the king in perfon^
This court was in great reputation in the times ot pure chivalry,
and afterwards during our connexions with the continent, by the
territories which our princes held in France ; but is now grown
almoft entirely out of ufe, on account of the feeblenefs of it's
jurifdiclion, and want of power to enforce it's judgments j as
it can neither fine nor imprifon, not being a court of record".

44^y^t^^ IIT. The maritime courts, or fuch as have power and jurif-
diction to determine all maritime injuries, arifing upon the feas,

or

s I Lev. 130. Show. Pari, Caf. 6a, U 7 Mod. ray.

t 4 InlL iij.

Ch. 5. Wrongs, ^5

or in parts out of the reach of the common law, are only tlie
court of admiralty, and it's courts of appeal. The court of ad*
miralty is held before the lord high admiral of England, or his
deputy, who is called the judge of the court. According to fir
Henry Spclman"', and Lambard", it was firfl of all erecled by king .
Edward the thirds It's proceedings are according to the method
of the civil law, like thofe of the ecclehaftical courts ; upon
which account it is ufually held at the fame place with the fu-
perior ecclefiaftical courts, at dodors* commons in London. It
is no court of record, any more than the fpritual courts. From
the fentences of the admiralty judge an appeal always lay, in or-
dinary courfe, to the king in chancery, as may be collected from
ftatute 25 Hen. VIII. c. 19. which directs the appeal from the
arch-biliiop's courts to be determined by perfons named in the ,

king's commilHon, " like as in cafe of appeal from the admiral'
" court." But this is alfo exprefsly declared by ftatute 8 Eliz.
c. 5. which enacls, that upon appeal made to the chancery, the
fentence definitive of the delegates appointed by commiilion fhall
be final.

App EA L s from the vice-admiralty courts in America, and our Jlnuyicci^^
other plantations and fettlements, may be brought before the
courts of admiralty in England, as being a branch of the admi-
ral's jurifdiclion, though they may alfo be brought before the
king in council. But in cafe of prize veflels, taken in time of
war, in any part of the world, and condemned in any courts of
admiralty or vice-admiralty as lawful prize, the appeal lies to cer-
tain commiflioners of appeals confiftingchiefly of theprivy-council,
and not to judges delegates. And this by virtue of divers treaties
with foreign nations; by which particular courts are eflablifhed
in all the maritime countries of Europe for the decifion of this
queftion, whether lawful prize or not : for this being a quef-
tion between fubjeclsof different ffates, it belongs entirely to the
law of nations, and not to the municipal laws of either country,
to determine it. The original court, to which this queftion is

permitted

w GIoJ. 13. X Arehe'ton. 41.

70 Private ' Book III.

permitted in England, is the court of admiralty ; and the court of
appeal is in efFett the king's privy council, the members of which
are, in confequencc of treaties, commiflioned under the great
feal for this purpofe. In 1748, for the more fpeedy determina-
tion of appeals, the judges of the courts of Weftminilerhall,
though not privy counfellors, were added to the commiffion then
in being. But doubts being conceived concerning the vaUdity of
that commiffion, on account offuch addition, the fame was con-
firmed by ftatute 22 Geo. II. c. 3. with a provifo, that no fen-
tence given under it fhould be vaUd, unlefs a majority of the
commiffioners prefent were a6laully privy counfellors. But this
did not, 1 apprehend, extend to any future commiffions : and
fuch an addition became indeed wholly unnecefTary in the courfe
ol the war which commenced in 1756; fince, during the whole
of that war, the commiffion of appeals was regularly attended
and all it's decifions cundu6led by a judge, whofe mafterly ac-
quaintance with the law of nations was known and revered by
every ftate in Europe^,

y See the fentiments of the prefident m3.je!}y's Expojition des motifs, &c, yi. D. ijss-

Montcfquieu, and M. Vattel (a ful)je(!> cf (Montcfquieu's letters. 5 Mar 1753. Vat»

the king of PrufTia) on the anf.ver tranf- td's droit de £eni, I, 3, , C, J-^.U^.J
' niittcd by the Englilb court to his Pvuffiaii

Ch. 6. Wrongs. yi

Chapter the sixth.
Of COURTS OF A SPECIAL JURISDICTION.

IN the two preceding chapters we have confidered the feveral
courts, whofe jurifdiclion is public and general; and which
are ib contrived that fome or other of chem may adminifter re-
dreis to every poiTible injury that can arife in the kingdom at
large. There yet remain certain others, whofe juriidiclion is
private and fpecial, confined to particular fpots, or inflitutcd only
to redrefs particular injuries. Thefe are ^ p j

I. T H E forcft courts, inftituted for the government of the
king's forefls in dilTerent parts of the kingdom, and for the pu-
nifliment of all injuries done to the king's deer ovvenlfon, to the
vert or greenfwerd, and to the avert in which fuch deer are
lodged. Thefe are the courts of attachments^ of regard^ o^ Jweln-
mote^ and oi jiijlice-feat. The court of attachments^ wood-mote,
or forty days court, is to be held before the verderors of the fo-
red once in evei-y forty days'"; and is infiituted to enquire into
all offenders again ft vert and vcnifon'': who may be attached by
their bodies, if taken with the mainour (or ?nainceuvre^ a manu)
that is, in the very act of killing venifon or ftealing wood, or
preparing fo to do, or by frefli and immediate purfult after the
act is done*^; elfe they muft be attached by their goods. And
in this forty days court the forellers or keepers are to bring in

their

a Can. ic foreft. gHen, IIL(. 9, c Garth. 79,

h 4 Iiifl. iSp.

72 Private ^ Book III.

their attachments, or presentments de viridi et venatione ; and the
verderors are to receive the fame, and to enroll them, and to
certify them under their feals to the court of juflice-feat, or
fweinmote'^ : for this court can only enquire of, but not convict
offenders. 2. The court oi regard^ or furvey of dogs, is to be
holden every third year for thelawing orexpeditation ofmafliffs,
which is done by cutting off the claws of the forefeet, to pre-
vent them from running after deer^. No other dogs but maflifFs
are to be thus lawcd or expeditated, for none other vi^ere per-
mitted to be kept within the precincts of the foreft ; it being
fuppofed that the keeping of thefe, and thefe only, was necef-
lary for the defence of a man's houfe^ 3. The court oi fweiri'
mote is to be holden before the verderors, as judges, by the fteward
of thefweinmote thrice in every year% the fweins or freeholders
within the foreft compofing the jury. The principal jurifdi^tion
of this court is,firft, to enquire into the oppreffions and grievan-
ces committed by the officers of the foreft; " de fuper-oneratione
foreftariorum^ et aliarum minifirorum forejlae j et de eorum oppref-
Jiontbus popula regis illatis ;" and, fecondly, to receive and try
prefentments certified from the court of attachments againft offen-
ces in vert and venifon ''. And this court may not only enquire
but convicl alfo, which convi£i:ion ftiall be certified to the court
of juftice-feat under the feals of the jury ; for this court cannot
proceed to judgment'. But the principal court is, 4. The court
G^ juflice-feat, which is held before the chief juftice in eyre, or
chief itinerant judge, capltalis juflit'iarhis in itinere, or his depu-^
ty ; to hear and determine all trefpaffes within the foreft, and all
claims of franchifes, liberties, and privileges, and all pleas and
caufes whatfoever therein arifing''. It may alfo proceed to try
prefentments in the inferior courts of the forefts, and to give
judgment upon conviction of the fweinmote. And the chief
juftice may therefore after prefentmentmadeor indictment found,

but

d Carl. d( fortji. c. \6, b Stat. 34 Edw. I. C. I,

e Ihxd. c. 6. 34 In(l. 189.

f 4 Iiifl. 308. la 4 Inll, igi.
g Cart dt foreji. s. 8.

Ch. 6. Wrongs. 73

but not before', ifiue his warrant to the officers of the forcft to
apprehend the offenders. It may be held every third year ;
and forty days notice ought to be given of it's fitting. This court
may fine and imprifon for offences within the foreff "", it being
a court of record : and therefore a writ of error Hes from hence
to the court of king's bench, to redify and redrefs any mal-ad-
minillrations of jullice"; or the chief juftice in eyre may ad-
journ any matter of law into the court of king's bench °. Thefe
juiliccs in eyre were inilituted by king Henry II, A. D. 1 184'' ;
and their courts were formerly very regularly held: but the lad
court of julHce feat of any note was that holden in the reign of
Charles I, before the earl of Holland ; the rigorous proceedings
at which are reported by fir WiUiam Jones. After the reflora-
tion another was held, pro forma only, before the earl of Ox-
ford''; but fince the aera of the revolution in 1688, the forefl
laws have fallen into total difufe, to the great advantage of the

II. A SECOND fpecies of private courts, is that of commif-
{loners of /ewers. This is a temporary tribunal, erected by vir-
tue of a commiffion under the great feal ; which formerly ufed
to be granted pro re nata at the pleafure of the crown "^j but now
at the difcretion and nomination of the lord chancellor, lord
treafurer, and chief juflices, purfuant to the flatute 23 Hen. VIII.
c. 5. Their jurildiclion is to overlook the repairs of fea banks
and fea walls; and thecleanfing of rivers, public ftreams, ditches
and other conduits, whereby any waters are carried off: and is
confined to fuch county or particular diflrid; as the commiilion
fhall exprefsly name. The commifHoners are a court of record,
and may fine and imprifon for contempts*; and in the execution
of their duty may proceed by jury, or upon their own view, and
may take order for the removal of any annoyances, or the fafe-

VoL. III. K Qfuard

o

1 Stat. I Edw. III. c. 8. 7 Ric. II. c. 4. p Hovedcn.

m 4 Inlt. 313. il North's life of lord Guildford, 4J.

n IbU. 191. r F. N. R. 113.

o Ibid. ajj. SI Sid. 14 j.

74

Private Book IIL

., guard and confervation of the fewers within their commiffion,

ff either according to the laws and cuftoms of Romney-marfh', or

(y^ 7) otherwife at their own difcretion. They may alfo afTefs fuch rates,

: y^l or fcots, upon the owners of lands within their diftrict, as they

//^l€o-n4>. . \ jQi^ii judge neceflary : and, if any perfon refufes to pay them,
the commifiioners may levy the fame by diftrefs of his goods and
chattels; or they may, by ftatute 23 Hen. VIII. c. 5. fell his
freehold lands (and by the 7 Ann. c. 10. his copyhold alfo) in
order to pay fuch fcots or affeflments. But their conduct is un-
der the control of the court of king's bench, which will pre-
vent or punifli any illegal or tyrannical proceedings ". And yet
in the reign of king James I, (8 Nov. 1616.) the privy council
took upon them to order, that no action or complaint fhould be
profecuted againft the commifiioners, unlefs before that board;
and committed feveral to prifon who had brought fuch adions at
common law, till they fhould releafe the fame : and one of the
reafons for difcharging fir Edward Coke from his ofHce of lord
chief juftice was for countenancing thofe proceedings \ The pre-
tence for which arbitrary meafures was no other than the tyrant's
plea"", of the necejfity of unlimited powers in works of evident
utility to the public, " the fupreme reafon above all reafons, which
" is the falvation of the king's lands and people.*' But now it
is clearly held, that this (as well as all other inferior jurifdiclions)
is fubject to the difcretionary coercion of his majefty's court of
king's bench \

III. The court of policies of ajurance, when fubfifling, is
creeled in purfuance of the flatute 43 Eliz. c. 12. which recites
the immemorial ufage of policies of afTurance, " by means whereof
*« it cometh to pafs, upon the lofs or perifhing of any fhip, there

" followeth

t Romney-marfli in the c»unty of Kent, crs of fewers in England may receive light

atra£V containiiii^ 14000 acres, is governed and diredicn. (4 Inft. lyfJ.)
hy certain antient and equitable laws of u Cro. Jac. 531J. '

fcwcrs, compofed by Henry de Bathe, a v Moor. 81s, (>x(>. See pag. 54.

venerable judge in the reign of king Henry w Milt, parad. loft iv. 393.

t^e thiru ; from which laws all comminion* X i Ventr. 60. Salk, 14(5.

«
«

Ch. 6. Wrongs. 75

" fbllowetli not the undoing of any man, but the loCs lij^hteth
" rather eafily upon many than heavy upon few, and rather up-
" on them that adventure not, than unon thofe that do adven-
" turej whereby all merchants, ef'pecially thole of the younger
** fort, are allured to venture more willingly and more freely : and
*' that hereto lore fach alTurers had ufcd to Hand fo juftly and
precifely upon their credits, as few or no controvtilies had
arifen thereupon ; and if any had grown, the fame had from
time to time been ended and ordered by certain grave and dif-
creet merchants appointed by the lord mayor of the city of
London; as men by reafon of their experience litteft to ua-
*' deriland and fpeedily decide thofe caufes:" but that of late
years divers perfons had withdrawn themfelves from that courfe
of arbitration, and had driven the affured to bring feparate ac-
tions at law againit each aifiirer : it therefore enables the lord
chancellor yearly to grant a Handing commiffion to the judge of
the admiralty, the recorder of London, two doctors of the civiJ
law, two common lawyers, and eight merchants ; any three of
which, one being a civilian or a barrifter, are thereby and by the
ftatute 13 & 14 Car. II. c. 23. empowered to determine in afum-
mary way all caufes concerning policies of affurance in London,
with an appeal (by way of bill) to the court of chancery. But the
jurifdiction beii)g fomewhat defective, as extending only to Lon-
don, and to no other aflurances but thofe on merchandize^, and
to fuits brought by the affured only and not by the infurers'',
no fuch commiffion has of late years iffued : but infurance caufes
are now ufually determined by the verdict of a jury of merchants,
and the opinion of the judges in cafe of any legal doubts ;
whereby the decifion is more fpeedy, fatisfactory and final:
though it is to be wifhed, that fome of the parliamentary powers
invefted in thefe commiffioners, efpecialiy for the examination of
witneffes, either beyond the feas or fpeedily going out of the
kingdom*, could at prefent be adopted by the courts of Wefl*
minfter-hall, without rec^uiring the confent of parties.

^.2 IV. The

y Styl. 16(5. ' * SUt. ig 5c i4jCar. II. e. «.§. j & 4^

z I Show. isdi.

76

R I V A T E Book IIL

IV. Th E court of the marJJmJfen^ and the falace court at Wefl:-
minfler, though two diftinct courts, are frequently confounded
together. The former was originally holden before the ftewaj d
and marfhal of the -king's houfe, and was inftituted to adminif-
ter juflice between the king's domeflic fervants, that they might
not be drawn into other courts, and thereby the king iofe thtrr
fervice''. It was formerly held in, though not a part of, the aitla
regis" 'j and, when that was fubdivided, remained a diftincl JLi-
rifdiclion : holding plea of all trefpaffes committed within the
verge of the court, where only one of the parties is in the king's
domeftic fervice (in which cafe the inqueft fhall be taken by a
jury of the country) and of all debts, contracts and covenants,
wherebothof the contracting parties belong to the royal houlliold;
and then the inqueft Ihall be com.pofed of men of the houfhold
only"". By the ftatute of 1 3 R.ic.11. ft. i. c. 3. (in affirmance of the
common law*") the verge of the court in this refpect extends for
twelve miles round the king's place of rehdence*". And, as this
tribunal was never fubjecl to the jurifdiction of the chief jufti-
ciary, no writ of error lay from it (though a court of record) to
the king's bench, but only to parliament^, till the ftatutes of
5 Edw. IIL c. 2. and 10 Edw. III. ft. 2. c. 3. which allowed fuch
writ of error before the king in his place. But this court being
ambulatory, and obliged to follow the king in all his progrefles^
fo that by the removal of the houftiold, actions were frequently
difcontinued% and doubts having arifen as to the extent of it's
jurifdiction', king Charles I. in the fixth year of his reign by his
letters patent erected a new court of record, called the curia pa-
latii or falace courts to be held before the fteward of the houfhold

and

li I Bnlftr. ill. diftance of three miles, three furlongs, three

c Flet. /. i. c. a. acres, nine feet, nine pahiis, and nine har-

il Artie, flip. cart. aS Edw. I. c. 3. Stat. ley corns ; as appears from a fragment of

5 Edw. III. c. a. 10 Edw. III. rt. x. c. a. the text us Rofc):fis ciiti in Dr. Hickes's ^-ij-

e a Inft. 548. fertat. cpijlol. 114.

f By the antient Saxon conftitution, the g i BuHlr. 211. 10 Rep, 79.

fnx regia, or privilege of tiie king's pa- h F. N. 15. a4i. a Inll. 548.

lace, extended from lus palace gate to the i i Bulftr. ao8.

Ch^ 6. ' Wrongs. yj

and knight marfhal, and the fteward of the court, or his de-
puty ; with jurifdiclion to hold plea of all manner of perfonal
adions whatfoever, wliich fliall arife between any parties within
twelve miles of his majefty's palace at Whitehall''. The court
is now held once a week, together with the antient court of mar-
ilialfea, in the borough of Southwark : and a writ of error hes
from thence to the court of king's bench. But if the caufe is
of any conllderable confequence, it is ufually removed on it's iirfl
commencement, together with the cuftody of the defendant,
either into the king's bench or common pleas by a writ oi ha^
beas corpus ami caufa : and the inferior buhnefs of the court hath
of late years been much reduced, by the new courts of confcience
ereded in the environs of London ; in confideration of which
the four counfel belonging to thefe courts had falaries granted
them for their lives by the ftatute 23 Geo. II. c. 27.

V. A FIFTH fpecles of private courts of a limited, thous-h
extenfive,jurifdiclion are thofeof the principality of Wales; which
upon it's thorough reduction, and the fetthng of ir's polit,y in
the reign of Henry the eighth', were ereclcd all over the coun-
try ; principally bytheflatute 34&35 Hen. VIII. c. 26. though
much had before been done, and the way prepared by the ftatute
of Wales, 12 Edvv. I. and other flatutes. By the ftatute of Henry
the eighth before-mentioned, courts-baron, hundred, and county
courts are there eftabiilhed as in England. A fefficfn is alfo to be
held twice in every year in each county, by judges appointed by
the king, to be called the great fefiions of the feveral counties in
Wales : in which all pleas of real and perfonal actions fliall be
held, with the fame form of procefs and in as ample a manner
as in the court of common pleas at Weftminfter: and writs of
error fliall lie from judgments therein (it being a court of record)
to the court of king's bench at Weftminfter. But the ordinary
original writs or procefs of the king's courts at Weftminfter do
not run into the piincipaHty of Wales"" j though procefs of exe-
cution

k Sid. 180, 8alk. 439. m a Roll. Rep. 141, ^.

1 See Vol. I. introd. §. 4.

78 Private Book Hi.

cution does" : asdoalfo all prerogative writs, as writs of f^/-/;-
erari, quo minus ^ mandamus ^ and the like". And even in caufes be-
tween fiibject and fubject, to prevent injuftice through family-
factions and prejudices, it is held lawful (in caufes of freehold
at leaft, if not in all others) to bring an adion in the Englill^
courts, and try the fame in the next -Englifh county adjoining
to that part of Wales where the caufe arifes^

VI. The court of the duchy chamber of Lancafter is another
fpecial jurifdiction, held before the chancellor of the duchy or
his deputy, concerning all matter of equity relating to lands
holden of the king in right of the duchy of Lancafter^ : which
is a thing very diftinct from the county palatine, and comprizes
much territory which lies at a vaft diftance from it ; as particu-
larly a very large diftridlfurrounded by the city of Weftminfter. The
proceedings in this court are the fame as on the equity fide in the
courts of exchequer and chancery'^; fo that it feems not to be a
court of record : and indeed it has been holden that thofe courts
have a concurrent jurifdi6tion with the duchy court, and may-
take cognizance of the fame caufes*.

VII. Another fpecies of private courts, which are of a li-
mited local jurifdidion, and have at the fame time an exclufive
cognizance of pleas, in matters both of law and equity', are thofe
which appertain to the counties palatine of Chefter, Lancafter,
and Durham, and the royal franchife of Ely". In all thefe, as
in the principality of Wales, the king's ordinary writs, ifluing
under the great feal out of chancery, do not run ; that is, they
are of no force. For, as originally dlljura regalia were granted to
the lords of thefe counties palatine, they had of courfe the fole
adminiftration of juftice,by their own judges appointed by them-
felves and not by the crown. It would therefore be incongruous

for

m xBulrt. IS*. 2 Saund. 193. Raym. ^^f, r ^lofl:. aotf.

• Cro. Jac. 454- S » Chan. Rep. Jj. Toth. 145. Harjr. 17X0

p Vaugh. 413. Hardr. (5tf. t4lnft. aij. 218. Finch, Hf 4^«.

I Hob. 77. a Lev. S4. V Sf«Tol. I. H»tr«i. §. 4.

Ch. 6. Wrongs. 79

for the king to fend his writ to direct the judge of another's court
in what manner to adminifter juftice between the fuitors. But,
when the privileges of thefe counties palatine and franchifes were
abridged by ftatute 27 Hen- VIII. c. 24. it was alfo cnaded, that
all writs and procefs fliould be made in the king's name, but
fliould be teftedi or witnefled in the name of the owner of the
franchifc. Wherefore all writs, whereon actions are founded, and
which have current authority here, mud be under the feal of the
refpeclive franchifes ; the two former of which are now annexed
to the crown, and the two latter under the government of their
feveral biihops. And the judges of affife, who fit therein, fit
by virtue of a fpecial commiffion from the owners of the feveral
franchifes, and under the feal thereof; and not by the ufual
commiiHon under the great feal of England. Hither alfo may be ^^^^^'^^
referred the courts of the cinque ports ^ or five moft important ha- ^l^,^ ,
vens, as they formerly were efleemed, in the kingdom; viz/
Dover, Sandwich, Romney, Haflings, and Hythe ; to which
Winchelfey and Rye have been fince added : which have alfo li-
milar franchifes in many refpects"^ with the counties palatine, and
particularly an exclufive jurifditlion (before the rnayor and jurats
of the ports) in which exclulive jurifdiclion the king's ordinary-
writ does not run. A writ of error lies from the mayor and ju-
rats of each port to the lord warden of the cinque ports ^ in his
court of Shepway, and from the court of Sbepway to the king's
bench '^. And fo too a writ of error lies from all the other jurif-
dictions to the fame fupreme court of judicature^, as an enfign
of fuperiority referved to the crown at the original creation of the
franchifes. And all prerogative writs (as thofe of habeas corpus^
prohibition, certiorari^ and mandamus) may ifTue for the fame rea-
fon to all thefe exempt jurifdiclions^; becaufe the privilege,
that the king's writ runs not, muft be intended between party
and party, for there can be no fuch privilege againfi: the king*.

VIII. The

w I Sid. z66, y Bro. Ahr. t. error. 74, loi. Davis. 6t,

X Jcnk. 71. D;^vtrjpe da courts, t, lanTi le 4 Inft. 38. 114. ji8.
«y. I Sii. 3J6, z i Sid. p*.

a Cro. Jac. 543, _

8a Private Book III,

VIII. T H F ftannary courts in Devonfhire and Cornwall for
the adminiftration ofjuftice among the tinners therein, are alfo
courts of record, but of the fame private and exclufive nature.
They are held before the lord warden and his fubilitutes, in vir-
tue of a privilege granted to the workers in the tinraines there,
to fue and be fued only in their own coarts, that they may not
be di'^wn from their bufinefs which is highly profitable to the
public, by attending their lawfuits in other courts''. The privi-
leges of the tinners are confirmed by a charter, 53 Edw. I. and
fully expounded by a private ftatute, 50 Edw. III. which" has
fince been explained by a public ad, 16 Car. I. c. 15. What
relates to our prefent purpofe is only this : that all tinners and
labourers in and about the ftannaries fliall, during the time of
their working therein bonafde, be privileged from fuits of other
courts, and be only impleaded in the ftannary court in all mat-
ters, excepting pleas of land, hfe, and member. No writ of er-
ror lies from hence to any court in Weftminfter-hall ; as was
agreed by all the judges'^ in 4 Jac. I. But an appeal lies from
the heward of the court to the under-warden; and from him to
the lord-warden; and thence to the privy council of the prince
of Wales, as duke of Cornwall % when he hath had livery or
inveiliture of the fame^ And from thence the appeal lies to the
king himfclf , in the lall refort ^.

IX. The feveral courts v/ithin the city of London '', and
other cities, boroughs, and corporations throughout the kingdom,
held by prefcription, charter, or acl of parliament, are alfo of
the fame private and limited fpecies. It would exceed the dcfign

and

b 4 Infl:. 131. ju'^'ge 5 from wMch a writ of error lies to
C See this at length in 4 Inft. 5 3*. the court of bu/'bi^i, before the mayor, re-
el 4 Inft. i3i. corder, and fheriffs ; and from thence to
e Jbid. 130. juftices appointed by the iiing's commifTion,
f 3 Bulft. 183. who ufed to lit in the church of St. Martin
g Doderidge hift. of Cornw. 94. le grand. (F. N. B. 31.) And from the judg-
h The chief of thofe in London are the ment of thofe juftices a writ of error lies
per'tfi courts, holdca before their fteward or immediately to the houfe of lords.

Ch. 6. Wrongs.. 8i

and compafs of our prefent enquiries, if I were to enter into a
particular detail of thefe, and to examine the nature and extent
of their feveral jurifdictions. It may in general be fuHlcient to
fay ; that they arofe originally from the favour of the crown to
thofe particular diftricls, wherein we find them erected, upoa
the fame principle that hundred-courts, and the like, were efta-
bliflied ; for the convenience of the inhabitants, that they might
profecute their fuits, and receive juftice at home: that, for the
moft part, the courts at Weflminfter-hall have a concurrent ju-
rifdiftion \Vith thefe, or elfe a fuper-intendency over them ' : and
that the proceedings, in thefe fpecial courts ought to be accord-
ing to the courfe of the common law, unlefs otherwife ordered
by parliament ; for though the king may erefl new courts, yet
he cannot alter the eflabhlhed courfe of law. /} / J'(^ jaz.j^~'>^

/ / y

But there is one fpecies of courts, conRituted by act of par- (^o^-^^ <x
liament, in the city of London and other trading and populous Co-s^ele^ytx^
diftricls, which in it's proceedings fo varies from the courfe of the
common law, that it may deferve a more particular confideration.
I mean the courts of requefts, or courts of confcience, for the
recovery of fmall debts. The firft of thefe was eftabliihed in
London, fo early as the reign of Henry the eighth, by an act of
their common council ; which however was certainly infufficient
for that purpofe and illegal, till confirmed by ftatute 3 Jac. L
c. 15. which has fince been explained and amended by ftatute
14 Geo. IL CIO. The conftitution is this : two aldermen, and
four commoners, fit twice a week to hear all caufes of debt not
exceeding the value of forty fhillings ; which they examine in a
fummary way, by the oath of the parties or other witnefTes, and
make fuch order therein as is confonant to equity and good con-
fcience. The time and expenfe of obtaining this fummary re-
drefs are very inconfiderable, which make it a great benefit to
trade ; and thereupon divers trading tov/ns and other diftricls
have obtained acts of parliament, for eftablifliing in them courts
of confcience upon nearly the fame plan as that in the city of
London.

Vol. m. L The

i Salk. 144. 163.

82 Private Book III.

The anxious defire, that has been fliewn to obtain thefe feve-
ral ads, proves clearly that the nation in general is truly feniible
of the great inconvenience, ariling from the difufe of the antient
county and hundred-courts; wherein caufes of this Imall value
werealways formerly decided, with very little trouble andexpenfe
to the parties. But it is to be feared, that the general remedy
which of late hath been principally applied to this inconvenience
(the erecting thefe new jurifdictions) may icfeif be attended in time
•with very ill confequences: as the method of proceeding therein
is entirely in derogation of the common law ; as their large difcre-
tionary powers create a petty tyranny in a let of Handing com-
miilioners ; and as the dilufc of the trial by jury may tend to ef-
trange the minds of the people from that valuable prerogative
of Englifiimen, which has already been more than fufficiently
excluded in many inftances. How much rather is it to be wilhed
that the proceedings in the county and hundred-courts could
again be revived, without burthening the freeholders with too
frequent and tedious attendances; and at the fame time removing
the delays that have infenfibly crept into their proceedings, and
the power that either party have of transferring at pleafure their
fuits to the courts at Weftminfter ! And we may with fatisfac-
tion obferve, that this experiment has been actually tried, and
has fucceeded in the populous county of Middlefex; which mi^ht
ferve as an example for others. For by flatute 23 Geo. II. c. 33.
it is enacted, i. That a fpecial county court fliall beheld, at
leaft once a month in every hundred of the county of Middle-
fex, by the county clerk. 2. That twelve freeholders of that
hundred, qualified to ferve on juries, and ftruck by the Iheriff,
Ihall be fummoned to appear at luch court by rotation ; fo as
none ihall be fummoned oftner than once a year. 3. That
in all caufes, not exceeding the value of forty fliillings, the
county clerk and twelve fuitors iliall proceed in a fummary way,
examining the parties and witnefTes on oath, without the formal
procefs antiently ufed ; and fliall make fuch order therein as they
Ihall judge agreeable to confcicnce. 4. That no plaints fliall be

removed

Ch. 6. Wrongs. 8 j

removed out of this court, by any procefs whatfoever ; biU the
determination herein fliall be final. 5. Tiiat if any action be
brouf^ht in any of the fuperior courts againfi a pcribn rciident in
Middlefex, for a debt or contract, upon the trial wliereof the
jury (hall find lefs than 40-1-. damages, the plaintiff fliali recover
no coils, but ihall pay the defendant double coils ; unlefs upon
fome fpecial circumilances, to be certified by the judge who.
tried it. 6. Laitly, a table of very moderate fees is prefer! bed
and fet down in the a(5l ; vt^hich are not to be exceeded upon any
account whatfoever. This is a plan entirely agreeable to the con-
ftitution and genius of the nation: calculated to prevent a multi-
tude of vexatious actions in the fuperior courts, and at the liune
time to give honeft creditors an opportunity of recovering fmall
funis • which now they are frequently deterred from by the ex-
penieof a fuit at law : a plan which, in (hort, wants only to be
o-enerally known, in order to it's univerfal reception.

X. There is yet another fpecies of private courts, which I
muft not pafs over in filence : viz. the chancellor*s courts in the
two unherfities of England. Which two learned bodies enjoy
thefolejurifdicT:ion,in exclufion of the king's courts, over all
civil adions and fuits whatfoever, where a fcholar or privileged
perfon is one of the parties ; excepting in fuch cafes where the
rio-ht of freehold is concerned. And thefe by the univeriity char-
ter they are at Uberty to try and determine, either according to
the common law of the land, or according to their own local
cuftoms, at their difcretion : which has generally led them to
carry on their procefs in a courfe much conformed to the civil
law, for reafons fufficiently explained in a former volume\

These privileges were granted, that the ftudents might not
be diftracledfrom their fludies by legal procefs from diftant courts
and other forenfic avocations. And privileges of this kind are of
very high antiquity, being generally enjoyed by all foreign uni=

L 2 verfities

k Vol. I. introd. §. i.

84 Private ' Book III.

verlities as well as our own, in confequence (I apprehend) of a
conftitution of the emperor Frederick, J. Z). 1158'. But as to
England in particular, the oldeft charter that I have feen, con-
taining this grant to the univerfity of Oxford was 28 Hen. III.
A. D. 1244. And the fame privileges were confirmed and en-
larged by almoft every fucceeding prince, down to king Henry
the eighth ; in the fourteenth year of whofe reign the largeft and
mofl extenfive charter of all was granted. One fimilar to which
was afterwards granted to Cambridge in the third year of queen
Elizabeth. But yet, notwithftandingthefe charters, the privi-
leges granted therein, of proceeding in a courfe different from
the law of the land, were of fo high a nature, that they were
held to be invalid ; for though the king might erect new courts,
yet he could not alter the courfe of law by his letters patent.
Therefore in the reign of queen Elizabeth an acl of parliament
was obtained™, confirmingr all the charters of the two univerfi-
ties, and thofe of 14 Hen. VIII. and 3 Eliz.by name. Which
i'leffed aSf, as fir Edward Coke intitles it", eftablifhed this high
privilege without any doubt or oppofition° : or, as fir Matthew
Hale", very fully expreffes the fenfe of the common law and the
operation of the acl: of parliament, " although king Henry the
" eighth, 14 A. R.fiii, granted to the univerfity a liberal char-
*' ter, to proceed according to the ufe of the univerfity; viz. by
" a courfe much conformed to the civil law ; yet that charter
" had not been fufficient to have warranted fuch proceedings
*' without the help of an a6l of parliament. And therefore in
"13 Eliz. an aft pafTed, whereby that charter was in effeft
" enacted; and it is thereby that at this day they have a kind
*' of civil law procedure, even in matters that are of themlelves
" of common law cognizance, where either of the parties is
«« privileged."

This

1 Coth 4. tit. 13. o Jenk. Cent. a. pi. 88. Cent. 3. pi. 33.

m 13 F.liz. c. io. Hirdr. 504. Godholt. aoi.

a 4 Ifia. Ji7. P Hift. C. L. 33.

Ch. 6. Wrongs. 85

Thi s privilege, fo far as It relates to civil caufes, is exercifed
at Oxford in the chancellor's court ; the judge of which is the
vice-chancellor, his deputy, or afTeffor. From his fentence an
appeal lies to delegates appointed by the congregation j from
thence to other delegates of the houfe of convocation ; and if
they all three concur in the fame fentence it is final, at leaft by
the ftatutes of the univerfity'^, according to the rule of the civil
law'. But, if there be any difcordance or variation in any of the
three fentences, an appeal lies in the laft refort to judges dele-
gates appointed by the crown under the great feal in chancery,

I HAVE now gone through the feveral fpecies of private, or
fpecial courts, of the greateft note in the kingdom, inftituted
for thelocul redrefs of private wrongs; and muft, in the clofe
of all, make one general obfervation from fir Edward Coke'' :
that thefe particular jurifdidions, derogating from the genera!
jurifdiciion of the courts of common law, ^re ever taken llricHy,
and cannot be extended farther than the exprefs letter of theii*
privileges will moll explicitely warrant.

q Tit. zi. §."19. S i Inft. 54!.

r Cod. 7. 70. 1.

86 Private Book III.

Chapter the seventh.

Of the cognizance of PRIVATE

WRONGS.

WE are now to proceed to the cognizance of private wrongs;
that is, to conlider in which of the vaft variety of courts,
mentioned in the three preceding chapters, every poffible injury
that can be offered to a man's perfon or property is certain of
meeting with redrefs.

The authority of the feveral courts of private and fpecial ju-
rifdidion, or of what wrongs fuch courts have cognizance, was
neceflarily remarked as thoferefpective tribunals were enumerated
and therefore need not be here again repeated : which will con-
fine our prefent enquiry to the cognizance of civil injuries in the
feveral courts of public or general juriidiclion. And the order,
in which 1 fliall purfue this enquiry, will be by (hewing; i. What
actions may be brought, or what injuries remedied, in the eccle-
fiaftical courts. 2. Vv^hat in the military. 3. What in the ma-
ritime. And 4. What in the courts of common law.

And, with regard to the three firft of thefe particulars, I
muft beg leave not fo much to confider what hath at any time
been claimed or pretended to belong to their jurifdiclion, by the
officers and judges of thofe refpedive courts ; but what the com-
mon law allows and permits to be fo. For thefe eccentrical tri-
bunals (which are principally guided by the rules of the imperial
and canon laws) as they iubfflt and are admitted in England, not

by

Ch. 7. Wrongs. ^7

by any right of their own% but upon bare fufference and tolera-
tion from the municipal laws, mull have recourfe to the laws of
that country wherein they are thus adopted, to be informed how
far their jurifdiclion extends, or what caufes are permitted, and
what forbidden, to be difcufled or drawn in queflion before them.
It matters not therefore what the pandects of JuHiniim, or the
decretals of Gregory have ordained. They are here of no more
intrinfic authority than the laws of Solon and Lycurgus: curious
perhaps for their antiquity, refpeclable for their equity, and fre-
quently of admirable ufe in illuftrating a point of hiftory. Nor
is it at all material in what light other nations may confider this
matter of jurifdiclion. Every nation muft and will abide by it's
own municipal laws; which various accidents confpire to render
different in almofl every country in Europe. We permit fome
kinds of fuits to be of ecclefiaflical cognizance, which other na-
tions have referred entirely to the temporal courts; as concerning
wills and fucceffiqns to inteftates' chattels : and perhaps we may
in our turn, prohibit them from interfering in fome controveriies
which on the continent m.ay be looked upon as merely fpiritwaL
^ In fliort, the common law of England is the one uniform rule
to determine the jurifdiclion of courts ; and, if any tribunals
whatfoever attempt to exceed the limits fo prefcribed them, the
king's courts of common law may and do prohibit them j and
in fome cafes punifh theirjudges"'. y

Having premifed this general caution, I proceed now to
confider

I. T H E wrongs or injuries cognizable by the eccleiiallical
courts. I mean fuch as are offered to private perfons or indivi-
duals ; which are cognizable by the ecclefiaftical court, not for
reformation of the offender himfelf or party injuring (pro falute.
animae, as immoralities in general are, when unconnected with
private injuries) but fuch as are there to be profecuted for the
fake of the party injured, to make him a fatisfaction and redrefs

for

a Sec vol. I. introd. §. r. b JJal. Hift. C. L. c. *.

88 Private Book IIL

for the damare which he has fuflained. And thefe T fhall reduce
under three general heads j of caufes pecuniary^ caufes rdatrimo-
nial, and caufes tejlamentary,

I. Pecuniary caufes, cognizable in the eccleliaftical courts,
are fuch as arile either from the vitholding ccclefiafticai dues,
or the doing or neglecting fome acl relating to the church,
whereby fome damage accrues to the pl.iintiif ; towards obtain-
ing a fatisfaclion for which he ib perrxiicted to inllitute a fuit in
the fpiritual court.

The principal of thefe is the fubtraclion or witholdinrg of
tithes from the parfon or vicar, whether the former be a clergy-
man or a lay appropriator^ But herein a diftincllon muft be
taken : for the ecclefiaftical courts have no jmirdicT:ion to try the
right of tithes unlefs between fpiritual perfons''; but in ordinary
cafes, between fpiritual men and lay men, are only to compel the
payment of them, when the right is not difputed% By the fta-
tute or rather writ ^ of circumfpecle agatis^, it is declared that the
court chriftian Ihall not be prohibited from holding plea, '■^firec-
" tor petat ^J^erfus parochiams obhitiones et dec'unas debltas et confue-
«' tas :'' fo that if any difpute arifes whether fuch tithes be due
and acciiftomed, this cannot be determined in the ecclefiaftical
court, but before the king's courts of the common law ; as fuch
queftion affects the temporal inheritance, and the determination
muft bind the real property. But where the right does not come
into queftion, but only the facf^ whether or no the tithes al-
lowed to be due be really fubtrafted or withdrawn, this is a tran-
fient perfonal injury, for which the remedy may properly be had
in the fpiritual court ; viz. the recovery of the tithes, or their
equivalent. By ftatute 2 & ;^ Edw. VI. c. 13. it is enabled, that
if any perfon fhall carry off his praedal tithes {viz, of corn, hay,
or the like) before the tenth part is duly fet forth, or agreement
• . is

e Stat. 5i Hen.VllI. c. 7. ' e 2 Infl. iC^. 489, 4po.

d 2 Roll. Abr. joy, 3to. Bro. Air. t. f See nanington. izo. 3 Pryn.Rcc. 335.

juri/iliilion. 85. g 13 Edw. 1. l\. 4. or rAhcr, <) Edw. II.

Ch. 7." Wrongs. 89

is made with the proprietor, or fhall vvillingfy withdraw his tithes
of the fame, or lliall flop or hinder the proprietor of the tithes
or his deputy from viewing or carrying them away; fuch offend-
er fliall pay double the value of the tithes, with cofts, to be re-
covered before the ecclefiaftical judge, according to the king's ec-
clefiaftical laws. By a former claufe of the fame llatute, the tre-
ble value of the tithes, fo fubtrafted or withheld, may be fued
for in the temporal courts, which is equivalent to the double value
to be fued for in the ecclefiaftical. For one may fue for and re-
cover in the ecclefiaftical courts the tithes themfelves, or a re-
compenfe for them, by the antient law ; to which the fuit for the
double value is fuperadded by the ftatute. But as no fuit lay in
the temporal courts for the fubtraclion of tithes themfelves,
therefore the ftatute gave a treble forfeiture, if fued for there ; in
order to make the courfe of juftice uniform, by giving the fame
reparation in one court as in the other ^. However it now feldom
happens that tithes are fued for at all in the fpiritual court ; for
if the defendant pleads any cuftom, modus^ compofition, or
other matter whereby the right of tithing is called in queftion,
this takes it out of the jurifdidion of the eccleliaftical judges:
for the law will not fuffer the exiftence of fuch a right to be
decided by the fentence of any fingle, much lefs an ecclefiaftical,
judge ; without the verdifl of a jury. But a more fummary
method than either of recovering fmall tithes under the value
of 40J. is given by ftatute 7 and 8 W. III. c. 6. by complaint to
two juftices of the peace : and, by another ftatute of the fame
year^, the fame remedy is extended to all tithes withheld by
quakers under the value often pounds.

Another pecuniary injury, cognizable in the fpiritual courts,
is the non-payment of other eccleftaftical dues to the clergy ; as
penfions, mortuaries, compofitions, offerings, and whatfoever
falls under the denomination of furplice-fees, for marriages or
other minifterial offices of the church : all which injuries are re-
drelTed by a decree for their actual payment. Befides which all
Vol.111. M offerings,

\ ilnft. aso. jc. 34.

90 Private Pook III.

oiferingSj o^'^lauons, and obventlons, not exceeding the value of
40 J-. may be recovered in a fammary way, before two jultices
of the peace'. But care muft be taken that thefe are real and
not imaginary dues ; for, if they be contrary to the common law,
a prohibition will ilTue out of the temporal courts to ftop ailfuits
concerning them. As where a fee was demanded by the minifter
of the parilh for the baptifm of a child, which was admihiftred
in another place"; this, however authorized by the canon, is
contrary to common right : for of common right no fee is due
to the minifter even for performing fuch branches of his duty,
and it can only be fupported by a fpecial cuftom ' ; but no cuftom
can fupport the demand of a fee without performing them at ail.

For fees alfo, fettled and acknowleged to be due to the offi-
cers of the ecclefiallical courts, a fuit will lie therein : but not if
the right of the fees is at all difputable ; for then it muft be de-
cided at the common law "'. It is alfo faid, that if a curate be li-
cenced, and his falary appointed by the biihop, and he be not
paid, the curate hath a remedy in the eccleliaftical court": but,
if he be not licenced, or hath no fuch falary appointed, or hath
made a fpecial agreement with the reclor, he muft me for a (ii-
tisfaci'on at common law"; either by proving luch fpecial agree-
ment, or eifc by leaving it to a jury to give damages upon a
quantum meruit^ that is, in conlideration of Vi'hat he reafonably
deferved in proportion to the fervice performed.

Under this head of pecuniary injuries may alfo be reduced
the feveral matteis of Ipoliation, dilapidations, and neglect of
repairing the church and things thereunto belonging ; for which
a fatisfaclion may be fued for in the eccleliaftical court.

Spoliation is an injury done by one clerk or incumbent
to another, in taking the fruits of his benefice without any right

thereunto,

i Stat. 7 & 8 W. III. c. <?. m 1 Ventr. !(?{.

k Salk 3v n • Burn. eccl. hw. 438.

1 Mi. 334. Lord Raym. 450. i;58. o i Fixcm. 7c.

Ch. 7. Wrongs. p^t

thereunto, but under a pretended title. It is remedied by a de-
cree to account for the proiits Co taken. Tliis injury, when the
y«j-/'<f//ro//(.7//^j- or right oFadvowlbn doth not come in debate, is
co.>;nizai)le in the ipiritual court : as if a patron iirft prcfents A
to a benefice, who IS initituted and inducted thereto; and then,
upon pretence of a vacancy, tbe Ihfie patron prefents B to ths
fame livin^^, and he a!fo obtains iniiitution and induction. Now
if A difpuies the fac1: of the vacancy, then that clerk who is
kept out ot the profits of the living, whichever it be, may fue
the other in the fpiritual court for rpoliation,or taking the pro-
fits of /j/V benefice. And itfliall txiere oe tried, whether the li-
ving were, or were not, vacant : upon which, the validity of the
fecond clerk's pretenfions muft depend". But if the right of
patronage comes at all into difpute, as if one patron prefented
A, and another patron prefented B, there the ecclefiaftical court
hath no cognizance, provided the tithes fued for amount to a
fourth part of the value of the living, but may be prohibited at
the inftance of the patron by the king's writ of inclicavit^. So
alfo if a clerk, without any colour of title, ejects another from
his parfonage, this injury mufl beredreifed in thetempo'al courts:
for it depends upon no queftion dcter'-ivinable by the fpiritual law,
(as plurality of benefices or no plaiality, vacancy or no vacancy)
but is merely a civil injury.

For dilapidations which are a kind of eccleflafl ical wafle,
either voluntary, by pulling down ; or pcrniiaive, by fuffering
the chancel, parfonage-houfe, and other buildings thereunto be-
longing, to decay ; an action alfo lies, eiiherin the fpiritual court
by the canon law, or in the courts of common law^: and it may
be brought by the fucceiibr againft the predecelTor, ii living, or,
if dead, then againfl: his executors. It is alfo faid to be good
caufe of deprivation, if the biihop, parfon, vicar, or other ec-
clefiaftical perfon, dilapidates the buildings or cuts down timber
growing on the patrimony of the church, unlefs for neceffary

M 2 repairs'":

o F. N. B. 3(t. 4rllc- Cleri. 9 Edw. II. c- s. F. N. B. 45.

p CircumfpeBe a^ath ; 13 Edw. I. ft, 4. ^ Cart. 1*4. 3 Lev. 2,(55.

^2 Private Book III.

repairs': and that a writ of prohibition will alfo lie againft
him in the courts of common law^ By ftatute 13 Eliz. c. 10.
if any fpiritual perfon makes over or aUenates his goods with in-
tent to defeat his fucceffors of their remedy for dilapidations, the
fuccelTor fliall have fuch remedy againft the alienee, in the ec-
cleilaftical court, as if he were the executor of his predeceffor.
And by ftatute 14 Eliz. c. 11. all money recovered for dilapida-
tions ihall within two years be employed upon the buildings, in
refpe^b whereof it was recovered, on penalty of forfeiting double
the value to the crown.

A s to the negle<!il: of reparations of the church, church-yard,
and the like, the fpiritual court has undoubted cognizance there-
of* ; and a fuit may be brought therein for non-payment of a
rate made by the church-wardens for that purpofe. And thefe
are the principal pecuniary injuries, which are cognizable, or for
which fuits may be inftituted, in the ecclefiaftical courts,

2 . M AT R I M o N I A L caufes, or injuries refpecling the rights
of marriage, are another, and a much more undifturbed, branch
of the ecclefiaftical jurifdidlion. Though, if we confider mar-
riages in the light of mere civil contracts, they do not feem to
be properly of fpiritual cognizance'. But the llomanifts having
very early converted this contract into a holy facramental ordi-
nance, the church of courfe took it under her protection, upon
the divifton ot the two jurifdiftious. And, in the hands of fuch
able politicians, it fbon became an engine of great importance to
the papal fcheme of an univerfal monarchy over Chriftendom.
The numberlefs canonical impediments that were invented, and
occafionally difpenfed with, by the holy fee, not only enriched
the coffers of the church, but gave it a vaft afcendant over prin-
ces or all denominations; whofe marriages were fand:ified or re-
pr.)bated, their iflue legitimated or baftardized, and the fucceflion
to their thrones eftabhihed or rendered precarious, according to

the

r I Roll, Rep. Hfi.ii Rep. e)8. Godb. %$f. $ CircumJpcBe agatis. j Rep. 66.

i 3 JBulllr. J58. I RoU. Rep. 335, t Wajb. alliaace. 173.

Ch. 7. Wrongs. 93

the humour or interefl of the reigning pontiff: befldes a thou-
faaJ nice and diiScult fcriiples, with which the clergy of thofe
ages puzzled theunderftandings and loaded theconfciences of the
inferior orders of the I.iity ; and which could only be unravelled
by thefe their fpiritual guides. Yet, abftracfed from this univerfal
influence, which affords fo good a reafon for their conduct, one
might otherwife be led to wonder, that the fime authority, which
enjoined the flricleft celibacy to the priellhood, fhould think
them the proper judges in caufes between man and wife. Thefc
caufes indeed, partly from the nature of the injuries complained
of, and partly from the clerical method of treating them', foon
became too grofs for the modefty of a lay tribunal. And caufes
inatrimonial are now fo peculiarly ecclehailical, that the temporal
courts will never interfere in controverlies of this kind, unlefs
in fome particular cafes. As if the fpiritual court do proceed to
call a marriage In queftion after the death of either of the parties;
this the courts of common law will prohibit, becaufe it tends
to baftardize and diiinherit the IlTue ; who cannot fo well defend
the marriage, as the parties themfelves, when both of them
living, might have done".

O F matrimonal caufes, one of the firft and principal Is,
Z. Ca?^fajaditationis niatr'niieni'i -, when one of the parties boafts
or gives oat that he or fhe is married to the other, whereby a
common reputation of their matrimony may enfue. On this
ground the party injured may libel the other in the fpiritual court ;
and, unlefs t-he defendant undertakes and makes out a proof of
the aclual marriage, he or fhe is enjoined perpetual filence upon
that head ; which is the only remedy the eccleilaftical courts can
give for this injury. 2. Another fpecies of matrimonial caufes,
was when a party contracted to another brought a fuic in the ec-
clefiaftical court to compel a celebration of the marriage in pur-
fuance of fuch contract ; but this branch of caufes Is no v cut
off entirely by the act for preventing clandeftine marriages,

26 Geo. II,

V Some of the impureft books, that arc cs- the popi.Ti clergy on the fubjefts of matrl-
t>nt in any language, are tkofe written by mony and divorce.

u 2, lni\, 0i|4.

94 Private Book III.

26 Geo. II. c. 33. which enafls, that for the future no fuit ftiall
be had in any ecclefiaftical court, to compel a celebration of
jn^xviAQ^eh facie eccleftae, for or becaufe of any contrad of ma-
trimony whatfoever. 3. The fuit for reftitution of conjugal rights
js alfo another fpecies of matrimonial caufes : which is brought
whenever either the hufband or wife is guilty of the injury of
fubtraftion, or lives feparate from the other without any fufH-
cient reafon ; \a which cafe the eccleliaftical jurifdiclion will
compel them to come together again, if either party be weak
enough to defire it, contrary to the inclination of the other.
4. Divorces alfo, of which and their feveral diftinftions we treat-
ed at large in a former volume'^, are caufes thoroughly matri-
monial, and cognizable by the ecclcfiaftical judge. If it becomes
improper, through fome fupervenient caufe arifing fA- pfl fa&o,
that the parties fliould live together any longer; as through in-
tolerable cruelty, adultery, a perpetual difeafe, and the like ; this
vtnfitnefs or inhabilicy for the marriage ftate maybe looked upon
as an injury to the fuffering party ; and for this the eccleliaftical
law adminifters the remedy of feparation, or a divorce a menfa et
thoto. But if the caufe exifted previous to the marriage, and was
fuch a one as rendered the marriage unlawful ab initio, as con-
fanguinity, corporal imbecillity, or the like ; in this cafe the law
looks upon the marriage to have been always ^lull and void, be-
ing contracted //z/r^/M^y^'w legis, and decrees not only a feparation
from bed and board, but ^ ■y/wra/i? mafrimofiii itfelf. 5. The lall
fpecies of matrimonial caufes is a confequence drawn from one
of the fpecies of divorce, that a ?nenfa et thoro ; which is the
fuit for alimony, a term which fignifies maintenance : which fuit
the wife, in cafe of feparation, may have againft her huiband,
if he neglects or refufes to make her an allowance fuitable to
their ftation in life. This is an injury to the wife, and the court
chriflian will rcdrefs it by alligning her a competent maintenance,
and compelling the hufband by eccleliaftical ccnfures to pay it. ,
But no ahmony will be affigned in cafe of a divorce for adultery
on her part j for as that amounts to a forfeiture of her dower
^ after

w Book I, ch. i|.

Ch. 7.

Wrongs.

9S

after his death, it is alfo a fufficient reafon why Ihe fhould not
be partaker of his eftate when living.

3. Test/^mentary caufes are the only remaining fpecies,
belonging to the ecclefiaftical juriidiclion; which a>; they are
certainly of a mere temporal nature % may feem at firll view a
little oddly ranked among matters ofafpiritual cognizance. And
indeed (as was in fome degree obferved in a. former volume^)
they were originally cognizable in the king's courts of commoa
h\v,viz, the county courts^; and afterwards transferred to the
jurifdiction of the church by the favour of the crown, as a na-
tural confequence of granting to the bifhops the adminiftratioa
of inteflates' effecls.

This fpiritual jurifdiclion of teftamentary caufes is a pecu-
liar conflitution of this ifland ; for in almoil all other (even in
popiih) countries all matters teftamentary are of thejurifdidion
of the civil magiftrate. And that this privilege is enjoyed by the
clergy in England, not as a matter of ecclefiaftical right, but by
the fpecial favour and indulgence of the municipal law, and as
it fhould feem by fome public act of the great council, is freely
acknowleged by Lindewode, the ablefl canonifl of the fifteenth
century. Teftamentary caufes, he obferves, belong to the eccle-
fiaflical courts " de confuetudine AngUae, et fuper confenfu regio et
^^ fuorum proccrum in tal'ihus ab antiquo conceffb^" The fame was,
about acentury before, very openly profeiTedin a canon of arch-
bifhop Stratford, viz, that adminiftration of inteflates goods was
" ab oUrff* granted to the ordinary, " confenju regio et ina^natum
" regni Angliae ^." The conllitutions of cardinal Othobon alfo
teftify, that this proviiion " oUm a praelatis cum approbatione regis
" et baronum dicitur emanajfe'^ y And archbifhop Parker '', in queen
Elizabeth's time, affirms in exprefs words, that originally in mat-

t€r»

X Warburt. allinncc. 173. b To'id. I. 3. t. i^. fol. »5j.

y Book II. ch. 3*. C cap. a 3.

■% nickes D'ffcr. Eplftolar. fa^. 8. j8. d Sec 9 Rep. 38.

a Froviticbl. /. 3. t. 13. fol. 17G,

o6 Private Book III,

ters teftamentary " non ullmi hahehant epifcopi authoritatem, prae-
*' ter earn quam a rege accept am referebant. Jus tejl amenta pro-
" bafidi non babcbant : adminijhationis poteflatem cuique delegare
" non pot er ant.'*

A T what period of time the ecclefiaftical jurifdicllon of tef-
taments and inteftacies began in England, is not afcertained by
any antient writer; and Lindewode^ very fairly confelTes, " cnjus
" regis tejnporibiis hoc ordinatum Jtt, non reperio*' We find it in-
deed frequently afferted in our common law books, that it is but
of late years that the church hath had the probate of wills*".
But this muft only be underftood to mean, that it had not always
had this prerogative : for certainly it is of very high antiquity.
Lindewode, we have feen, declares that it was ^^ ab antiquo-y*
Stratford, in the reign of king Edward III, mentions it as " ab
*' dim ordinatum ;'* and Cardinal Othobon, in the 52 Hen. III.
fpeaks of it as an antient tradition. Braclon holds it for clear
law in the fame reign of Henry III, that matters teftamentary
belonged to the fpiritual court ^. And, yet earlier, the difpofition
of inteflates* goods " per vlfum ecclefiae'" was one of the articles
confirmed to the prelates by king John's magna carta ^. Matthew
Paris alfoinforms us, that king Richard I. ordained in Normandy
*' quod dijlributio rerum quae in teftamento relinquuntur autoritate
'* ecclefiaefiet^ And even this ordinance, of king Richard, was
only an introduction of the fame law into his ducal dominions,
which before prevailed in this kingdom : for in the reign of his
father Henry II, Glanvilis exprefs, that '-^ fi quis aliquid dixerit
*' contra teflamentum, placitmn illud in curia chriftianitatis audir'i
" debet et terminari '." And the Scots book called regiam majejlu'
tern agrees verbatim with Glanvil in this point ".

I T appears that the foreign clergy were pretty early ambitious
of this branch of power : but their attempts to aflume it on the

conti-

e fol. x6t,. h ca^. 17. cixt, 0:.9n,

f Fitz. Abr. tit. teftament. pi 4. x Roll. i I. n-c 8.

ALr.ii7. p Rep. 37. Vaugli. J07. k /. 1. f. 38.
g /. ^, ie txce£U(>miiits. e. 10.

Ch. 7- ' Wrongs., 97

concinent were effedually curbed by the edi<^ of the emperor
Juftin ', which rellrained the inlinuation or probate of tcftaments
(as formerly) to the office of the rnagifier cenfus : for which the
emperor fubjoins this reafon \ " ahfurdum etenhn cUricis efl^ inuno
" etiam opprobriofwu, ft peritos fe velint ojlendere d'lfceptationum ejfe
*•'■ forenfiiimy But afterwards by the canon law '" it was allowed,
that the biftiop might compel by ecclefiailical ccnfures the per-
formance of a bequeft to pious iifes. And therefore, that being
conlidered as a caufe quae fecundnm camnes et epifcopales leges ad
regimen animarum pertinuit, it fell within the jurifdiclon of the
fpiritual courts by the exprefs words of the charter of king Wil-
liam I, which feparated thofe courts from the temporal. And
afterwards, when king Henry I by his coronation-charter direcb-
ed, that the goods of an intefi:ate fhould be divided for the good
of his foul", this made all inteftacies immediately fpiritual caufes,
as much as a legacy to pious ufes had been before. This there-
fore, we may probably conjefture, was the aera referred to by
Stratford and Othobon, when the king by the advice of the pre-
lates, and with the confent of his barons, invefted the church
with this privilege. And accordingly in king Stephen's charter
it is provided, that the goods of an inteftate ccclefiaftic ihall be
diftributed pro falute animae ejus, ecdeftae confdio^ ; which latter
words are equivalent to per vijiim ecclefiae in the great charter of
king John before-mentioned. And the Danes and Swedes (vv'ho
received the rudiments of chriftlanity and eccleiiauicai difcipline
from England about the beginning of the twelfth century) have
thence alfo adopted the fpiritual cognizance of inteftacies, tefta-
ments, and legacies ^*

This jurifdiclion, we have feen, is principally exercifed with

us in the confiftory courts of every diocefan bifliop, and in the

Vol. III. N prero-

1 Corf. I, 3. 41. eis melius vifum fuerit. (Text. Roffens. c. 34.

m Decretal. 3. i6. 17. Gilb. R^p. 204,105. p. ji,)

n St qiiis haronum feu hominum meorum — o Lord Lyttelt. Hen. II. vol. i. s^6.

fecumavifuam r.on dcderit Del dai e difpofuerlt, Huarne c?d Gul. Neubr. -jii. '

uxor fus, five liheri, ant parentes et legithni p Stiernhook, dc jure Sucon. I. 3. c. 8.
hmiries ejus, earn pro auima ejus dividant, f.cut

9^ Private Book IIL

prerogative court of the metropolitan, originally ; and in the
arches court and court of delegates by way of appeal. It is di-
viiible into three branches ; the probate of XAalls, the granting of
adminiftrations, and the fuing for. legacies. The two former of
which, when no oppofition is made, are granted merely ex officio
et deb'ito jujVituie^ and are then the objecl: of what is called the
'vehmtary, and not the contentious jurifdiction. But when a ca-
veat is entered againil proving the will, or granting adminiftra-
tion, and a fuit thereupon follows to determine either the vali-
dity of the teftament, or who hath a right to the adminiftration ;
this claim and obflruclion by the adverle party are an injury to
the party entitled, and as fuch are remedied by the fentence of
the fpiritual court, either by eftablifhing the will or granting the
adminiftration. Subtradion, the witholding or detaining, of
legacies is alfo ftill more apparently injurious, by depriving the
legatees of that right, with which the laws of the land, and the
will of the deceafed have inverted them : and therefore, as a
confequcntial part of teftamentary jurifdiclion, the fpiritual court
adpiinifters redrefs herein, by compelling the executor to pay
them. But in this lall: cafe the courts of equity exercife a con-
current jurifdiclion with the ecclefiaftical courts, as incident to
fome other fpecies of relief prayed by the complainant ; as to
compel the executor to account for the teftator's effects, or alTent
to the legacy, or the like. For, as it is beneath the dignity of
the king's courts to be merely ancillary to other inferior jurifdic-
tions, the caufe, when once brought there, receives there alfo
it's full determination.

These are the principal injuries; for which the party grieved
either muft, or may, feek his remedy in the fpiritual courts.
But before I entirely difniifs this head, it may not be improper
to add a Ihort word concerning the method of proceeding in thefe
tribunals, with regard to the redrefs of injuries.

I T muft (in the lirft place) be acknowleged, to the honour of
the fpiritual courts, that though they continue to this day to de-
cide

Ch. 7-

W 11 O N G s. 99

cide many qiieftions which ar« properly of temporal cognizance,
yecjuftice is in general fo ably and impartially adminiftrcd in
thole tribunals, (efpecially of the fupcrior is:ind)and the bounda-
ries of their power are now fo well known and eflablifhed, that
no material inconvenience at prefent arifes from this jurifdldion
flill continuing in the anticnt chancl. And, fhould an alteration
be attempted, great confuilon would probably arifc, in over-
turning long eftabliihed forms, and new-modelling a courfe of
proceedings that has now aUed for feven centuries.

The eftablifliment of . civillaw procefs in all the eccle-
fiaftical courts was indcea a maRerpiece of papal difcernment,
as it made acoalicion impraclicable between them and the na-
tional tribunals, v»'ithout manifeft inconvenience and hazard.
And this confideration had undoubtedly it's weight in cauiing this
meafure to be adopted, though many other caufes concurred.
The time when the pandcccs of Juftinian were difcovered afrefli
and refcued from the duft of antiquity, the eagernefs with which
they were ftudied by the popifh ecciefiaftics, and the confequent
diffentions between the clergy and the laity of England, have
formerly "^ been fpoken to at large. I fliall only now remark upon
thofe collections, that their being written in the Latin tongue,
and referring fo much to the will of the prince and his delegated
officers of juftice, fufficicntly recommended them to the court of
Rome, exclulive of their intrinlic merit. To keep the laity in the
darkeft ignorance, and to monopolize the little fcicnce, which
then exifted, entirely among the monkilh clergy, were deep-
rooted principles of papal policy. And, as the bi&ops of Rome
affected in all points to mimic the imperial grandeur, as the fpi^
ritual prerogatives were moulded on the pattern of the temporal,
fo the canon law procefs was formed on the m.odel of the civil
law : the prelates embracing with the utmoft ardour a method of
judicial proceedings, whicli v/as carried on in a language un-*
known to the bulk of the people, which banilhed the intervention

N 2 of

q Vol. L introd. §. i.

lOO

Private

Book III.

of a jury (that bulwark of Gothic liberty) and which placed an
arbitrary power of decifion in the breaft of a fingle man.

The proceedings in the ecclefiaftical courts are therefore re-
gulated according to the practice of the civil and canon laws ; or
rather according to a mixture of both, corrected and new-mo-
delled by their own particular ufages, and the interpofition of the
courts of common law. For, if the proceedings in the fpiritual
court be never fo regularly confonant to the rules of the Roman
law,yetif they bemanifeftly repugnant to the fundamental maxims
of the municipal laws, to which upon principles of found p obey
the ecclefiaftical procefs ought in every Hate to conform' ; (as if
they require two witnelTes to prove a faCl, where one will fuffice at
common law) in fuch cafes a prohibition will be awarded againft
them^ But, under thefe reflridions, their ordinary courfe of
proceeding is ; firif , by citatioit, to call the party injuring before
them. Then hy libel, libellus, a little book, or by articles drawn
out in a formal allegation, to fet forth the complainant's ground
of complaint. To this fucceeds the defendant's afijwer upon oath;
when, if he denies or extenuates the charge, they proceed to
froofs by witnefTes examined, and their depofitions taken down
in writing, by an officer of the court. If the defendant
lias any circumflances to offer in his defence, he muft alfo
propound them in what is called his defenfive alle<yation, to
which he is entitled in his turn to the plaintiff 's anjwer upon
oath, and may from thence proceed to //-oo/r as well as his anta-
gonifl. The canonical doctrine of purgation, whereby the par
ties were obliged to anfwer upon oath to any matter, however
criminal, that might be objcftedagainfl them, (though long ago
overruled in the court of chancery, the genius of the Englifh
law having broken through the bondage impofed on it by it's
clerical chancellors, and alTertcd the doctrines of judicial as well
as civil hberty) continued till the middle of the laft century to be
upheld by the fpiritual courts; when the legiflature was obliged
to interpofc, to teach them a lelTon of fmiilar moderation. By the

ftatute

r Warb. alliance, ijp.

s i Roll. Abr, 300. 33*.

Ch. 7' Wrongs. ioi

flatutcof 13 Car. II. c. 12. it is enacted, that it fhall not be
lawful for any billn.>p, or eccleliaflical judge, to tender or admi-
nifter toanyperfon whatfoever, the oath uiually called the oath
ex officio^ or any other oath whereby he may be compelled to
coulefs, accufe, or purge himfelf of any criminal matter or
thing, whereby he may be liable to any cenfure or punifnment.
When all the pleadings and proofs are concluded, they are re-
ferred to the conlideration, not of a jury, but of a fmgle judge ;
who takes information by hearing advocates on both fides, and
thereupon forms his interlocutory decree or definitive Jentence at
his own difcretion : from which there generally lies an appeal, m
the feveral flages mentioned in a former chapter^ ; though, if the
fame be Pot appealed from in fifteen days, it is final;, by the fta-
tute 25 Hen, Vlll. c. 19.

But the point in which thefejurifdiclions are the moft defec-
tive, is that of enforcing their fentences when pronounced ; for
which they have no other procefs, but that of exconununication :
which isdefcribed" to be twofold; the lefs, and the greater ex-
communication. Thelefs is an ecclefiaflical cenfure, excluding
the party from the participation of the facraments : the greater
proceeds farther, and excludes him not only from thefe but alfo
from the company of all chriftians. But, if the judge of any
fpiritual court excommunicates a man for a caufe of which he
hath not the legal cognizance, the party may have an aclion
againft him at common law, and he is alfo liable to be indided
at the fuit of the king'\

Heavy as the penalty of excommunication is, confidered
in a ferious light, there are, notwithftanding, many obftinate
or profligate men, who would defpife the brutum fulmen^ of
mere ecclefiaftical cenfures, efpecially when pronounced by a
petty furrogate in the country, for raihng or contumelious
words, for non-payment of fees, or cofts, or for other trivial
caufe. The common law therefore compafiionately fteps in to

their

■u Co. Litt. 133,

I02 Private Book III.

their aid, and kindly lends a fupporting hand to an othcrwife
tottering authority. Imitating herein the poHcy of our Britifh
anceflors, among whom, according to Caefar", whoever were
interdicted by the Druids from their facrifices, " in numero l?n-
*« piorum ac feeler at orum hahmtur : ah iis omncs dtcedunt^ aditiim
" eorum fermommque defugiunt^ ne quid ex contagione incommodi ac-
" cipiant : neque iis petentihits jus redditur, neqzie hones idlus com-
^' municatur,'* And fowith us by the common law an excom-
municated perfon is difabled to do any, ad, that is required to be
done by one that is prohus et kgalis homo. He cannot ferve upon
juries, cannot be a witnefs in any court, and, which is the word:
of all, cannot bring an action, either real or perfonal, to recover
lands or money due to him'. Nor is this the whole : for if,
within forty days after the fcntencc has been publifhed in the
church, the offender does not fubmit and abide by the fentence
of the fpiritual court, the bilhop may certify fuch contempt to
the king in chancery. Upon which there iflues out a writ to the
flierifFof the county, called, from the bifliop's certificate, "3^ fig-
tiijicavit ; or from it's effect a writ de excommunicato capiendo : and
the flieriff fhali thereupon take the offender, and imprifon him
in the county goal, till he is reconciled to the church, and fuch
reconciliation certified by the bifhop : upon which another writ,
de excommufiicato deliberando, iffues out of chancery to deliver and
releaie him''. This procefs feems founded on the charter of fe-
paration (fo often referred to) of William the conqueror. " Si
** aliquis per fuperhiam elatus ad jujlitiam epifcopalem venire noluerit^
*' vocetiir femel^ fecundo^ et tertio : quod fi nee fic ad emendationem
" venerit, excommunicetur ; et^ ft opus fuerit^ ad hoc vindicandum
*' fortitude et juftiti a regis froe vicecomitii adhibeaturJ* And in cafe
of fubtraction of tithes, a more fummary and expeditious afliftance
is given by the ftatutes of 27 Hen, VIII. c.20. and 32 Hen. VIII,
c. 7. which enact, that upon complaint of any contempt or mifbe-
baviour to the ecclefiaftical judge by the defendant in any fuit for
tithes, any privy counfellor or any two juftices of the peace (or,

in

X ie hello Gall. 1. «. Z F. N. B. 6i.

y Litt. §. aoi.

Ch. 7. W R O N C S. 103

in cafe of difobedience to a definitive fentcnce, any two juflices
of the peace) may commit the party to prifon without bail or
mainprize, till he enters into a recognizance with fuflicient fure-
ties-to give due obedience to the procefs and fentence of the
court. Thefe timely aids, which the common and ftatute law-
have lent to the ecclefiailical jurifdiclion, may ferve to refute
that groundlefs notion which fome are too apt to entertain, that
the courts of Weftminller-hall are at open variance with thofe
atdocl:ors' commons. It is true that they are fometimes obliged
to life a parental authority, in correcting the excefTes of thefe in-
ferior cQurts, and keeping tliem within their legal bounds; but
on the other hand, they afibrd them a parental afliftance, in re-
prcfllng the infolence of contumacious delinquents, and refculng
their jurifdicllon from that contempt, which for want of fufS-
cicnt compulfive powers would otherwife be fure to attend it.

II. I A M next to confider the Injuries cognizable in the ccurt
military, or court oi chivalry. The jurifdicllon of which is de-
clared by ftatute 13 Ric. II. c. 2. to be this ; " that it hath cog-
" nizance of contracls touching deeds of arms and of war, out
«« of the realm, and alfo of things which touch war within the
«' realm, which cannot be determined or difcuffed by the com-
" mon law ; together with other ufages and cuftoms to the fame
*' matters appertaining." So that wherever the common law can
give redrefs, this court hath no juriidiclion : which has thrown
it entirely out of ufe as to the matter of contracls, all fuch being
ufually cognizable In the courts of Weflminfter-hall, if not di-
rectly, at leaft by ficlion of law: as if a contract be made at
Gibraltar, the plaintiff may fuppofe it made at Northampton ;
for the locality, or place of making It, Is of no confequence with
regard to the validity of the contracl:.

The words, " other ufages and cuftoms,'* fupport the claim
of this court, i. To give relief to fuch of the nobility and gen-
try as think themfelves aggrieved In matters of honour ; and
2. To keep up the diftindtion of degrees and quality. Whence

it

104 Private Book III.

it follows, that the civil jnrifdiclion of this court of chivalry is
principally in two points; the redrefiing injuries of honour, and
correcting encroachments in matters of coat-armour, precedency,
and other diilinclions of families.

A s a court of honour, it Is to give fatlsfactlon to all fuch as
are aggrieved in that point ; a point of a nature fo nice and de-
licate, that it's wrongs and injuries efcape the notice of the com-
mon law, and yet are fit to be redrefTed fomewhere. Such, for
inftance, as caUing a man coward, or giving him the lye ; for
which, as they are produclive of no immediate damage to his
perfon or property, no adion will lie in the courts at Weftminfter :
and yet they are fuch Injuries as will prompt every man of fpirit
to demand fome honourable amends, which by the antient law
of the land was appointed to be given In the court of chivalry \
But modern refolutions have determined, that how much fo-
ever fuch a juriidic1:ion may be expedient, yet no action for words
will at prefent lie therein ^ And it hath always been moft clearly
holden% that as this court cannot meddle with any thino- de-
terminable by the common law. It therefore can give no pecu-
niary fatisfaclion or damages ; Inafmuch as the quantity and de-
termination thereof Is ever of common law cognizance. And
therefore this court of chivalry can at moft order reparation in
point of honour ; as, to compel the defendant mendaciumfib'i ipji
i?nponere, or to take the lie that he has given upon himfelf, or
to make fuch other fubmilTion as the laws of honour may re-
quire''. Neither can this court, as to the point of reparation in
honour, hold plea of any fuch word, or thing, wherein the party
is rellevable by the courts of the common law. As if a man
gives another a blow, or calls him thief or murderer ; for in
both thefe cafes the common law has pointed out his proper re-
medy by action.

As

a Yearbook, 37 lien. VI. zx. Selden of C. 11.

iuels, c. 10. Hal. Hift. C. L. 37. c Hal. Hift. C. L. 37.

li Salk, sSi- 7 Mod. 12,$. a Hawk. P. i i Roll, Abr. uS,

I

Ch. 7. Wrongs. 105

A s to the other point of it*s civil jurirdidion, the redreffing
oi incroachments and ufurpations in matters of heraldy and coat-
armour ; it is the bufinefs oi this court, according to fir Matthew
Hale, to adjuft the right of armorial enfigns, bearings, crefts,
fupporters, pennons, &c ; and alfo rights of place or precedence
where the king's patent or ad of parliament (which cannot be
overruled by this court) have not already determined it.

The proceedings in this court are by petition, in a fummary
way ; and the trial not by a jury of twelve men, but by wit-
nefles, or by combat". But as it cannot imprifon, not being a
court of record, and as by the refolution of the fuperior courts
it is now confined to fo narrow and reftrained a jurifdiction, it
has fallen into contempt and difufe. The marflialling of coat-
armour, which was formerly the pride and fludy of all the beft
families in the kingdom, is now greatly difregarded ; and has
fallen into the hands of certain officers and attendants upon this
court, called heralds, who confider it only as a matter of lucre
and not of juflice: whereby fucli f alfity and confuiion have crept
into their records, (which ought to be the Handing evidence of
families, defcents, and coat-armour) that, though formerly fome
credit has been paid to their teflimony, now even their common
■feal will not be received as evidence in any court of juftice in the
kingdom ^ But their original vifitation-books, com^piled when
progrelTes were folemnly and regularly made into every part of
the kingdom, to enquire into the Hate of families, and to re-
gifter fuch marriages and defcents as were verified to them upon
oath, are allowed to be good evidence of pedigrees^. And it is
much to be wiflied, that this practice of vifitation at certain pe-
riods were revived; for the failure of inquifitions poj? mortem,
by the abolition of military tenures, combined with the negli-
gence of the heralds in omitting their ufual progrefTes, has ren-
dered the proof of a modern defcent, for the recovery of an ef-
VoL. III. O tate

- c Co. Litt. i(Si. g Comb. (Tj,

f a Roll. Abr. C^C. s Jon. 114,

io6 Private Book III.

tate or facceflion to a title of honour, more difficult than that of
an antient. This v/ill be indeed remedied for the future, with
refpecl to claims of peerage, by a late {landing order"^ of the
houfe of lords : direclinar the heralds to take exacl accounts and
prcfsrve regular entries of all peers and peerelTes of England, and
their refpeclive defcendants; and that an exact pedigree of each
peer and his family ihall, on the day of his firft admiffion, be
delivered to the houfe by garter, the principal king at arms. But
the general inconvenience, affecting more private fucceflions, flill
continues without a remedy.

III. Injuries cognizable by the courts maritime, or admi-
ralty courts, are the next objed" of our enquiries. Thefe courts
have jurifdiclion and power to try and determine all maritime
caufes; or fuch injuries, which, though they are in their nature
of common law cognizance, yet being committed on the high
feas, out of the reach of our ordinary courts of juflice, are there-
fore to be remedied in a peculiar court of their own. All ad-
miralty caufes muft be therefore caufes arifing wholly upon the
lea, and not within the precincts of any county J. For tJie fta-
tute 13 Ric. II. c. 5. directs that the admiral and his deputy Ihall
not meddle with any thing, but only things done upon the fea ;
and the ftatute 15 Ric. II. c. 3. declares that the court of the
admiral hath no manner of cognizance of any contract, or of
any other thing, done within the body of any county, either by
land or by water ; nor of any wreck of the fea : for that muft
be caft on land before it becomes a wreck". But it is otherwife
of thmg9, fIotfa?n, jet/am, and Ugan ; for over them the admind
hath jurifdiclion, as they are in and upon the fea*". If part of
any contract, or other caufe of afllon, doth arife upon the fea,
and part upon the land, the common law excludes the admiralty
court from it's jurifdiclion ; for, part belonging properly to one
cognizance and part to another, the common or general law takes
place of the particular '. Therefore though pure maritime acqui-

fitious

h II M?.y, T7(S7. k J Rep. \o6.

j Co. Lift. x6o. Hob, 79. 1 Co. Lltt, xCi.

i See book. I. cli. 8.

Ch. 7. Wrongs* 107

litions, which are earned and become due on the high feas, as
feamen's wages, are one proper object of the admiraltyjurilcliction,
even though the contract for them be made upon land"" ; yet,
in general, if there be a contraft made in England and to be
executed upon the feas, as a charterparty or covenant that a ihip
fhall fail to Jamaica, or fliall be in fuch a latitude by fuch a day :
or a contract made upon the fea to be performed in England, as
a bond made on Clipboard to pay money in London or the like ;
thefe kind of mixed contracts belong not to the admiralty jurif-
diction, but to the courts of common Iaw°. And indeed it hath
been farther holden, that the admiralty court cannot hold plea of
any contract under fear.

And alld, as the courts of common law have obtained a con-
current jurifdiction vv'ith the court of chivalry with regard to
foreign contracts, by fuppoiiog them made in England ; fo it is
no uncommon thing for a plaintiff to feign that a contract, really
made at fea, was made at the royal exchange, or other inland
place, in order to draw the cognizance of the fuit from the
courts of admiralty to thofe of Welbriinfter-hall ^. This the ci-
vilians exclaim againft loudly, as inequitable and abfurd ; and
fir Thomas Ridley '^ hath very gravely proved it to be impofiible,
for the fhip in which fuch caufe of action arifes to be really at the
royal exchange in Cornhill. But our lawyers juftify this fiction,
by alleging as before, that the locality of fuch contracts is not at
all elTential to the merits of them : and that learned civilian him-
felf feems to have forgotten how much iuch lictions are adopted
and encouraged in the tloman law : that a foe killed in battle
is fuppofed to live for ever for the benefit of his parents'"; and
that, by the fiction of poJU'iminium and the lex cornei'm^ captives,
when freed from bondage, were held to have never been prifon-
ers % and fuch as died in captivity were fuppofed to have died in
their own country\

O 3 « Vx^HERE

m I Vcntr. 14(5.

n Hob. IX. Hal, Hift- C. L. 35,

o Hoh. 2ii.

p 4 Infl. 1 34.

cj View of the civil lav.', b. 3. p. i. §.

r Inft. X

£ Ff. 49- -s- ■•^- i. •>.

t F/. 4S> ij. i8.

io8 Private Book III.

Where theadmlrars court hath not original jurifdidion of
thecaufe, though there fhould arife in it a queftion that is pro-
per for the cognizance of that court, yet that doth not alter nor
take away the excluiive jurifdidion of the common law". And
fo, vice verfa, if it hath jurifdiclion of the original, it hath alfo
jurifdiclion of all confequential queftions, though properly de-
terminable at common law ". Wherefore, among other reafons,
a fuit for beaconage of a beacon ftanding on a rock in the fea
may be brought in the court of admiralty, the admiral having
an original jurifdiclion over beacons "*. In cafe of prizes alfo in
time of war, between our own nation and another, or between
two other nations, which are taken at fea, and brought into our
ports, the courts of admiralty have an undifturbed and exclufive
jurifdidion to determine the fame according to the law of nations'*.

T II E proceedings of the courts of admiralty bear much re-
femblance to thofe of the civil law, but are not entirely founded
thereon : and they likewife adopt and make ufe of other laws,
as occafion requires ; fuch as the Rhodian law, and the laws of
Olero^^ For the law of England, as has frequently been ob-
ferved, doth not acknowlege or pay any deference to the civil
law conlidered as fuch; but merely permits it's ufe in fuch cafes
Avhere it judged it's determinations equitable, and therefore
blends it, in the prefcnt inftance, with other marine laws: the
whole being corrected, altered, and amended by a6ls of parha-
inent and common ufage; fo that out of this compofition a body
of jurilprudence is extracted, which owes its authority only to
it's receplion here by confent of the crown and people. The firft
procefs in thefe courts is frequently by arreft of the defendant's
perfon^ ; and they Ufo take recognizances or ftipulation of cer-
tain hdejuilors in the nature of baii% and in cafe of default may

imprifon

V Comb. ^r,x. y Hale, Hift. C. L. 36. Co. Litt. 11.

u 13 Rep. S3. J Lev. 2^. Hard. jSj. z C\erkc prax. cur. adm. §. 13.

w I Sid. isTi. a Jbld. §. 11. i Roll. Abr. 531. Rayai. j3.

X a Show, a^i, Corab* <t7'l. Lor^ Raym. n8().

'K.

Ch. 7.

Wrongs. rop

imDrifon both them and then' principal''. They may alfo fine
and impiifon for a contempt in the face of the courts And all
this is I'upported by immemorial ufage, grounded on the neceflity
of fupporting a jurifdiclion fo extenfive^; though oppofite to
the ufual doctrines of the common law : thele being no courts
of record, becaufe in general their procefs is much conformed
to that of the civil law*".

IV. I A M next to confider fuch injuries as are cognizable by
the courts of the common law. And herein I Ihall for the
prefent only remark, that all poffible injuries whatfoever, that
did not fall within the cognizance of either the ecclefiaftical,
military, or maritime tribunals, are for that very reafon within
the cognizance of the common law courts ofjuflice. For it is
a fettled and invariable principle in the laws of England, that
every right when with-held muft have a remedy, and every in-
jury it's proper redrefs. The definition and explication of thefe
numerous injuries, and their refpective legal remedies, will em-
ploy our attention for many fubfequcnt chapters. But, before
we conclude the prefent, 1 lliall jull mention two fpecies of in-
juries, which will properly fall now within our immediate con-
fideration : and which are, either when juflice is delayed by an
inferior court that has proper cognizance of the caufe ; or, when
fuch inferior court takes upon itfelf to examine a caufe and de-
cide the merits without a legal authority.

I. The firft of thefe injuries, refufal or neglecl of juflice, is
remedied either by writ oi procedendo, or of mandamus, A writ
of procedendo adjudicium, iffues out of the court of chancery,
where judges of any court do delay the parties : for that they
will not give judgment, either on the one fide or on the other,
when they ought lo to do. In this cafe a writ of procedendo fliall
be awarded, commanding them in the king's name to proceed to
judgment ; but without fpecifying any particular judgment, for

that

b I Roll. Abr. 5ji, Coih, 1^3. jSo, cl i Keb. 551.

c iVeatr, i. c Bro. Abr. t. ernr. 177.

110 Private Book III.

that (if erroneous) may befetaficiein the courfe of appeal, or by
■writ of error or falfe judgment : and, upon farther neglect or re-
fufal, the judges of the inferior court may be punifhed for their
contempt, by writ of attachment returnable in the king's bench
or common pleas^

A WRIT of ??iandamus is, in general, a. command ilTuing in
the king's name from the court of king's bench, and directed to
any perfon, corporation, or inferior court of judicature, within
the king's dominions ; requiring them to do fome particular thing
therein fpecified, which appertains to their office and duty, and
which the court of king's bench has previoufly determined, or
at leaft fuppofes, to be confonant to right and juftice. It is a high
prerogative writ, of a mod extenfively remedial nature ; and may
be ilTued in fome cafes where the injured party has alfo another
more tedious method of redrefs, as in the cafe of admiilion or
reftitution to an office ; but it iflues in all cafes where the party
hath a right to have any thing done, and hath no other fpeciiic
means of compelKng its performance. A mandamus therefore
lies to compel the admiffion or reftoration of the party applying,
to any office or franchife of a public nature whether fpiritual or
temporal ; to academical degrees ; to the ufe of a meeting-
houfe ; &c : it lies for the produflion, infpection, or delivery,
of public books and papers ; for the furrender of the regalia o£
a corporation ; to oblige bodies corporate to affix their common
feal ; to compel the holding of a court ; and for an infinite num-
ber of other purpofes, which it is impoffible to recite minutely.
But at prefent we are more particularly to remark, that it iifues
to the judges of any inferior court, commanding them to do juf-
tice according to the powers of their office, whenever the fame «
is delayed. For it is the pecuhar bufinefs of the court of king's |
bench, to fuperintend all other inferior tribunals, and therein to
inforcethe dueexercifeofthofe judicial or minillerial powers,with
which the crown or legiilature have inverted them: and this, not
only by rellraining their exceffes, but alfo by quickening their neg-

ligence,

f F. N. B, 153, 1J4. 240.

Ch. 7. Wrongs. hi

ligence, and obviating their denial of jufticc. A mandamus may
therefore be had to the courts of the city of London, to enter up
judgment^; to the fpirltual courts to grant an adminiftration,
to fwear a church-warden, and the Hke. This writ is grounded
on a fuggeftion, by the oath of the party injured, of his own
right, and the denial of juftice below: whereupon, in order more
fully to fatisfy the court that there is a probable ground for fuch
interpofition, a rule is made (except in fome general cafes, where
the probable ground is manifeft) direding the party complained
of to fliew caufe why a writ of mandamus Ihould not illue : and,
if he fhews no fufficient caufe, the writ itfelf is ifllied, at firft in
the alternative, either to do thus, or fignify fome reafon to the
contrary; to which a return or anfwer, mull be made at a cer-
tain day. And, if the inferior judge, or other perfon to whom
the writ is directed, retiarns or lignines an infufficient reafon, then
there ilTues in the fecond place a peremptory mandamus, to do the
thinp" abfolutely ; to which no other return will be admitted, but
a certificate of perfect obedience and due execution of the writ.
If the inferior judge or other perfon makes no return, or fails
in his refpecl and obedience, he is punifliable for his contempt
by attachment. But, if he, at the firft, returns a fufficient caufe,
although it fhould be falfe in facf , the court of king's bench will
not try the truth of the fad upon affidavits; but will for the pre-
fent believe him, and proceed no farther on the manda?mts. But
then the party injured may have an action againft him for his
falfe return, and (if found to be falfe by the jury) fliall reco-
ver damages equivalent to the injury fuftained ; together with a
peremptory mandamus to the defendant to do his duty. Thus
much for the injury of neglect or refufal of juftice.

2. The other injury, which is that of encroachment ofju-
rifdiccion, or calling one coram nonjudice, to anfwer in a court
that has no legal cognizance of the caufe, is alfo a grievance, for
which the common law has provided a remedy by the writ of

prohibition,

A PRO-

2 Raym. xr^^

112 Private Book III.

A PROHIBITION is a writ ilTuing properly only out of the
court ot king's bench, being the king's prerogative writ •, but, for
the furtherance of juftice, it may now alfo be had in fome cafes
out of the court of chancery % common pleas', or exchequer '' ;
directed to the judge and parties of a fuit in any inferior court,
commanding them to ceafe from the profecution thereof, upon
a fuggeftion that either the caufe originally, or fome collateral
matter arifmg therein, does not belong to that jurifdic1:ion, but
to the cognizance of fome other court. This writ may iflue ei-
ther to inferior courts of common law; as to the courts of the
counties palatine or principality of Wales, if they hold plea of
land or other matters not lying within their refpeclive franchi-
fes'; to the county-courts or courts-baron, where they attempt
to hold plea of any matter of the value of forty ftiillings'": or it
may be direcled to the courts chriftian, the univerfity courts, the
court of chivalry, or the court of admiralty, where they concern
themfelves with any matter not within their jurifdiclion ; as if
the firftfhould attempt to try the vaHdity of a cuftom pleaded,
or the latter a contract made or to be executed within this king-
dom. Or if, in handling of matters clearly within their cogni-
zance, they tranfgrefs the bounds prefcribed to thern by the laws
of England; as where they require two witneffes to prove the
payment of a legacy, a releafe of tithes", or the like; in fuch
cafes alfo a prohibition will be awarded. For, as the facl of
ligning a releafe, or of adual payment, is not properly a fpi-
ritual queilion, but only allowed to be decided in thofe courts,
becaufe incident or acceflbry to fome original queftion clearly
within their jurifdicliion ; it ought therefore, where the two laws
differ, to be decided not according to the fpiritual, but the tem-
poral law ; elfe the fame queftion might be determined different
ways, according to the court in which the fuit is depending : an
impropriety, which no wife government can or ought to endure,

and

h r p. V/ms. 475. 1 Lord Raym, 1408.

i Hob. ij. m Finch. L, 4^1.

k Palnjcr. 5*3, 11 Cry. Eliz. C6C. Kob. 188.

Ch. 7- Wrongs. i i ^

and which is therefore a ground of prohibition. And, if either the
judge or the party fhall proceed after fuch prohibition, an attach-
ment may be had againii them, to punifh them for the contempt
at the difcretion of the court that awarded it"; and an action
will he againii them, to repair the party injured in damages.

S o long as the idea continued among the clergy, that the ec-
cleliaftical Hate was wholly independent of the civil, great
ftruggles were conftantly maintained between the temporal courts
and the fpiritual, concerning the writ of prohibition and the
proper objects of it ; even from the time of the conflitutions of
Clarendon made in oppofition to the claims of arch-bifliop Beck-
et in 10 Hen. II, to the exhibition of certain articles of com-
plaint to the king by arch-biiliop Bancroft in 3 Jac. I. on be-
half of the ecclefiaftical courts : from which, and from the an-
fwers to them figned by all the judges of Weftminfter-hali %
much may be collected concerning the reafons of granting and
methods of proceeding upon prohibitions. A fliort fummary of
thelatter is as follows. The party aggrieved in the court below
applies to the fuperior court, fetting forth in a fuggeftion upon
record the nature and caufe of his complaint, in being drawn ad
al'iud examen, by a jurifdiction or manner of procefs difallou'ed
by the laws of the kingdom: upon which, if the matter alleged
appears to the court to be fufhcient, the writ of prohibition im-
mediately ilFues; commanding the judge not to hold, and thq;
party not to profecute, the plea. But fometimes the point may
be too nice and doubtful to be decided merely upon a motion:
and then, for the more folemn determination of the queflion,
the party applying for the prohibition is directed by the court to
declare in prohibition; that is, to profecute an action, by filing
a declaration, againfl: the other, upon a fuppoiition, or fiction,
that he has proceeded in the fuit below, notwithftanding the writ
of prohibition. And if, upon demurrer and argument, the court
fhall finally be of opinion, that the matter fuggefted is a good
and fufficient ground of prohibition in point of law, then jucig-
VoL. III. P ment

oF. N. B.40. p i loft. 6oi— Ci?.

1 1 4 Private Book III.

ment with nomlaal damages fhall be given for the party com-
plaining, and the defendant, and alfo the inferior court, ihall be
prohibited from piocceding any farther. On the dther hand, if
the iiiperior court f]>.all think it no competent ground for reftrain-
ing the infeiior jurifdklion, then judgment lliail be given againll
him. who applied for the prohibition in the court above, and a
v,r\t of confullat'wn Ih^ll be awarded ; fo called, becaufe, upon
deliberation and confultation had, the judges find the prohibi-
tion to be ill founded, and therefore by this writ they return the
caui'e to it's original jurifdiction, to be there determined, in the
inferior court. And, even in ordinary cafes, the writ of prohi-
bition is not abfolutely final and conclufive. For though the
ground be a prober one in point of law, for granting the prohi-
bidon, yet, it t\ic fact that gave rife to it be afterwards falnfied
the caufe Ihall be rem^anded to the prior jurifdiclion. If, for in-
ifance, a cuitom be pleaded in the fpiritual court; a prohibition
ought to go, becaufe that court has no authority to try it : but
if the fact or fach a cuilom be brought to a competent trial,
and be there t\)und falfe, a writ of confultation will be granted.
For this purpofe the party prohibited may appear to the prohibi-
tion, and take a declaration, (which muft always purfue the fug-
geflion) and fo plead to iflue upon it : denying the contempt, and
traverling the cuilom upon which theprohibition was grounded :
and:, if that iffuebe found for the defendant, he iliall then have
a \VY\t ot confultation. The writ of confultation may alfo be,
and is fjcquencly, granted by the court without any action
brought; vv^hen, after a prohibition iiTued, upon more mature
coniideration the court are of opinion that the matter fusreefted
is not a good and fufficient ground to flop the proceedings below.
Thus careful nas the law been, in compelling the inferior courts
to do ample and fpeedyjuflice; in preventing them from tranf-
grefhag their duebour.ds; and in allowing them the undifturbed
cognizance of fuch caufes as by right, founded on the ufage of
the kingdom or act of parliament, do properly belong to their
i'.ijilUicfion.

Ch. 8, Wrong

1^5

Chapter the eighth.

Of wrongs, and their P.EMEDIES, respecting
THE RIGHTS OF PERSONS.

r

"'HE foFmer clinpters of lliis part of our commentaries
A. havin^^- been employed in cicfcriblng the fcvcral methods
of rcdrciring private wrongs, either by the m.ere act of the par-
ties, or the mere operation of law; and in treating of the na-
ture and feveral fpecie.s of ccmr's ; together with the cognizance
of wrongs or injuries by private or fpeeial tribunals, and the
public ecclefiallical, military, and maritime jurifciiclions of this
kingdom : I come now to conlider at large, and in a more par-
ticular manner the refpective remedies in the public and general
courts of common law for injuries or private wrongs of any de-
nomination whatfoever, not excluiively appropriated to any of
the former tribunals. And herein I Ihall, firit, deline the feve-
ral injuries cognizable by the courts ot common la^v, with the
refpective remedies applicable to each particular injury: and
fliall, fecondly, defcribe the method of purfuing and obtaining
thefe remedies in the feveral courts.

•

First then, as to the feveral injuries cognizable by tr
of common law, with the refpective remedies applicab*
particular injury. And, in treating of thefe, I ihall ..
conlinemyfelftofuch wrongsasmay becommitte.
tual intercourfe between fubjecl and fubje<^ ;i w^hicn dicki';..
the fountain of juflice is ofiicially bound to redrefg in tht

ii6

Private

Book III.

dinary forms of law : referving fuch injuries or encroachments
as may occur between the crown and the fubject, to be dif-
tinctly confidered hereafter; as the remedy in fuch cafes is gene-
rally of a peculiar and eccentrical nature.

N o w, as all wrong may be confidered as merely a privation of
right, the one natural remedy for every fpecies of wrong is the
being put in poffellion of that right, whereof the party injured is
deprived. This may either be effected by a fpecific delivery or
reftoration of the fubjecl-matter in difpute to the legal owner; \
as when lands or perlbnal chattels are unjuRly withheld or inva-
ded ; or, where that is not a poilible, or atleaft not an adequate
remedy, by making the fufferer a pecuniary fatisfaclion in da-
mages; as in cafe of allault, breach of contnict, &c : to which
damages the party injured has acquired an incomplete or inchoate
right, the inftant he receives the injury''; though fuch right be
not fully afcertained till they are affeffcd by the intervention of
the law. The inftruments v/hereby this remedy is obtained
(which are fometimes confidered in the light of the remedy it-
fclf) arc a diverfity of fuits and actions, which are defined by the
n^irrour ^' to be " the lawful demand of one's right :'* or as Brac-
ton and Fieta exprefs it, in the words of Juftinian% jus pt ofequen-^
di in judicio quod allcui debet ur.

The Romans inrroduced, pretty early, fet forms for aclions
and fuits in their law, after the example of the Greeks ; and
made it a rule, that each injury fhould be redreffed by it's proper
remedy only. " Acliones^ fay the pandecls, compojitaefunt, qui'
" bus infer fe hcvunes dijceptarent^ quas adiones ne populus prout
^■^^vellet irifiitueret, certas foJennefque ejje "cduerunt'^J'^ The forms
of thefe acllons were originally preferred in the books of the pon-
tifical college, as choice and ineftimable fecrets, ti'l one Cneius
Flavius, the fecretary of Appius Claudius, Hole a copy and pub-
liHied them to the people% The concealment was ridiculous :

but

a See book II, ch. ip.
1> c. i. 5 I.
c liijl. 4. 6, /r.

i Ff I. I. i. §. 6.
c Cic. ^n Maraena. §. 11. dt
c. 41.

or,:t. I. I.

Ch. 8. Wrongs. 117

but the eftablifliment of fome ftandard was undoubtedly nccef-
fary, to fix the true ftate of a qucftion of right ; left in a long
and arbitrary procefs it might be fliifted continually and be at
length no longer difcernible. Or, as Cicero exprclles it^, " funt
'■'jura, funt formulae, de omnibus rebus conjlitutae, ne quis aiit m
" genere injurae, aut in rations adionis, err are pofjit, Exprejfae
*' enimfwit ex uniufcujnfque damm, dolore, incommodoy calamitataey
" injuria.^ publicae a praetore formulae, ad quas privata lis accom-
*' modatur^ And in the fame manner our Braclon, fpeaking of
the original writs upon which all our actions are founded, de-
clares them to be fixed and immutable, unlefs by authority of
parli.niient^. And all the modern legiflators of Europe have
found it expedient, from the fame reafons, to fall into the fame or
a (imilar method. With us in England the feveral fuits, or re-
medial inftruments of juflice, are from thefubjecl of them dif-
tinguiilied into three kinds ; 2^QiioiiS perfonal, real 2Lnd mixed.

Personal acllons are fuch whereby a man claims a debt, or
perfonal, duty or damages In lieu thereoi- ; and, likewife, whereby
a man claims a fatisfaclion in damages for fome injury done to his
perfon or property. The forrher are faid to be founded on con-
trads, the latter upon forts or wrongs: and they are the fame
which the civil law calls " adiones in perfonam, quae adverfus eum
*' intenduntur, qui ex contraElu vel delido cbltgatus eft aliquid dare
*' vel ccncedcre^. Of the former nature are all, actions upon debt
or promifes ; of the latter all actions for trefpaffes, nufances,
tffaults, defamatory words, and the like. . ,

Re A L actions, (or, as they are called in the mirror', feodal
actions) which concern real property only, are fuch whereby the
plaintiff, here called the demandant, claims title to have any
lands or tenements, rents, commons, or other hereditaments, in

fee-

f Tn. ^t. Rojcio. §. 8. tenus mutar'i potcrint alfque confenfu et volun-

g Sunt quaedam brevia fonr.ata fupcr ccftis tate eoruin, (/. s- de exccptioiubiii c. 17. §. j.)

lafih'.is dc ciirfu, ct de communi coitjllio tollui h Infl. 4. 6. 15.

regni cipprohdta ct (onccJJ'a, quae qv.idcm nulla- i c. ;. §, 6.

iiS Private Book III.

fee-fimple, fee-tail, or for term of life. By tliefe acJ:ions for-
merly all difputes concerning real eftates were decided : but they
arc now pretty generally laid afidein practice, upon account of
the great nicety required in their management, and the incon^
venient length of their procefs : a much more expeditious me-
thod of trying titles being fmce introduced, by other actions pcr-
fonal and mixed.

Mixed actions are faits partaking of the nature of the other
two, wherein fome real property is demanded, and alfoperfonal
damages for a wrong fuftuined. As for iniiance, an action of
wade: which is brought by him who hath the inheritance, in
remainder or reverfion, againft the tenant for life, who hath
committed wafte therein, to recover not only the land wafted,
which would make it merely a real action ; but alfo treble da-
mages, in purfuance of the ftaaite of GloceRer", which is a
^fr/^w^/ recompence ; and fo both, bv^ing joined together, deno-
minate it a mixed action.

Under thefe three heads may every fpecies of remedy by
fuit or action in the courts of common law be comprized. But
in order effcdually to apply the remedy, it is firft necelTary to
afcertain the complaint. I proceed therefore now to enumerate
the feveral kinds, and to enquire into the relpective natures, of
all private wrongs, or civil injuries, which may be offered to the
rights of either a man's perfon or his property; recounting at
the fame time the refpective remedies, which are furniflied by
the law for every infraction of right. But I muft firfl beg leave
to premife, that all civil injuries are of two kinds, the one with-
(tut force or violence, as flander or breach of contract ; the other
coupled 'with force and violence, as batteries, or falfe imprifon-
mcnt^ Which latter fpecies favour fomething of the criminal
kind, being always attended with fome violation of the peace?
for which in ftrictnefs of law a line ought to be paid to the king,

as

k 6 EJw. I. c. 5. 1 Finch. L. 184-

Ch. 8. Wrongs. 119

as well as private fatisfaclion to the, party Injured'". And this
diillnction of private wrongs, into injuries with and without force,
we ihall find to run through all the variety of which wc are now
to treat. In coniidering of which, I fliall follow the fame me-
thod, that was purfued with regard to the dillribution of rights :
for as thefe aro nothing ellc but an infringement or breach of
thofe rights, which we have before hud down and explained, it
will follow that this negative fyftem, of wrongs^ muft corref-
pond and tally with the former pofitive fyftem, of rights. As
therefore we divided" all rights into thofe of perfons, and thofe
of things, fo we mud make the fame general diftribution of in-
juries into fuch as affed the rights of ferfons^ and fuch as affect
the rights df property.

The rights of perfons, we may remember, were diftributed
Into ahfohite and relative: abfoiute, which were fuch as apper-
tained and belonged to private men, confidered merely as indi-
viduals, or (ingle perfons ; and relative, which were incident to
them as members of fociety, and connected to each other by va-
rious ties and relations. i\nd the abfolvite rights of each indivi-
dual were defined to be the right of perfonal fecurity, the right
of perfonal liberty, and the right of private property : fo that
the wrongs or injuries affeOing them mull confequently be of a
correfpondent nature.

I. A s to Injuries which affecl the perfonal fecurity of indivi-
duals, they are either injuries againft their lives, their limbs,
their bodies, their health, or their reputations.

I. With regard to the firfl fubdivifion, or Injuries affecling
the Hfe of man, they do not fal? under our prefent contempla-
tion; being one of the moft atrocious fpecies of crimes, the
fubject of the next book of our commentaries.

2, 3. The

m Finch. L. 198. Jenk. Cent. 185. n See book I. ch. i.

1 20 Private Book III.

2, 3» T II E two next fpecies of injuries, affecling the limbs
or bodies of individuals, I fhall coiiiider in one and the f^me
view. And thefe may be committed, i. By threats and menaces
of bodily hurt, through fear of which a man's bufinefs is inter-
rupted. A menace alone, without a confequent inconvenience,
makes not the injury ; but, to complete the wrong, there mud be
both of- them together". The remedy for this is in pecuniary da-
mages, to be recovered by action of trefpafs vi et arm'is ", this be-
ing an inchoate, though not an abfolute, violence. 2. By ajfault ;
■which is an attempt or offer to beat another, without touching
him: as if one lifts up his cane, or his lift, in a threatning m.an-
ner at another; or ftrikes at him, but miffes him ; this is an aflault
infultus, which Finch*' defcribes to be " an unlawful fetting up-
'* on one's perfon." This alfo is an inchoate violence, amounting
confiderably higher than bare threats; and therefore, though no
aCtual fuffering is proved, yet the party injured may have redrefs
by a^lion of trefpafs vi et armis ; wherein he fliall recover damages
as a compenfation for the injury. 3. By battery; which is the un-
lawful beating of another. The leaft touching ^another's perfon
wilfully, or in anger, is a battery; for the kiw cannot draw the
line betv/een different degrees of violence, and therefore totally
prohibits the firfl and loweft ftage of it: every man's perfon
being facred, and no other having a right to meddle with it, in
any the Tiighteft manner. And therefore upon a limilar principle
the Cornelian law de injur'iis prohibited puifation as well as ver-
beration; diftinguifhing verberation, wdiich was accompanied with
pain, from puifation which was attended with none^ But bat-
tery is, in fome cafes, juftiiiable or lawful ; as where one who
^hath authority, a parent or mafter, gives moderate correclion to
his child, his fcholar, or his apprentice. So alfo on the principle
of felf-defence : for if one flrikes me firft, or even only afl'aults
me, I may ftrike in my own defence ; and if fucd for it, may
plead foil afjliull demefie, or that it was the plaintiff's own ori-
ginal

o Finch. L. joi. q Finch. L. soj.

p Regiltr. ic>4. 17 /Uf. 11. 7 Edvi, IV. 54. r Ff. 47. lo.- j.

Ch. 8. Wrongs. i 2 1

ginal aflault that occalioned it. So likewife in defence of my
goods or poireiTion, if a man endeavours to deprive mc of them,
I may juiHfy laying hands upon him to prevent him ; and in cafe
he perlith witli violence, I may proceed to beat him away ^ I'hus
too in the exerc^fe of an office, as that of church- warden or bea-
dle, a man may lay hands upon another to turn him out of church,
and prevent his diilurbing the congregation'. And, if fued for
this or the like battery, he may fet forth j;he whole cafe, and plead
that he laid hands upon him gcnt]y, nwl/ifer maniis hnpnfuit, for
this purpofe. On account of thefe caufes of juftification, bat^eiy
is defined to be the unlawful beating of another; for which the
remedy is, as for aflault, by aclion of treftafs vi et arm'is : wherein
the jury will give adequate damages. 4. By wounding ; which
confifh in giving another fome dangerous hurt, and is only an ag-
gravated fpecies of battery. 5. By mayhem-, which is an injury
Hill more atrocious, and confilh in violently depriving another of
the ufe of a member proper for his defence in fight. Thih b. a
battery, attended with this aggravating clrcumii:ance,that thereby
the party injured is foi ever difibled from making fo good a de-
fence againil future external injuries, as he otherv-ife might have
done. Among thefe detenlive members are reckoned not only
arms and legs, but a finger, an eye, and a fore-tooth', and alio
fome others". But the lofs of one of the jaw-teeth, the ear, or
the nofe, is no mayhem at commom law; as they can be of no
ufe in fighting. The fame remedial aftion of trepafs ^u et amiis
lies alio to recover damages for this injury ; an injury, which
(when wilful) no motive can juftify, but neceffary felf-prefeiva-
tion. If the ear be cut off, treble damages is given by ffatute
37 Hen. VIII. c. 6. though this is not mayhem at common la^v.
And here I muftobferve, that for thefe four laft injuiies, alTault,
battery, wounding,and mayhem, an indictment may be brought as
well as an action ; and frequently both are accordingly profecuted
the one at the fuit of the crown for the crime againll the public;
Vol. III. Q. the

r I Finch. L. 153. t Finch. L. 104.

s I Sid. joi. « iHawk. P. C. ni.

122

P

R I V A T E

Book III.

the other at the fuit of the party injured, to make him a repara-
tion in damages.

4. Injurie s, affecliinga man's healthy are where by any un-
\vholf6me praclices of another a man fuftains any apparent
damage in his vigom' or conftitution- As by felHng him bad pro-
vifions or wine '"^ ; by the exercife of a noifome .trade, which
infects the air in his neighbourhood'; or by the neglect or un-
Ikilful management of his phyfician, furgeon, or apothecary.
For it hath been folemnly refolvcd^, that mala praxis is a great
mifdemefnor and offence at common law, whether it be for cu-
riolity and experiment, or by neglect; becaufe it breaks the
truft which the party had placed in his phylician, and tends to
the patient's deftruclion. Thus alfo, in the civil law"', negled:
or want of ikill in phyiicians and furgeons " culpae adnumeran-
*-^ tiir \ velut'i fi med'icus ciirationem dereliqiierit^ male quempiamfe- ,
" Client^ aut perperam e'l medicamentum dederit.''* Thefe are wrongs
or injuries unaccompanied by force, for which there is a remedy
in damages by a fpecial adion of trejpafs^ vpon the cafe. This
aclion, of trefpafs^ or tranfgreffion, on the cafe, is an univerfal
remedy, given for all perfonal wrongs and injuries without force; ^
fo called, becaufe the plaintiff's whole cafe or caufe of complaint
is fet forth at length in the original writ^. For though in gene-
ral there are methods prefcribed and forms of action previoufly
fettled, for redrcfrmg thofe wrongs which moft ufually occur,
and in which the very act itfelf is immediately prejudicial or in-
i'.irious to the plaintiff's pcrfon or property, as battery, non-pay-
ment of debts, detaining one's goods, or the like; yet where

any

w I Roll. Abr. 50.

X 9 Rep. S7' Uutt. 13s.

y Lord Raym. 114.

z Infi. 4. 3. 6 6- 7.

a For example: " E.ex v'tcecomlti falutem.
♦' St a fecertt te fecurum dc clamore fao pr'^Jt-
*' guci!i!o,tunc pone per vadium etfahos pU-
" Ytos B, quod fit coram juftitiarih noftrh apiid
*• iVcHrnonaflerhim in oBahis faiiBl Mkhaelis,
*' ojlcnfurus quarc cum Uem 3 a^dealrvm ecit-

" Iitm ipftas A cafua'itcr larftim bene et compe-
" tenter ciiratidum aptidS. pro qtiadani pecuniae
" fimjua prae vianibusfoliita cjjiiinpfijfct, idcin
•• B curam ftiam circa ocuhm praedi3uni ton
" negVteenter et improvide appcfuis, gwd idem
" A defect u ipftus B vifum occuH praedidi tota-
" liter amifit, ad damnum ipfttis A vigmti li-
" brarttm, tit dicit. Et habeas iVt nomiiia ple-
" gicrtim et hoc breve. Tefte mcipfo apud Weft-
_•' monajlcriutn ire," (Re^ijir, Brev. los-J

CIi. 8. Wrongs. ^ ^-3

any fpeclal confeqiicntial damage arifes which could not be fore-
feen and provided for in the ordinary coiiri'e of jiiflice, th:j party
injured is allowed, both by common law and the fiatute of
Weftni. 2. c. 24. to bring a fpccial aclion on his own cafe, by a
writ formed according to the peculiar circumitanccs of his own
particular grievance''. For wherever the common law gi,vcs ;i
right or prohibits an injury, it alfo gives a rem.edy by aclion'^ ;
and therefore, wherever a new injury is done, anew method of
remedy mull be purfued'^. And it is a fettled diilinci:ion% that
where an act is done which is in itfelf an immediate injury to an-
other's perfon or property, there the remedy is ufually by an auc-
tion of trefpafs vi et arm'is : but where there is no act done, but
only a culpable omiilion ; or where the acl is not immediately
injurious, but only by confequence and collaterally ; there no aclicu
of trefpafs vi et armis will lie, but an action on the fpecial cafe,
for the damages confequcnt on fuch omiilion or act.

5. Lastly; injuries aifecling a man's reputation or good
name are, firft, by malicious, fcandalous, and iianderous words,
tending to his damage and derogation. As if a man. malicioufly
and falfely, utter any fiander or falfe tale of another : wliich
may either endanger him in lav/, by impeaching him of ibme
heinous crime, as to fay that a man hath poifoned another, or is
perjured^; or which may exclude him from fociety, as to charge
him with having an infectious difeafe ; or which may impair or
hurt his trade or livelyhood, as to call a tradefnian a bankrupt,,
a phyfician a quack, or a lawyer a knave^ Words fpoken in
derogation of a peer, a judge, or other great, oiiiccr of the
realm, which are Q2X\cdi fcandalum magnafttm^ are held to be ftill
more heinous''; and, though they be fuch as v/ould not be ac-
tionable in the cafe of a common perfon, yet when fpoken in
difgrace of fuch high and refpectable characlers, they amount to

Qj. an.

b See pag. 51. (Sjj.

c I Salk. io. 6 Mod. 54. f Finch. L. 185.

J Cro. Jac. 478. ■ g IhlcL iSd.

<; u Mod, 180. Lord Raym, 140* Etr?, li i Veritv. <55.

124 Private Book IIL n

an atrocious injury : which is redrefied by an action on the cafe
founded on many antient ftatutes' ; as well on behalf of the
crown, to inilici the punifliment of imprifonment on the ilan-
derer, as on behalf of the party, to recover damages for the in-
jury fuftained. Words alio tending to fcandaiize a magiftrate, or
pcrfon in a public truft, are reputed more highly injurious than
when fpoken of a private man''. It is faid, that formerly no ac-
tioris were brought for wordsj unlefs the flander was fuch, as (if
true) would endanger the life of the object of it'. But, too great
encouragement being given by this lenity to falfe and malicious
ilanderers, it is now held that for fcandalous words of the feve-
ral fpecics before-mentioned, that may endanger a man in law,
may exclude him from fociety, may impair his trade, or may
alfecl a peer of the realm, a magiftrate, or one in public truft,
an action on the cafe may be had, without proving any particu-
JLir dam.age to have happened, but merely upon the probability
that it might happen. But with regard to words that do not
thus apparently, and upon the face of them, import fuch defa-
mation as vvdll of courfc be injurious, it is ncceffary that the
plaintiff fhould aver fonie particular damage to have happened j
which is called laying his action with a per quod. As if I fay
that inch a clergyman is a baftard, he cannot for this bring any
action againil me, unlefs he can fliew Ibme fpecial lofs by it ;
\w wliich cafe he may bring his action againll me, for faying he
was a baftard./J^r quod he loft the prefentation to fuch a living".
In like manner to llander another aian's title, by fpreading fuch
iakii'ious reports as, if true, would deprive him of his eftate (as
to call the iffue in tail, or one who hath land by defcent, abaftard)
is adionable,- provided any fpecial damage accrues to the pro-
prietor thereby ; as' if he iofes an opportunity of felling the land".
But mere fcurrility, or opprobrious words.which neither in them-
fclvcs import, nor are in fact attended with, any injurious effects,
will not fupport an adion. So fcandals, which concern matters

mereljr

i Wcftm. I. 3 r,J'.v. I. c. 34. 1 Ric. II. 1 1 Vent. 18.

.5. II Ric. n. c. II. n^ 4 Rep- i7- ' lev. 148,

k Loi-a Raym. 1369. * Cro. Jar. 113. Cve. iliz. ii^y.

Ch. 8. Wrongs. 125

merely fpirkual, as to call a man heretic or adulterer, are cogni-
zable only in the eccleliaftical court" ; unlefs any temporal
damaj^e eniues, which may be a foundation for a -per quod.
Words of heat and paffion, as to call a man rogue and rafcal, if
productive of no ill confequence, and not of any of the dange-
rous fpecies before-mentioned, are not actionable j neither arc
words fpoken in a friendly manner, as by way of advice, admo-
nition, or concern, without any tinclure or circumftancc of ill
will : for, in both thefe cafes, they are not malicioufly fpoken,
which is part of the definition of flandcr^ Neither (as was
formerly hinted'') are any refleding words made ufe of in legal
proceedings, and pertinent to the caufe in hand, a fuflicient caufc
of adion for flande^^ Alfo if the defendant be able to juftify,
and prove die words to be true, no action will lie *, even though
fpecial damage hath enfued : for then it is no flander or falfe tale.
As if 1 can prove the tradefman a bankrupt, the phyfician a
quack, the lawyer a knave, and the divine a heretic, this will
dellroy their refpeclive actions: for though there may be damage
fufficient accruing from it, yet, if the fact be true, it is damnum
abfque injuria ', and where there is no injury, the law gives no
remedy. And this is agreeable to the reafoning of the civil law^:
*' eii?n, qui nocentem infamat^ non eft aequiim et honum oh earn rem con-
" demnari ; delicla enim nocentium not a ejfe oportet et expedite*

A SECOND way of affecting a man's reputation Is by-
printed or written libels, pictures, ligns, and the like ; which
fet him in an odious or ridiculous " hght, and thereby dimi-
niili his reputation. With regard to libels in general, there are,
as in m.any other cafes, two remedies ; one by indictment and
another by action. The former for the public offence ; for
every libel has a tendency to break the peace, or provoke others
to break it j which offence is the fame whether the matter con-
tained

o Noy. C4. I Fifem. 177. r Dyer. 185. Cro. Jac. 50.

p Finch. L. I'id. i Lev. «*. Cro. J»c. s 4 Rep. 13.

>i. t Tf. 47. 10. 18.

\ pa£. 19. M i Show. 314. II Mod. 55.

126 ' Private Book III.

tainedbe true or falfej and therefore the defendant, on an in-
diclinent for publifliing a iibei, is not allowed to allege the truth
of it by way of jiiflification'*. But in the remedy by aclion on
the cafe, which is to repair thC/'^r/)' in damages for the injury
done him, the defendant may, as for words /^oi^;^, juftify the
the truth of the fads, and ihew that the plaintifl' has received no
injury at air. What was faid with regard to words fpoken, will
alfo hold in every particular with regard to libels by writing or
printing, and the civil actions confequent thereupon : but as to
figns or pictures, it feems neceffary always to fhew, by proper
innitendd's and averments of the defendant's meaning, the import
and application of the fcandal, and that fome fpecial damage has^
followed; otherwife it cannot appear, that fuch libel by picture
■was underftood to be ievelied at the plaintiff, or that it j,was at.
tended v/ith any actionable confequences,

A THIRD way of dedroying or injuring a man^s reputation
is, by preferring malicious indictments or profecutions againil
him ; which, under the mafk. of juftice and public fpirit, are
fometimes made the engines of private fpite and enmity. For
this however the law has given a very adequate remedy in damages
either by an action of con/piracy', which cannot be brought
but againfl two at the leaft ; or, which is the more ufual w^ay,
by a fpecial action on the cafe for a falfe and m.alicious profecu-
tion'*. In order to carry on the former, (which gives a recom-
penfe for the danger to which the party has been expofed) it is
necelTary that the plaintiff fhould obtain a copy of the record of
his indidment and aquittal ; but, in profecutions for felony, it
is ufual to deny a copy of the indictment, where there is any,
the Icaft, probable caufe to found fuch profecution upon\ For
it would be a very great difcouragement to the public juftice of
the kingdom, if profecutors, who had a tolerable ground offuf-
picion, were liable to be fuedatlaw whenever their indictments

mifcarried,

w S Rep. IIS. ^ ^- N- ^ ""5.

X II Mod, pp. a Garth. 411. Lord Raym. 253.

y Finch. L. 3©$.

Ch. 8. W R O N G S. . 127

miicarricd. But an action for a malicious profecution may be
founded on fuch an indictment whereon no acquittal can be ; as
if it be rejected by the grand jury, or be coram non judice^ or be
infufiicicntly drawn. For it is not the danger of the plaintiff,
but the fcandal, vexation, and expenfe, upon which this action
is founded''. However, any probable caufe for preferring it is
fuilicient to juftify the defendant.

11. We are next to confider the violation of the right of
perfonal liberty. This is effected by the injury of falfe impri-
fonment, for which the law has not only decreed a punilhment,
as a heinous public crime, but has alfo given a private reparation
to the party ; as well by removing the actual confinement for
the prefent, as, after it is over, by fubjetting the wrongdoer to
a civil action, on account of the damage fuftained by the lofs of
time and liberty.

T o conilitute the injury of falfe imprifonment there are two
points requifite: i. The detention of the perfon; and, 2. The
unlawfulnefs offach detention. Every confinement of the per-
fon is an imprifonment, whether it be in a common prifon, or
in a private houfe, or in the flocks, or even by forcibly detain-
ing one in the public ftreets''. Unlawful, or falfe, imprifonment
confilis in fuch confinement or detention without fufficient au-
thority : which authority may arife eitherfrom fome procefs from
the courts of jultice ; or from fome warrant from a legal oiKcer
having power to commit, under his hand and feal, and exprefling
the caufe of fuch commitment'' ; or from fome other fpecial
caufe warranted, for the neceility of the thing, either by com-
mon law, or act of parliament ; fuch as the arrefting of a felon
by a private perlbn without warrant, the impreffmg of mariners
for the public fervice, or the apprehending of waggoners for
miibehaviour in the public highv/ays% Falfe imprifonment alfo
may arife by executing a lawful warrant or procefs^at an unlaw-
ful

k 10 Mod. zip. Stra. 5pi. d foU. 4<J.

c a Init, J89. c Stat. ^ Geo. III. c. 4*.

128 Private Book III.

ful time, as on afiinday''; or in a place privileged from arrefts,
as in the verge of the king's court. This is the injury. Let us
next fee the remedy : which is of two forts j the one retnovlng
the injury, the other making fatisfadion for it.

The means of remo'ving the aclual injury of falfe imprifon-
ment, are fourfold, i. ^y wv'itoi mainprize. 2. ^y writ de edii
et atia, 3. By writ de homine replegiando. 4. By writ oi habeas
' . torpus.

Jtcum)*^l^UJ !• The writ of mainprize, manucaptw, is a writ dire^ied to
the fheriff, (either generally, when any man is imprifoned for a
bailable offence, and bail hath been refufed ; or fpecially, when

j the offence or caufe of commitment is not properly bailable be-

low) commanding him to take fureties for the prifoner's appear-
ance, ufually called mainpernors^ and to fet him at large ^. Main-
pernors differ from bail, in that a man's bail may imprifon or
furrender him up before the flipijlated day of appearance; main-
pernors can do neither, but are barely fureties for his appear-
ance at the day: bail are only fureties, that the party be an-
fwerable for the fpecial matter for which they flipulate ; main-

I pernors are bound to produce him to anfwer all charges what-

foever ''.

(i qJ[Ia^[I^ 2. T h e writ de odio et atia was anticntly ufed to be directed

to the flieriff, commanding him to enquire whether a prifoner

charged with murder was committed uponjufl caufe of fufpi-

, cion, or merely propter adiwn et atiam, for hatred and ill-will j

' , and, if upon the inquifition due caufe of fufpicion did not appear,

then there iffued another writ for the fherifF to admit him to

bail. This writ, according to Braciion ', ought not to be denied

to any man ; it being exprefsly ordered to be made out gratis^

without any denial, by magna carta, c. 26. andftatute Weftm. 2.

*■ 13 Edw. I.

f Stat, ip Car. II. c. 7. h Co. ihuL ch. 3. 4 Infl. 179.

I F. ^\ B. 250. 1 Hal. P. C. 141. Coks i /. 3. tr. i. :. it.
eu biiil and mainpr, cb. 10.

Ch. 8. 'Wrongs. 129

1^ Edw. I. c. 29. But t]ic {latiite of Glocefler, 6 Edvv. I. c. 9.
rcilrained it in the cafe of killing by mifliuventure or lelf-defencCj
and the ftatute 28 Edw. III. c. 9. aboliihed it in all cafes what-
foevcr: but as the ftatute 42 Edw. Hi. c. i. repealed all ftatutes
then in being, contrary to the great charter, fir Edward Coke is
of opinion " that the writ de olio et atia was thereby revived.

3. T H E writ de homhie replegiando^ lies to replevy a min aiit^e. rumtt/tu/
of prifoo, or out of thecuftody of any private perfon, (in the >'V^^f^^.
fame manner that chattels taken in diftrefs may be replevied, of ^
which in the next chapter) upon giving feciirityto the Iherift
that the man (hall be forthcoming to anfwer any charge againft
him. And, if the perfon be conveyed out of the fherift's ju-
rifdiclion, the fherift may return that he is eloigned, elongatus t,
upon which a procefs iilues (called a capias in withernam) to rm-
prifon the defendant himfeif, without bail or mainprize'^, til!
he produces the party. But this writ is guarded with fo many
exceptions", that it is not an effeftual remedy in numerous in-
ftances, efpecially where the crown is concerned. The incapa-
city therefore of thefe three remedies to give complete relief in
every cafe hath almoft intirely antiquated them, and hath caufed
a general recourfe to be had^ in behsif of perfons aggrieved by
illegal iraprifonment, ta

4. The writ of habeas corpus^ the moft celebrated v/rit in the f}^tsS(^n
Englifti law. Of this there are various kinds made ufe of by the
courts at Weftminfter, for removing prifoners from one court
into another for the more eafy adminiftration of juflice. Such
is the habeas corpus ad refpondenditm^ when a man hath a caufe of
action againft one who is confined by the procefs of fom.e infe-
rior court ; in order to reraove the prifojier, and charge him with

Vol. III. R this

k a Tnft. 43. 55. 311,

\ F. N. B. 66.

m Raym. 474.

n Nifi cactus ejl per /fcciak praea^tHm mf.

I go Private Book III.

this new aclion in the court above". Such is that adjatisfacien-
diim^ when a prifoner hadi had judgment againft him in an ac-
tion, and the plaintiff is defirous to bring him up to fome fupe-
rior court to charge him with procefs of execution''. Such alfo
ViVQt\\o{&adprofequendu?n, tcjlijicaiidiwi, deliberandum^ <b'c ; which-
iffue when it is neceffary to remove a prifoncr, in order to pro.
fecute or bear teftimony in any court, or to be tried in the pro-
per jurifdidion wherein the fad was committed. Such is,laftly,
the common writ ad fac'umdum et recipiendum^ which iffues out
of any ofthecourts of Weilminfter-liall, when a perlon is fued
in feme inferior jurifdl£lion, and is dehrous to remove the adtion
into the fuperior court ; commanding the inferior judges to pro-
duce the body of the defendant, together with the day and caufe
of his caption and detainer (whence the writ is frequently deno-
minated an habeas corpus cum caufa) to do and receive whatfoever
the king's court fhall confider in that behalf. This is a writ
pTantable of common right, without any motion in court'' ; and
It inftantly fuperfedes all proceedings in the court below. But,
in order to prevent the furreptitious difchargc of prifoners, it is
ordered by flatute i & 2 P. & M. c. i 3. that no habeas corpus fhall
iflue to remove any prifoner out of any gaol, unlefs figned by
fome judge of the court out of which it is awarded. And, to
avoid vexatious delays by removal of frivilous caufes, it is enacted
by flatute 21 Jac. I. c. 23. that, where the judge of an inferior
court of record is a barrifler of three years {landing, no caufe
fhall be removed from thence by habeas corpus or other writ, af-
ter ifTue or demurrer deliberately joined : that no caufe, if once
remanded to the inferior court by writ of procedendo^ or other-
wife, iliall ever afterwards be again removed : and that no caufe
iliall be removed at all, if the debt or damages laid in the decla-
ration do not amount to the fum of five pounds. But an expe-
dient' having been found out to elude ^he latter branch of the
flatute, by procuring a nominal plaintiff to bring another adion
for five pounds or upwards, (and then by the courfe of the court

the

o 2 Mod. 198. q 1 Mod. 30(1.

p i Lilly prac. re^- «}. V Bohun infnt. legal. 85. edit. 170".

Ch. 8. Wrongs. 151

the habeas corpus removed both actions together) it is therefore
enacted by llatute 12 Geo. I.e. 29. that the inferior court may
proceed in flich actions as arc under the value of five pounds,
notwithflanding other actions may be brought againft the fame
defendant to a greater amount.

1

But the G:reat and efficacious writ, in all manner of ille<2:al
confinement, is that of habeas corpus ad fubj'iciendum ; directed to
the perfon detaining another, and commanding him to produce
the body of the prifoncr, with the day and caufe of his caption
and detention, ad faciendum, fubj'iciendiun, et recipiendum, to do,
fubmit to, and receive, whatfoever the judge or court awarding
fuch writ fnall confider in that behalf. This is a high preroga-
tive writ, and therefore by the common lawiffuing out of the
court of king's bench not only in term-time, but aifo during the
vacation', by 2. Jiat from the chief juflice or any other of the
judges, and running into all parts of the king's dominions : for
the king is at all times intitled to have an account, why the li-
berty of any of his fubjecls is reftrained", wherever that reftraint
may be inflicled. If it iiTues in vacation, it is ufually returnable
before the judge himfclf who awarded it, and he proceeds by
himfelf thereon"^ ; unlefs the term fhould intervene, and then
it may be returned in court""'. Indeed, if the part^/ were " privi-
leged in the courts of common pleas and exchequer, as being an
officer or fuitor of the court, an habeas corpus ad fubj'iciendum
might alfo have been awarded from thence^': ?and, if the caufe
of imprifonment were palpably illegal, they might have dif-
charged him'' ; but, if he were committed for any criminal mat-
ter, they could only have remanded him, or taken bail for his

R 2 appear-

s St. Trials, viii. 141. the 30th of Novemlier, two days after the

t The pl'iries bjhcas corpus 6.\rtCtcil to expiration of the term.

Berwick in 43 Eliz. (cited 4 Burr. 85^.) u Cro Jac. 543.

\\?ii /cj}e'd die Jovis prox' poji quindcn fan'iii w 4 Burr. 85().

WarUn'i, It appears, by referring to the do- x Ibid. 460. $j^z. Cor,.

minical letter of that year, that this quin- j 3. Inft. i-j. 4 Inih apo. 2 Hal. P. C.

/ienn. (Nov. 15.) happened that year on a 144. 2 Ventr. 21.

faturiay, The thuvfday after was therefore z Vaugh. 155.

122

Private

Book III.

appearance in the coart of king's bench^ ; which occalioned the
comnion pleas to difcountenance fuch applications. It hath alfo
been faid^ and by very refpeclable authorities'", that the hke ha-
beas corpus may ifTue out of the court or chancery in vacation :
but, upon the famous application to lord Nottingham by Jenksj
notwitliilan ding the moft dihgent fearches, no precedent could
be found v/here the chancellor had i/fued fuch a writ in vacation*",
and therefore his lordihip refufed it.

In the court of king's bench it Vv'as, and is flill, necelTary to
apply for it by motion to the court^, as in the cafe of all other
prerogative writs (t^r/zW^gri, prohibition, ??iandamus, &c.) Vv'hich
do net iifne as oi mere courfe, v/ithout fliewing fome probable
caufe why the extraordinary power of the crown is sailed in to
the party's amilance. For, as was argued by lord chief juftice
Vaughan^, " it is granted on motion, becaufe it cannot be had of
' cQurfe ; and there is therefore no yiecejjtty to grant it: for the
court ought to be fatisfied that the party hath a probable caufe
'^ to be delivered." And this feems the more reafonable, becaufe
(when once granted) the perfon to whom it is directed can re-
turn no fatisfaccory excufe for not bringing up the body of the
prifoncr''. So that, if it iffued of mere courfe, without fliewing
to the court or judge fome reafon able ground for awarding it, a
traitoror felon under fentence of death, a foldieror mariner in
the king's fervice, a wife, a child, a relation, or a domeflic,
confined for infanity or other prudential reafons, might obtain a
temporary enlargement by fuing out an habeas corpus^ though fure
to be remanded as foon as brought up to the court. And there-
fore fir Edward Coke, v/hen chief jullice, did not fcruple in
13 jac. I. to deny a habeas corpus to one confined by the court of
admiralty for piracy; there appearing, upon his own fliewing,
fuflicient grounds to confine him^ On the other hand, if a

probable

<4

if.

a Curler, iii. j J 'ii. 1 3.

b 4 inil. i8z. a Hil. P. C. 147.

C Lord. Nott. MSS. Rep. July iC;^.

«i 1 Mod. jofl. I Lev. I.

e Bufliell's cafe, z Jon. 13.

f Cro. Jac. S43-

2 3 Buiar. iy Sec alii) z Roll. Rep. 138.

Ch. 8. Wrongs. 133

probable ground be fliewn, that the party is imprifoned without
juflcaulb'', and therefore hath a right to be deUvered, the writ
of habeas corpus is then a writ of right, which " may not be
" denied, but ought to be granted to every man that is com-
" mitted, or detained in prifon, or otherwife reftrained, though
" it be by the command of the king, the privy council, or any
" other'."

In a former part of thefe commentaries ^ we expatiated at
large on the perfonal liberty of the fubjed. It was fhewn to be
a natural inherent right, which could not be furrendered or for-
feited- unlefs by the commiflion of fome great and atrocious
crime, nor ought to be abridged in any cafe without the fpeciai
permiflion of law. A doctrine co-eval with the firfl rudiments
of the EngliHi conftitution ; and handed down to us from our
Saxon anceftors, notwithftanding all their flruggles with the
Danes, and the violence of the Norman conqueft : afTerted af-
terwards and coniirmed by the conqueror himfelf and his dcf-
ccndants: and though fometimes a little impaired by the fero-
city of the times, and the occaiional defpotifm of jealous or
ufurping princes, yet eflablilhed on the iirmeft baiis by the pro-
vifions oi magna carta .) and a long fucceflion of flatutes enacted
under Edward III. To aficrt an abfolnte exemption from im-
pfifonment in all cafes, is inconilftent with every idea of law and
political fociety ; and in the end would dcflroy all civil liberty,
by rendering it's protection impoflible : but the glory of the
Englifh law confifts in clearly defining the times, the caufes, and
the extent, when, wherefore, and to what degree, the impri-
fonment of the fubject may be lawful. This induces an abfolute
neceflity of expreffing upon every commitment the reafon for
which it is made: that the court upon an habeas corpus may ex-
amine into it's validity ; and according to the circum fiances of
the cafe, may difcharge, admit to bail, or remand the prifoner.

And

h 1 Tnft. (Siiw fc Book I, ch. I.

i C-)m. journ. i Apr. iffiS.

134

Private Book IIL

And yet, e.irly in the reign of Charles I, the court of king's
bench, relying on fome arbitrary precedents (and thofe perhaps
mifunderaood) determined ' that they could not upon an habeas
corpus either bail or deliver a prifoner, though committed with,
out any caufe affigned, in cafe he was commicted by the fpecial
command of the king, or by the lords of the privy council.
This drew on a parHamentary enquiry, and produced the petition
of right, 3 Car. I. vdiich recites this illegal judgment, and enacts
that no freeman hereafter ihall be fo imprifoned or detained. But
when, in the following year, Mr Selden and others were com-
mitted by the lords of the council, in purfuance of his majefty's
Special command, under a general charge of " notable contempts
'' and ftirring up fedition againft the king and government," the
judges delayed for two terms (including alfo the long vacation)
to deliver an opinion how far fuch a charge was bailable. And,
when at length they agreed that it was, they however annexed a
condition of finding fureties for the good behaviour, which ftiil
protra6l:ed their imprifonment ; the chief juftice, lir Nicholas
Hyde, at the fame time declaring", that " if they w^ere again re-
" manded for that caufe, perhaps the court would not afterwards
" grant a habeas corpus, being already made acquainted with the
«^ caiife of the imprifonment." But this was heard with indig-
nation and aftonifliment by every lawyer prefent; according to
MrSelden'sown account of the matter, whofe refentment was not
cooled at the diftance of four and twenty years".

These pitiful evafions gave rife to the ftatute i6 Car. I. c. lo.j
5. 8. w^hereby it was enacled, that if any perfon be committed
by the king himfelf in perfon, or by his privy council, or by anyj

or

1 State Tr. vli. 13?;. •' ferefolus, ujuni omnimoium falam prctiuntia-

m Jhid. 240. " vit (Jut fcmpcrjimilis) \nohis fcrpetuo in pof-

n " Eiiamjudicum tunc pr'imaiius, nift illud " tenim dtnegandum. ^lod, lit odiofijfimum u-

"■ faceremus, refcripti illius fcrcnjis, gu'i liter- " ris prod'igium^Jcientifnibus hie uiiivcrfn cenfi-

" titis perfoiiahs omnimodaezindex Jegititnvieji " turn." {]'indii;,^lar. cla:!f. edit. A<D,i6$i.)

Ch. 8. Wrongs. 135

of the members thereof, he fhall have granted unto him, with-
out any delay upon any pretence whatfoever, a writ of habeas cor-
■pus^ upon demand or motion made to the court of king's bench
or common pleas ; who fhall thereupon, within three court days
after the return is made, examine and determine the legality of
fuch commitment, and do what to juftice fhall appertain, in de-
livering, bailing, or remanding fuch prifoner. Yet flill in the
cafeofjenks, before alluded to°, who in 1676 was committed
by the king in council for a turbulent fpeech at Guildhall", new
fiiifts and devifes were made ufe of to prevent his enlargement
bylaw; the chief juftice (as well as the chancellor) declining to
award a writ oi habeas corpus ad fubjiciendii?nm vacation, though
at laft he thought proper to award the ufual writs ad deliberandum,
&c. whereby the prifoner was difcharged at the Old Bailey.
Other abufes had alfo crept into daily practice, which had in
fome meafure defeated the benefit of this great conftitutional
remedy. The party imprifoning was at liberuy to delay his obe-
dience to the firft writ, and might wait till a fscond and a third,
called an ^/m-f and a.pluries, wereiilhed, before he produced the
party : and many other vexatious fhifts were praclifed to detain
flate-prifoners in cuftody. But whoever will attentively conlider
the Engliih hiftory may obferve, that the flagrant abufe of any
power, by the crown or it's minifters, has always been produc-
tive of a f^ruggle; which either difcovers the exercife of that
power to be contrary to law, or (if legal) reftrains it for the fu-
ture. This was the cafe in the prefent inftance. The oppreiHori
of an obfcure individual gave birth to the famous habeas corpus
act, 31 Car. II. c. 2. which is frequently conndered as another
»;^o-;z^ c^r/^" of the kingdom ; and by confequence has alio in
fubfequent times reduced the method of proceeding on thefe writs
(though not within the reach of that ftatute, butifluing merely
at the common law) to the true ftandard of law and liberty.

The

o pag- T31. 1 See book I. ch. i.

p State Trials, vii. 471.

136

P R I V A T E Book III.

The ftatute itfelf enacls, i . That the writ fiiall be returned and
the prifoner brought upjwidiin a limited time according to thedif-
tance, not exceeding in any cafe twenty days. 2. That fuch writs-
Ihall be indorfed, as granted in purfuance of this acl, and figned
by the perfon awarding them". 3. That on complaint and requeft
in writing by or on behalf of any perfon comn^itted and charged
•with any crime (unlefs committed for treafon or felony expref-
fed in the warrant, or for fufpicion 6f the fame, or as acceffory
thereto before the fact, or convicted or charged in execution by
legal procefs) the lord chancellor or any of the twelve judges,
in vacation, upon viewing a copy of the warrant, or affidavit that
a copy is denied, fhall (unlefs the party has neglected for two
terms to apply to any court for his enlagement) award a habeas
corpus for fuch prifoner, returnable immediately before himfelf
or any other of the judges ; and upon the return made fhall diC
charge the party, if bailable, upon giving fecurity to appear and
anfwer to the accufation in the proper court of judicature. 4. That
officers and keepers neglecling to make due returns, or not de-
livering to the prifoner or his agent within fix hours after de-
mand a copy of the warrant of commitment, or fhifting the
cuflody of a prifoner from one to another, without fufficient
reafon or authority (fpecified in the act) fhall for the firfl offence
forfeit 1 00/. and for the fecond offence 200/. to the party grieved,
and be difabled to hold his office. 5. That no perfon, once de-
livered by habeas, corpus, fhall be recommitted for the fame of-'
fence, on penalty of 500/. 6. That every perfon committed for
treafon or felony Ihall, if he requires it the firft week of the next
term or the firft day of the next feffion of oyer and terminer, be
indicted in that term or feffion, or elfe admitted to bail ; unlefs
the king's v/itneffes cannot be produced at that time: and if ac-
quitted, or if not indicated and tried in the fecond term or fef-
fion, he fliall be difcharged from his imprifonment for fuch
imputed offence : but that no perfon, after the affifes iiiall be

opened

r Thefc two claufts fccm t« b« tranfpofcJ, and fi;ouU prqperly be placccl after tke
following provifioBS.

Ch. 8. Wrongs. 137

opened for the county in which he is detained, fliall be removed
by habeas corpus^ till after the aflifes are ended ; but lliall be left
to the jufticeof thejudges of alllfe. 7. Tl^at any fuch prifoner
may move for and obtain his habeas corpus^ as well out of the
chancery or exchequer, as out of the king's bench or common
pleas ; and the lord chancellor or judges denying the fame, on
fight of the warrant or oath that the flime is refufed, forfeit fe-
verally to the party grieved the fum of 500/. 8. That tliis writ
of habeas corpus fhall run into the counties pahtinc, cinque ports,
and other privileged places, and the iilands of Jerfey and Gucrn-
fey. 9. That no inhabitant of England, (except perfons con-
tracting, or convicts praying, to be tranfported ; or having com-
mitted fome capital offence in the place to which they are fent)
fliall be fent prifoner to Scotland, Ireland, Jerfey, Guernfey, or
any places beyond the feas, within or without the king's domi-
nions : on pain that the party committing, his advifers, aiders,
and afliftants, fliall forfeit to the party grieved a fum not lefs than
500/. to be recovered with treble coils ; fliall be difabled to bear
any office of trufl or profit ; fliall incur the penalties of fraemu-
mre ; and fliall be incapable of the king's pardon.

This is the fubftance of that great and important flatute :
which extends (we may obferve) only to the cafe of commitments
for fuch criminal charge, as can produce no inconvenience to pub-
lic juflice by a temporary enlargement of the prifoner : all other
cafes of unjuft imprifonment being left to the habeas corpus at
common law. But even upon writs at the common law it is now
expedled by the court, agreeable to antient precedents * and the
fpirit of the a£t of parliament, that the writ fhould beimmediately
obeyed, without waitingfor any ^^/zi^j-or^/m^j-; otherwifean attach-
ment w'ill iffue. By which admirable regulations, judicial as well
as parliamentary, the remedy is now complete for removing the
injury of unjuft and illegal confinement. A remedy thernor^
neceflary, becaufe the oppreffion does not always arife from the
ill-nature, butfometimes from the mere inattention, of govern-
Vol. III. S menta

$ 4 Burr. 855,

138 Private Book III.

ment. For It frequently happens in foreign countries, (and has
happened in England during temporary fufpenlions' of the fta-
tute) that perfons apprehended upon fufpicion have fuffered a
long imprifonment, merely becaufe they were forgotten.

The fathfadory remedy for this injury of falfe imprifonment,
IS by an aclion of trefpafs, vi et armis, ufually called an action
of falfe imprifonment ; which is generally, and almoft unavoid-
ably, accompanied with a charge of affault and battery alfo: and
therein the party fhall recover damages for the injury he has re-
ceived ; and alfo tjj^e defendant is, as for all other injuries com-
mitted v/ith force, or vi et armis, liable to pay a fine to the king
for the violation of the public peace.

III. With regard to the third abfolute right of individuals,
or that of private property, though the enjoyment of it, when
acquired, is ftriftly a perfonal right ; yet as it's nature and ori-
ginal, and the means of it's acquifition or lofs, fell more diredly
under our fecond general divifion, of the rights of things', and
as, of courfe, the wrongs that affefl thefe rights mull be refer-
red to the correfponding divifion in the prefent book of our com-
mentaries; I conceive it will be more commodious and eafy to
confider together, rather than in a feparate view, the injuries that
may be offered to the enjoyment, as well as to the rights, of pro-
perty. And therefore I fhall here conclude the head of injuries
affecting the abfolute rights of individuals. *

W E are next to contemplate thofe which affecl: their relative
rights; orfuchas are incident to perfons confidered as members
Of fociety, and connected to each other by various ties and rela-
tions: and, in particular, fuch injuries as may be done to per-
fons under the four following relations ; hufband and wife, pa-
rent and child, guardian and ward, mafter and fervant.

I. Injuries

^ t See Vol. Ipag. 13^.

/

Ch, 8. Wrong s. l jp

I. Injuries that may be offered to a pcrfon, confidcrcd as j\
Z>^^^/2c/, arc principally three': ^W^^/o/z, or taking av/ay a man's
wife: ^i/j/Z/^ry, or criminal converfation with her; and beating
or otherwife abufmg her. i . As to the firll fort, abdiicl'ion or
taking her away, this may either be by fraud and perfuafion, or
open violence: though the law in both cafes fuppofes force and
conftraint, the wife having no power to confent ; and therefore
gives a remedy by writ of ravijipmenty or action of trefspafs vi et
armis, de uxore rapta et abduda"^. This action lay at the common
law; and thereby the hull)and iliall recover, not the poffeiTion"'
of his wife, but damages for taking her away : and by ftatute
Weftm. I. 3E4\v. I.e. 13. the offender Ihall alfo be imprifoned
two years, and be fined at the pleafure of the king. Both
the king and the hufband may therefore have this action" : and
the huiband is alfo intitled to recover damages in an action on
the cafe againft fuch as perfuade and intice the wife to live
feparate from him without a fufiicient caufe^. The old law was
fo ftrict in this point, that, if one's wife miffed her way upon the
road, it was not lawful for another man to take her into his houfe
unlefs ftie was benighted and in danger of being loft or drowned' :
but a ftranger might carry her behind him on horfcback to mar-
ket, to a juftice of the peace for a warrant againft her huiband,
or to the fpiritual court to fue for a divorce'. 2. Adultery, or
criminal converfation with a man's wife, though it is, as a pub-
lic crime, left by our laws to the coercion of the fpiritual courts ;
yet, confidered as a civil injury, (and furely there can be no
greater) the law gives a fatisfaclion to the huiband for it by an
adion of trefpafs vi^ et armis againft the adulterer, wherein the
damages recovered are ufually very large and exemplary. But
thefe are properly increafed or diminidied by circumftanccs^;
as thera^k and fortune of the plaintiff and defendant ; the rela-

. S 2 tion

u F. N. B. 89. z Bro. Air. t. trefbajs. 113.

w i Inft. 434. a /iw. 107. 440.

X iifd. b hivi o^ iiifi prius. i(J.
y Law of «j;';/in«j.. 74.

140 Private Book III.

tlon or conneclion between them ; the feduclion or otherwife of
the wife, founded on her previous behaviour and charafter ; and
the hufband's obligation by lettlement or otherwife to provide
for tiiofe children, which he cannot but fufpecl to be fpurious.
3. The third injury is that of ^^^/m^ a man's wife or otherwife
illufingher; for which, if it be a common affault, battery, or
imprifonment, the lay/ gives the ufual remedy to recover damages,
by aclion of trefpafs vi et armis, which muft be brought in the
names of the hufband and wife jointly : but if the beating or
other maltreatiiient be very enojmous, fo that thereby the huf-
band is deprived for any time of the company and affiftance
of his wife, the law then gives him -difeparate remedy by an ac-
tion upon the cafe for this iil-ufage, ^fr 5'«fl^^o/z/or/?z^w amifit^ ill
which he ihall recover a fatisf aclion in damaares''.

'O'

II. Injuries that may be offered to a perfon conlidered in
the relation of a parent were likewife of two kinds ; i . Abducllon^
or taking his children away ; and 2. Marrying hh fon and heir
without the father's confent, whereby during the continuance of
the military tenures he loft the value of his marriage. But this
laft injury is now ceafed, together with the right upon which it
■was grounded : for, the father being no longer entitled to the
value of the marriage, the marrying his heir does him no fort of
injury, for which a civil adion will lie. As to the other, of ab-
duction or taking away the children from the father, that is alfo
a matter of doubt whether it be a civil injury, or no ; for, before
the abolition of the tenure in chivalry, it was equally a doubt
whether an accion would lie for taking and carrying away any
other child belides the heir : fome holding jthat it would not,
upon the fuppofition that the only ground or caufe of a6lion was
loiing the value of the heir's marriage ; and others holding that
an action would lie for taking away any of the children, for that
the parent hath an intereft in them all, to provide for their edu-
cation'^. If therefore before the abolition of thefe tenures it was
an injury to the father to take away the reft of his children, as

well

c Cro. Jac. 501. 538. d Cro. Eliz. 770.

Ch. 8. Wrongs. iai

Well as his heir, (as I am Inclined to think it was) it ftill remains
an injury, and is remediable by a writ of ravijhment, or, adion
of trefpajs v'l et armis, de filio, "nel flia, rapto vel abdudo^ ; in
the fame manner as the hufband may have it, on account of the
abduclion of his wife.

III. O F a fimilar nature to the laft Is the relation of guardian
-3iV\.d ivard ', and the like anions mutatis mutandis, as are given to
fathers, the guardian alfo has for recovery of damages, when
his ward is ftolen or ravillied away from him^ And though
guardianfliip in chivalry is now totally aboliflied, which was the
only beneficial kind of guardianfhip to the guardian, yet the
guardian in focage was always^ and is ilill intitled to an action
of ravijhment, if his ward or pupil be taken from him : but
then he muft account to his pupil for the damages which he fo
recovers**. And, as guardian in focage was alfo intitled at com-
mon law to a writ oi right of ward, de cuftodia terrae et baeredis,
in order to recover the poiTeilion and cuflody of the infant', fo
I apprehend that he is flill intitled to fue out this antiquated
writ. But a more fpeedy and fummary method of redrefling all
complaints relative to wards and guardians hath of late obtained,
by an application to the court of chancery ; which Is the fu-
prcme guardian, and has the fuperintendcnt jurifdicllon, of all
the infants in the kingdom. And it is exprefsly provided by
ftatute 12 Car. II. c. 24, that teftamentary guardians may main-
tain an action of ravifhment or trefpafs, for recovery of any of
their wards, and alfo for damages to be applied to the ufe and
benefit of the infants'".

IV. To the relation between mafler 2nd fervanf, and the rights
accruing therefrom, there are two fpecies of injuries incident.
The one is, retainir>g a man's hired fervant before his time is ex-
pired J the other, beating or confining him in fuch a manner

that

c F. N. B, 90. h Hale on F. N. B. 139.

f Ibid 139. i F, N. B. ibid.

g Ibid. k iP, Wms, io3.

\ Private Book IIL

that he is not able to perform his work. As to the firft ; the re-
taining another perfon's fervant during the time he has agreed to
ferve his prefent mafter ; this, as it is an ungentlemanlike, fo it
is alfo an illegal acl. For every mafter has by his contract pur-
chafed for a valuable coniideration the fervice of his domcftics
for a limited lime : the inveighling or hiring his fervant, which
induces a breach of this contract, is therefore an injury to the
mafter j and for that injury the law has given him a remedy by
a fpecial action on the cafe ; and he may alfo have an action
againft the fervant for the non-performance of his agreement'.
But, if the new mafter was not apprized of the former contract,
no adion lies againft hhif^^ unlefs he refufes to reftore the fervant j
upon demand. 1 he other point of injury, is that of beating,'
confining, or difabling a man's fervant, which depends upon the
fame principle as the laft ; viz, the property which the mafter has
by his contract acquired in the labour of the fervant. In this
cafe, befides the remedy of an action of battery or imprifonment,
which the fervant himfelf as an individual may have againft
the agrefTor, the mafter alfo, as a recompence for his imme-
diate lofs, may maintain an aftion of trefpafs, vi et amis ; in
which he muft allege and prove the fpecial damage he has fuf-
tained by the beating of his fervant, per quod fervitium amifit " .•
and then the jury will make him a proportionable pecuniary
fatisfaction. A ftmilar practice to which, we find alfo to have
obtained among the Athenians ; where mafters were entitled to
an aftion againft fuch as beat or ill treated their fervants°.

We may obferve that, in thefe relative injuries, notice is only
taken of the wrong done to the fuperior of the parties related,
by the breach and diffolution of either the relation itfelf, or at
leaft the advantages accruing therefrom ; while the lofs of the
inferior by fuch injuries is totally unregarded. One reafon for
which may be this : that the inferior hath no kind of property
in the company, care, or alliftance of the fuperior, as the fupe-
rior

1 F. N. B. 1(57. n 9 Rep. 113. 10 Rep. 130.

ni JW. Winch. i\. Q Pott. Antk^u. b. i. c, j(3.

Ch. 8. Wrongs. 143

rior is held to have in thofe of the inferior ; and therefore the
inferior can fuffer no lofs or injury. The wife cannot recover
damages for beating her hufband, for flie hath no feparate inte-
reft in any thing during her coverture. The child hath no pro-
perty in his father or guardian; as they have in him, for the
fake of giving him education and nurture. Yet the wife or the'
child, if the hufband or parent be flain, have a peculiar fpecies
of criminal profecution allowed them, in the nature of a civil
fatisfacbion ; which is called an appeal, and which Vv'ill be con-
lidered in the next book. And fo the fervant, whofe mafter is
difabled, does not thereby lofe his maintenance or wages. He
had no property in his mafter ; and, if he receives his part of
the ftipulated contract, he fufFers no injury, and is therefore
intitled to no adion, for any battery or imprifonment which
fuch mafter may happen to endure.

144 Private Book III.

Chapter the ninth.'
Of injuries to PERSONAL PROPERTY,

IN the preceding chapter we confidered the wrongs or Injuries
that affected the rights of perfons, either confidered as indi-
viduals, or as related to each other j and are at prefent to enter
upon the difcuilion of fuch injuries as affed the rights of pro-
perty, together with the remedies which the law has given to
repair orredrefs them.

And here again we muft follow our former divlfion^ of pro-
perty Into perfonal and real : perfo7ial, which conlifts in goods,
money, and all other moveable chattels, and things thereunto
incident; a property, which may attend a man's perfon wherever
he goes, and from thence receives it's denomination : and real
property, which confifts of fuch things as are permanent, fixed
and immoveable; as lands, tenements, and hereditaments of all
kinds, which are not annexed to the perfon, nor can be moved
from the place in which they fubfift.

First then we are to confider the injuries that may be of-
fered to the rights of perfonal property; and, of thefe, firft the
rights of perfonal property in pojejion, and then thofe that are'
in a^iou only '',

I. T H E

a See book II. ch. z, b Hid. ch. ij.

Ch. 9.

Wrongs.

45

I. The rights of perfonal property in pojcfflon are liable to
two fpecies of injuries : the amotion or deprivation of that pof-
feffion ; and the abufe or damage of the chattels, while the
poiTeilion continues In the legal owner. The former, or depri-
vation of pofTelllon, is alfo divifible into two branches ; the un-
juft and unlawful /^zi/^g- them away; and the unjuft detaining
them, though the original takhig might be lawful.

I. And firft of an unlawful taking. The right of property
in all external things being folely acquired by occupancy, as has
been formerly ftated, and preferved and transferred by grants,
deeds, and wills, which are a continuation of that occupancy;
it follows as a neceHIiry confequence, that when I once have gain-
ed a rightful pcflefiion of any goods or chattels, either by a juil:
occupancy or by a legal transfer, whoever either by fraud or
force difpoffeffes me of them is guilty of a tranfgreffion againft
the law ot fociety, which is a kind of fecondary law of nature.
For there muft be an end of all focial commerce between man
and man, unlefs private pofleilioRS be fecured from unjufl inva-
lions: and, if an acquifition of goods by either force or fraud
were allowed to be a fufficient title, all property would foon be
confined to the moil ftrong, or the moft cunning ; and the weak
and fmiple-minded part of mankind (which is by far the moft
numerous divi/ion) could never be fecure of their pofieflions.

The wrongful taking of goods being thus mofl clearly an
injury, the next confideration is, what remedy the law of Eng-
land has given for it. And this is, in the firil place, the reftitu-
tion of the goods themfclves fo wrongfully taken, with damages
for the lofs fuftained by fuch unjuft invafion ; which is effected
by accion oi replevin', an inftitution, which the mirror*^ afcribes
to Glanvil, chief juft ice to king Henry the fecond. This ob-
tains only in one inftance of an unlawful taking, that of a wrong-
YoL. III. T ■ ful

C C. 2. S. (S,

1 46 Private Boo k III.

ful diftrefs; and this and the action of detinue (of which I
Ihall prefenlly fay more) are almoft the only actions, in which the
aduai fpeciBc poffeffion of the identical perfonal chattel is rcfto-
red to the proper owner. For things perfonal are looked upon
by the law as of a nature fo tranfitory and perifhable, that it is
for the mcft part impoflible either to afcertain their identity, or
to reftore them in tiie fame condition as when they came to the
hands of the wrongful poiTelTor. And, fmce it is a maxim that
*' lex neminem cogit ad vana^Jeu tmpoJfibUla,^' it tlierefore contents
itldf in general with reftoring, not the thing itfelf, but a pecu-
niary equivalent to the party injured; by giving him a fatisfac-
tion in damages. But in the cafe of a dijlrefs, the goods are
from the fii il taking in the cuftody of the law, and not merely
in that of the diftreinor ; and therefore they may not only be
identified, but alfo reftored to the firfl polTelTor, without any
material change in their condition. And, being thus in the cuf-
tody of the law, the taking them back by force is looked upon
as an atrocious injury, and denominated a refcous^ for which the
diftreinor has a remedy in damages, either by writ of refcous^,
in cafe they were going to the pound, or by ^Nv'it de farce fraBo^
or pound-breach^ J in cafe they were actually impounded. He
may alfo at his option bring an action on the cafe for this injury :
and Ihall therein, if the diftrefs were taken for rent, recover
treble damages'". The term, refcous, is likewife applied to the
forcible delivery of a defendant, when arrefted, from the ofEcer
who is carrying him to prifon. In which circumftances the plain-
tiff has a fimilar remedy by aclion on the cafe, or oi refcous^:
or, if the fheriff makes a return of fuch refcous to the court out
of which the procefs ifTucd, the refcuer will be punifhed by at-
tachment''.

An

d F. N. B. loi. g 6 Mod. iii.

e Ibtd.'ioo. h Cro. Jac. 41^. Salk. 585.

f Stat. » W. &M. SefT. i.e. 5.

Ch. 9.

Wrongs. 147

A N afllon of replevin, the regular way of contcfting the va-
lidity of the tranfaclion, is founded, I faid, upon a diilrefs taken
wrongfully and without fuflicient caufe: being a re-delivery of
the pledge', or thing taken in diflrefs, to the owner ; upon his
giving fecurity to try the right of the diftrefs, and to rcftore it
if the right be adjudged againft him". And formerly, when the
party diftreined upon intended todifpute the right of the diftrefs,
he had no other procefs by the old common law than by a writ
of replevin, replegiari facias^ ; which ilTued Out of chancery,
commanding the fheriff to deliver the diftrefs to the owner, and
afterwards to do juftice in refpeft of the matter in difputc in his
own county-court. But this being a tedious method of proceed-
ing, the beafts or other goods were long detained from the owner,
to his great lofs and damage™. For which reafon the flatute of
Marlbridge" directs, that (without fuing a writ out of the
chancery) the fheriff, immediately upon complaint to him made,
fliall proceed to replevy the goods. And, for the greater eafe of
the parties, it is farther provided by ftatute i P. & M. c. 12. that
the fheriff fliall make at lead four deputies m each county, for
the fole purpofe of making replevins. Upon application there-
fore, either to the fheriff, or one of his faid deputies, fecurity
is to be given, in purfuance of the flatute of Weilm. 2.13 Edw. L
c. 2. I. That the party replevying will purfu'v hi:; action againfl
the diftreinor, for which purpofe he puts in piegics aeprofcquendoy
or pledges to profecute : and, 2, That if the right be determi-
ned againfl him, he will return the diflrefs agam ; for which
purpofe he is alfo bound to iind plegios de retorno haha-do. Be-
fides thefe pledges, which are merely difcretionary in the fheriff,
the flatute 11 Geo. II. c. 19. requires that the ofHcer, granting a
replevin on a diflrefs for rent, fhall take a bond with two fure-
ties in a fum of double the value of the goods dillreined ; which
bond fhall be affigned to the avowant or perfon making cogni-

T 2 zance^

i See pag. 13. ma Iiift, 139. *

k Co. Litt. 14s. - a li Hen. III. c. ai.

1 F. N. B. ca.

i^S Private Book III.

2ance,on requeft made to the IheiifF; and,ifforfeIted,may be fued
in the name of the affignee. And certainly, as the end of all
diftrefles is only to compel the party diilreined upon tofatisfythe
debt or duty owing from him, this end is as well anfwered by
fuch fufficient fureties as by retaining the very diftrefs, which
might frequently occafion great inconvenience to the owner ;
and that the law never wantonly inflicts. The iherifF, on recei-
ving fuch fecurity, is immediately, by his officers, to caufe the
chattels taken in diftrefs to be reftored into the pofleffion of the
party diftreined upon ; unlefs the diftreinor claims a property in
the goods fo taken. For if, by this method of diftrefs, the dif-
treinor happens to come again into pofleffion of his own property
an goods w^hich before he had loft, the law allows him to keep
^hem, without any reference to the manner by which he thus
lias regained pofleffion: being a kind of perfonalr^wzV/fr". If
therefore the diftreinor claims any fuch property, the party re-
plevying muft fue out a writ de froprietate -prohanday in which
the Iheriff'is to try, by an inqueft, in whom the property pre-
vious to the diftrefs fabflfted^. And if it be found to be in the
diftreinor, the fherift' can proceed no farther ; but muft return
the claim of property to the court of king's bench or common
pleas, to be there farther profecuted, if thought advifable, and
there liaally determined''.

But if no claim of property be puc in, or 'if (upon trial)
the fiierifi's inqueft determines it agaijift the diftreinor ; then the
flieriff" is to replevy the goods (making ufeof even force, if the
diftreinor makes refiftance') in cafe the goods be found within
his county. But if the diftrefs be carried out of the county, or
concealed, then the fiierifl" may return that the goods, or beafts,
are eloigned^ elongata, carried to a diftance, to places to him un-
}cnown: and thereupon the party replevying ihall have a writ of
f a fias in withernam, ov i?ivetitonavuo y a term which iignifies a

fecond

o See pag. 19. q Co. Litt. 14J. finch. L. 4S0,

r Finch. L. ^iC, r a Inlt. ipj.

ch; 9.

W R O -N G S.

49

fecond or 're ip"ocal cUftrcfs% in lieu of the firft which was
eloigned. It is therefore a coinmand to the flieriff to take other
goods of the diftreinor, in lieu of the diftrefs fornierly taken,
and eloigned, or withheld from thcowner^ So that here is now
diftrefs ag.^in ft diftrefs; one being taken to anfwer the other, by-
way of reprifal% and as a punifhment for the illegal behaviour
of the original diftreinor. For which rcafon goods taken in
•withernam cannot be replevied, till the original diftrefs is forth-
coming"'.

But, in common cafes, the goods are delivered back to
the party replevying, who is then bound to bring his adion of
replevin ; which may be profecuted in the county court, be
the diftrefs of what value it may^. But either party may re-
move it to the fuperior courts ; the plaintifi'at plcafure, the de-
fendant upon reafonable caufe^: and alfoifin the courfe of pro-
ceeding any right of freehold comes in queftion, the flieriff can
proceed no farther^ ; fo that it is ufual to carry it up in the iirft
inftance to the courts of Weftminfter-hall. Upon this action
brought, thediftreinor, who is now the defendant, makes avowry ;
that is, he avows taking the diftrefs in his own right, or the right
of his wife' ; and fets forth the reafon of it, as for rent arrere,
damage done, or other caufe: or elfe, if he juftifies in another's
right, as kis bailiff or fcrvant, he is faid to make cognizance ;
that its, he acknowkges the taking, but inftfts that fuch taking
was legal, as he acted by the command of one who had a right

to

s Smith's commonvr.b. 3. c. 10. a Inft. 141.

t F, N. B. 69. 73.

u In the old northern languages the word
•withernam is ufed as equivalent to reprifals.
{^iitxfkhook, dc jure Sitcon. l.'i.c. i&.)

w Rayni, 47$. The jTubftance of this rule
compofcd the ttraas of that famous quefiionj
with which fir Thomas More(wlien a ftudent
on his travels) is faid to have puzzled a
pragmatical profedor in tlie univerfity of
jgruges ia f landers ; who gave a univerfal

challenge to difpute with any perfon in any
fcience : in omni fcibili, et de qiiclibet eiite.
Upon which Mr More fent him this queftion,
' ' utrum averia caracae, capta in vetito namio,
♦• ftnt irreplegibilia ;" whether beafts of the
plough, taken in -witherna/n, are incapable
of being replevied. (Hoddcfd. c. J.)

X a Infl, 139.

y F. N. B. 6g, 70.

z Finch. L. 317.
• a i Saund. 1^5.

150 Private Book III.

to diftreln : and on the truth and legal merits of this avowry or
coo-nizance thecaufe is determined. If it be determined for the
plaintiff; viz. that the diftrefs was wrongfully taken ; he has
already got his goods back into his own poflefiion, and fliali keep
them, and moreover recover damages'". But if the defendant
prevails, and obtains judgment that the diilrefs was legal, theii
he fhall have a writ de retorno habendo^ whereby the goods or
chattels (which were diftreined and then replevied) are returned
a^-ain into his cuftody ; to be fold, or otherwife difpofed of, as
if no replevin had been made. Or, in cafe of rent-arrere, he may
have a writ to enquire into the value of the diftrefs by a jury,
and fliall recover the amount of it in damages, if lefs than the
arrear of rent; or, if more, then fo much as fliall be equal to
fuch arrear : and, if the diftrefs be infufficient, he may take a
farther diftrefs or diftreffes* : but otherwife, if, pending a re-
plevin for a former diftrefs, a man diftreins again for the fame
rent or fervice, then j^lie party is not driven to his a<5lion of re-
plevin, but fliall have a writ of ncapficn'^^ and recover damages
for the defendant's contempt of the procefs of the law.

In like manner, other remedies for other unlawful takings of
a man's goods conftft only in recovering a fatisfaclion in damages.
As if a man take the goods of another out of his aclual or vir.
tual poffeflion, without having a lawful title fo to do, it is an
iniury ; which, though it doth not amount to felony unlefs it be
done an'unofurandi, is neverthelefs a tranfgrefllon, for which an
:iction of tre/pafs v2 et arjiiis w'lW He; wherein the plaintifl" fliall
not recover the thing itfelf, but only damages for the lofs of it.
Or, ifcommitted without force, the party may, at his choice,
have another remedy in damages by a6lion of trover and conver-
fion, of which I fliall prefently fay more. |

2. Deprivation of pofTefTion may alfo be by an unjuft de-
tainer of another's goods, though the original taking was lawful.

As

iff

1,F. N. B. 6j). if. N. B. 7r.

e Stat. 17 Car. II. c. y.

Ch. 9.

Wrongs. 151

As if I diftrein another's cattle damage-fcafant, and he tenders
mc fufllcient amends; now, though the original taking was
lawful, my fubfequent detainment of them after tender of amends
is wrongful, and he fliall have an action of replevin againft me
to recover them'^: in which he fliall recover damages only for
the detention and not for the caption^ becaufe the original taking
was lawful. Or, if I lend a man a horfe, and he afterwards
refufes to reftore it, this injury confiils in the detaining, and
not in the original taking, and the regular method for me to re-
cover poiTeinon is by adion of detime^. In this action, of de-
tinue, it is neceffary to afcertain the thing detained, in fuch man-
ner as that it may be fpeciucally knov/n and recovered. There-
fore it cannot be brought for money, corn or the like: for that
cannot be known from other money or corn, unlefsit be in a bag
or a fack, for then it may be diftinguifliably marked. In order
therefore to ground an aclion of detinue, which is only for the
detaining, thefe points are neceilary^: i. That the defendant
came lawfully by the goods, as either by delivery to him, or
finding them; 2. That the plaintiff have a property; 3. That
the goods themfelves be of Ibme value; and 4. That they be
afcertained in point of identity. But there is one difadvantage
which attends this aclion ; viz. that the defendant is herein per-
mitted to wage his law, that is, to exculpate himfelf by oath"*,
and thereby defeat the plaintiff of his remedy : which privilej^c
is grounded on the confidence originally repofed in the bailee by
the bailor, in the borrower by the lender, and the like • from
whence arofe a ftrong prefumptive evidence, that in the plaintifF*g
own opinion the defendant was worthy of credit. But for this
reafon the aclion itfelf is of late much difufed, and has given
place to the aclion of trover.

Jh-mA^yy— ,

This aclion, of trover and converjion, was in it's original an
nclion of trefpafs upon the cafe, for recovery of damages ao-ainfl <i>^*c^^
fuch perfon as h^d found another's goods, and refufed to deliver

them

c F. N. B. (Tp. g Co. Litt. aStf.

f Ibid. 138. h Ibid. »s5.

152 Private Book III.

them on demand, but cenverted them to his own ufe : from
which finding and converting it is called an adion of trover and
converfion. The freedom of this action from wager of law, and
the lefs degree of certainty requifite in defcribing the goods ', gave
it fo confiderable an advantage over the action of detinue^ that by
a fiction of law actions of trover were at length permitted to be
brought againft any man, who had in his pofleflion by any means
whatfoever the perfonal goods of another, and fold them or ufed
them without the confent of the owner, or refufed to deliver
tjiem v/hen demanded. The injury lies in the converfion : for
any man may take the gpods of another into pofi!efiion, if he
finds them J but no finder is allowed to acquire a property there-
in, unlefs the owner be for ever unknown "": and therefore he
muft not convert them to his own ufe, which the law prefumes
him to do, if he refufes to refl:ore them to the owner ; for which
reafon fuch refufal alone is, prima facie, fufficient evidence of a
converfion'. The fact of the finding, or trover, is therefore now
totally immaterial: for the plaintiff needs only to fu ggeft (as
words of form) that he loft fuch goods, and that the defendant
found them; and, if he proves that the goods are his property
and that the defendant had them in his pofl^efilon, it is fufficient.
But a converfion muft be fully proved : and then in this action
the plaintiff fhall recover damages, equal to the value of the
thing converted, but not the thing itfelf; which nothing will
recover but an action oi detimie or replevin.

A s to the damage that may be oflfered to things perfonal,
while in the pofleflion of the owner, as hunting a man's deer,
Ihooting his dogs, poifoning his cattle, or in any wife taking from
the value of any of his chattels, or making them in a worfe
condition than before, thefe are injuries too obvious to need ex-
plication. I have only therefore to mention the remedies given
by the law toredrefs them, which are in twolhapes: by action
of trefpafs vi et armis, where the a<5t is in itfelf immediately in-
jurious

i Salk. rtj4. 1 10 Rep. 5(7.

k Sec Book. I. c. 8. book II, ch. i, & a5.

Ch. 9.

Wrongs. ijg

jurlous to ariothcr's property, and therefore nccefCirily accompa-
nied with fonie degree of fcnxe ; and by fpecial action on the cafe^
•where the act is in itfelf indifferent, and the injury only confe-
quentlal, and therefore ariling without any breach of the peace.
In both of which fuits the plaintiff fliall recover damages, in pro-
portion to the injury which he proves that his property has fuf-
tained. And it is not material whether the damage be done by
the defendant himfelf, or his fervants by his direclion ; for the
aclion will lie againft the mailer as well as the fervant'''. And,
if a man keeps a dog or other brute animal, ufed to do mifchief,
as by worrying fheep, or the like, the owner muff anfwer for
the confequcnces, if he knowa of fuch evil habit".

II. Hitherto of injuries affecling the right of things per-
fonal, m pofjejjlon. We are next to conlider thofe which regard
thinofs in acl'ion only \ or fuch rights as are founded on, and arife
from contrails ; the nature and feveral divilions of which were
explained in the preceding volume". The violation, or non-per-
formance, of thefe contracts might be extended into as great a
variety of wrongs, as the rights which we then coniidered : but
I fhall now endeavour to reduce them into a narrow compafs,
by here making only a twofold divifion of contracts; viz. con-
tracts exprefs, and contracts implied; and confidering the injuries
that arife from the violation of each, and their refpeclive re-
inedies.

W Express contracts include three diflincl fpecicsj debts, co-
venants, andpromifes.

I. T H E legal acceptation of debt is, a fum of money due by
certain and exprefs agreement. ^ As, by a bond for a determinate
fum; a bill or note; a fpecial bargain; or a rent referved on a
leafe; where the quantity is fixed and unalterable, and does not
depend upon any after-calculation to fettle it. The non-payment
Vol. III. U of

m Noy's Max. c. 44* » See book II. ch. 30.'

a Cro. Car.

154 Private Book III.

of thefe is an injury, for which the proper remedy is by action
oidcbt^, to compel the performance of the contract and recover
the fpecifical fum due"^. This is the ihortell and fureft remedy;
particularly where the debt arifes upon a fpecialty, that is, upon
a deed or inftrument under feal. So alfo, if I verbally agree to pay
a man a certain price for a certain parcel of goods, and fail in
the performance, an aclion of debt lies againll me; for this is
alfo a determinate contT2Lci: but if I agree for no fettled price, I
am not liable to an aftion of debt, but a fpecial aclion on the
cafe, according to the nature of my contract. And indeed ac-
tions of debt are now feldom brought but upon fpecial contracts
under feal: wherein the fum due is clearly and precifely expreff-
ed: for in cafe of fuch an action upon a fimple contradt, the
plaintiff labours under two difficulties. Firft, the defendant has
here the fame advantage as in an action of detinue, that of waging
his hw, or purging himfelf of the debt by oath, if he thinks
proper'. Secondly, in an action of debt the plaintiff muft re-
cover the whole debt he claims, or nothing at all. For the debt
is one fmgie caufe of adion, fixed and determined; and which
therefore, if the proof varies from the claim, cannot be looked
upon as the fame contraci: whereof the performance is fued for.
If therefore I bring an action of debt lor 30/, I am not at li-
berty to prove a debt of 20/, and recover a verdict thereon' ; any
more than if I bring an action of detinue for a horfe, I can
thereby recover an ox. For I fail in the proof of that contract,
which my action or complaint has alleged to be fpecific, exprefs
and determinate. But in an action on the cafe, on what is called
an indebitatus affumpfit, which is not brought to compel a fpecific
performance of the contract, but to recover damages for it's non-
performance, the implied qfumpfif, 2ind confequently the damages
for the breach of it, are in their nature indeterminate ; and will
therefore adapt and proportion themfelves to the truth of the
cafe which ihall be proved, without being confined to the pre-
cife demand ftated in the declaration. For if a?iy debt be proved,

how-

P r. N. R. 119. !■ 4 Rep- 94.

q Sec appciidU, N". III. §. IV s Dyer. iip.

1

Cli. 9. Wrongs. 155

however lefs than the fiim demanded, the hiw will raifc a pi o-
TuKc pro tanto, and the damages will of ci)iirfe be proportioned
to the adnal debt. So that 1 may declare that the defendant,
being indebted to me in 30/, widertook or piomifcd to pay it, but
failed ; and lay my damages ariling from fuch failure at whatfum
I pleafe: and the jury will, according to the nature of my pruof,
allow me either the whole in damages, or any inferior fum.

The form of the writ oi debt is fometimes in the debet and
detinet, and fometimes in the detinet only : that is, the writ
dates, either that the defendant owes and unjuftly detains the debt
orthingin queftion, or only that he \m]\ni\Y detains it. It is
brought in the debet as well as detinet^ when fued by one of the
original contracting parties who perfonally gave the credit, againfl:
the other who perfonally incurred the debt, as by the obligee
againflthe obligor, the landlord againft the tenant, &c. But, if
it be brought by or againft an executor for a debt due to or from
the teftator, this, not being hia own debt, fliall be fued for in
the detinet only\ So alfo if the action be for goods, for corn, or
an horfe, the writ fhall be in the detijiet only ; for nothing but
a fum of money, for which I have perfonally contracted, is pro-
perly confidered as my debt. And indeed a writ of debt in the
detinet only, is neither more nor leL than a mere writ of detinue :
it might therefore perhaps be more eafy (inftead of diftinguifliing
between the debet and detinet, and the deiinei only, in an aclion
of debt) to fay at once that in the one cafe an aclion of debt may
be had, in the other an aclion of detinue,

2. A COVENANT alfo. Contained in a deed, todoa direct
acl or to omit one, is another fpecies of exprefs contracls, the
violation or breach of which is a civil injury. As if a man Co-
venants to be at York by fuch a day, or not to exercife a trade
in a particular place, and is not at York at the time appointed,
or carries on his trade in the place forbidden, thefe are direct
breaches of his covenant ; and may be perhaps greatly to the

U 2 difadvan,-

t F, N. B, I If.

JS6

Private Book III.

difadvantage and lofs of the covenantee. The remedy for this is
by a writ of covenant'' ; which direcls the flieriff to command
the defendant generally to keep his covenant with the plaintiff
(without fpecifying the nature of the covenant) or fliew good
caiife to the contrary: and if he continues refractory, or the
covenant is already fo broken that it cannot now be fpecifically
performed, then the fubfequent proceeding's fct forth with pre-
cifion, the covenant, the breach, and the lofs which has happened
thereby; whereupon the jury will give damages, in proportion
to the injury fuftained by the plaintiff, and occalioned by fuch
breach of the defendant's contract.

Th e r e is one fpecies of covenant, of a different nature from
the reft; and that is a covenant real, to convey or difpofe of
lands, which feems to be partly of a perfonal and pardy ot a
real nature'"'. For this the remedy is by a fpecial writ of cove,
nant, forafpeciiic performance of the contrad, concerninp' cer-
tarn lands particularly defcribed in the writ. It therefore directs
the flieriff to command the defendant, here called the deforciant,
to keep the covenant made between the plaintiff and him con-
cerning the identical lands in queftion : and upon this procefs it
is that lines of land are ufually levied at common law'' ; the
plaintiff, or perfon to whom the fine is levied, bringing a writ of
covenant, in which he fuggells fome agreement to have been
made between him and the deforciant, touching thofe particular
lands, for the completion of which he brings this aclion. And,
for the end of this fuppofed difference, the fine q>v finalis concordia
is made, whereby the deforciant (now called the cognizor) ac-
knowlcges the tenements to be the right of the plaintiff, now
called the cognizee. And moreover, as leafes for years were for-
merly confidered only as contracts'" or covenants for the enjoy-
ment of the rents and profits, and not as the conveyance of any
real interell in the land, the antient remedy for the leffee, if ejed-
ed, was by writ of covenant againff the leffor, to recover the term

(if

XI F. N. B. 14J. ' X See book II. ch. ii.

VI' JLsl. on f . N. J3. r4«. • y Ibid. ch. <?.

Ch. 9:

Wrongs. 157

(If in being) and damages,'in cafe the oufter was committed by the
leflbr himVc U 5 or, if the term was expired, or the oufter was
committed by a ilranger, then to recover damages only\

3. A PROMISE is in the nature of a verbal covenant, and
wants nothing but the folemnity of writing and fealing to make
it abfolutely the fame. If therefore it be to do any explicit acir,
it is an exprefs contracl, as much as any covenant ; and the
breach of it is an equal injury. The remedy indeed is not ex-
actly the fame : iince, inftead of an action of covenant, there
only lies an adion upon the cafe, for what is called the ajfumpfit
or undertaking of the defendant ; the faiiure of performing which
is the wrong or injury doue to the plaintiff, the damages where-
of a jury are to eftimate and fettle. As if a builder promifes,
undertakes, or aifumes to Caius that he will build and cover
his houfe within a timehmited, and fails to do it; Caius lias an
adion on the cafe againft the builder, for this breach of his ex-
prefs promife, undertaking, or ajfumpfit ; and fhall recover a pe-
cuniary jQitisfaclion for the injury fuftained by fuch delay. So
alfo in the cafe before-mentioned, of a debt by limple contract,
if the debtor promifes to pay it and does not, this breach of
promife entitles the creditor to his action on the cafe, inftead of
being driven to an action of debt. Thus likewife a promilfory
note, or note of hand not under feal, to pay money at a day
certain, is an exprefs affumpfit ; and the payee at common law,
or by cuftom and act of parliament the indorfee^, may recover
the value of the note in damages, if it remains unpaid. Some
agreements indeed, though never fo exprefsly made, are deemed
of fo important a nature, that they ought not to reft in verbal
promife only, which cannot be proved but by the memory
(which fometimes will induce the perjury) of witneffes. To
prevent which, the ftatute of frauds and perjuries, 29 Car. 11,
c. 3. enacts, that in the five following cafes no verbal promife
fliall be fuflicient to ground an action upon, but at the leaft fome
note or memorandum of it fhall be made in writing, and figned

by

i Bro, /iir. t. ctvengnt. 35. F. N. B. 145. a See book II. ch. 3c.

158

Private Book III.

by the party to be charged therewith: i. Where an executor
or adminiftrator promifes to anfwer damages out of his own ef-
tate. 2. Where a man undertakes to anfwer for the debt, de-
fault, or mifcarriage of another. 3. Where any agreement is
made upon confideration of marriage. 4. Where any contract
orfale is made of lands, tenements, or hereditaments, or any
in tereft therein. 5. And, laftly, where there is any agreement
that is not to be performed within a year froQi the making there-
of. In all thefe cafes a mere verbal ajfiimpftt is void.

From thefe exprefs contracts the tranfition is eafy to thofe
that are only implied by l9,w. Which are fuch as reafon and juf-
tice diclate, and which therefore the law prefumes that every
man has contracted to perform ; and, upon this prefumption,
makes him anfwerable to fuch perfons, as fuffer by his non-per-
formance.

O F this nature are, firft, fuch as are necefllirlly implied by
the fundamental conftitution of government, to which every ,
man is a contracting party. And thus it is that every perfon is
bound and hath virtually agreed to pay fuch particular fums of
money, as are charged on him by the fentence, or aflelTed by the
interpretation, of the law. For it is a part of the original con-
tract, entered into by all mankind who partake the benefits of
fociety, to fubmit in all points to the municipal conftitutions and .
local ordinances of that ftate, of which each individual is a
member. Whatever therefore the laws order any one to pay,
that becomes inflantly a debt, which he hath beforehand con-
. traCted to difcharge. And this implied agreement it is, that gives
theplaintifFa right to inftilute a fecond adion, founded merely
on the general contract, in order to recover fuch damages, or
fum of money, as are affelTed by the jury and adjudged by the
court to be due from the defendant to the plaintiff' in any for-
mer aftion. So that if he hath once obtained a judgment againft
another for a certain fum, and negleds to take put execution
thereupon, he may afterwards bring an actioa of debt upon this

jud^-

Ch. 9' Wrongs. ijo

judgment^, and fliall not be put upon the proof of tlie original
caufc of a(5lion ; but upon fliewing the judgment once obtained,
ftill in full force, and yet unfatisiied, the law immediately im-
plies, that by the original contract of fociety the defendant hatU
contracted a debt, and is bound to pay it. This method feems to
have been invented, when real actions were more in ufe than
at prefent, and damages w'ere permitted to be recovered thereon ;
in order to have the benefit of a writ of capias to take the de-
fendant's body in execution for thofe damages, which procefs was
allowable, in an action of debt (in confequence of the ftatutc
25Edw.III.c. 17.) but not in an action real. Wherefore, fincc
the difufe of thofe real adions, actions of debt upon judgment in
perfonal fuits have been pretty much difcountenanced by the
courts, as being generally vexatious andoppreffive, by harrafling
the defendant with the cofts of two actions inftead of one.

0 N the fame principle it is, (of an implied original contraft
to fubmit to the rules of the community, whereof we are mem-
bers) that a forfeiture impofed by the by-laws and private ordi-
nances of a corporation upon any that belong to the body, or an
amercement fet in a court-leet or court-baron upon any of thp
fuitors to the court (for other wife it will not be binding*") im-
mediately create a debt in the eye of the law: andfuch forfeit-
ure or amercement, if unpaid, work an injury to the party or
parties intitled to receive it; for which the remedy is by action
of debt ^

The fame reafon may with equal juftice be applied to all
penal ftatutes, that is, fuch acts of parliament whereby a for-
feiture is inflicted for tranfgrefling the provifions therein enact-
ed. The party ofiending is here bound by the fundamental con-
tract of fociety to obey the directions of the legillature, and
pay the forfeiture incurred to fuch perfons as the law requires.

he ufual application of this forfeiture is either to the party

grieved,

b Roll. Abr. rfoo, 601-. J 5 Rep. ^4, Hob. 2751.

c Liw oi nif. prhis. 155.

T

i6o Private Book IlL

grieved, or elfe to any of the king's fubjecls in general. Of
the former fort is the forfeiture inflided by the flatute of
Winchefler" (explained and enforced by feveral fubfequcnt fta-
tutes^) upon the hundred wherein a man is robbed, which is
meant to oblige the hundredors to make hue and cry after the
felon; for, if they take him, they ftand excufed. But other-
wife the party robbed is intitled to profecute them, by a fpecial
action on the cafe, for damages equivalent to his lofs. And of
the fame nature is the adfion given by ftatute 9 Geo. I. c. 22.
commonly called the black act, againft the inhabitants of any
hundred, in order to make fatisfaClion in damages to all perfons
who have fuffered by the offences enumerated and made felony
by that act. But, more ufually, thefe forfeitures created by fta-
tute are given at large, to any common informer ; or, in other
words, to any fuch perfon or perfons as will fue for the fame:
and hence fuch actions are called popular actions, becaufe tliey
are given to the people in general ^. Sometimes oae part is given
to the king, to the poor, or to fome public ufe, and the other
part to the informer or profecutor ; and then the fuit is called a
qui tarn action, becaufe it is brought by a perfon " qui tarn pro
" doniino rege, &c, qua?n pro feipfo in hac parte fequitur.'* If the
king therefore himfelf commences this fuit, he fhall have the
whole forfeiture''. But if any one hath begun a qui tarn, or pO'
pular, action, no other perfon can purfue it ; and the verdict
palled upon the defendant in the firft fuit is a bar to all others, '
and conclufive even to the king himfelf. This has frequently
occafioned offenders to procure their own friends to begin a fuit
In order to foreftall and prevent other actions : which practice
is in fome meafure prevented by a ftatute made in the reign of a
very fliarp fighted prince in penal laws; 4 Hen. VII. c. 20, which
enacts, that no recovery, otherwife than by verdict, obtained by
coUufion in an action popular, fhall be a bar to any other action
profccutcd bonajide, A provifion, that feems borrowed from

the

e 13 F.dw. I. c. I. jT See liook II. ch. ip,

f 27 Eliz. c. 13. ip Car. II. c. 7. 8 Ge^. II. li 2, Hivvk, i\ C. >0».
C. 16. Ti2, Cr6*, II. c. Z4.

Ch. 9.

Wrongs. 161

the rule of the Reman law, that if a perfon was acquitted of
any accufation, merely by the prevarication of the accufer, a new
■prolecution might be commenced againU him ',

A SECOND clafs, of implied contrails, are fuch as do not
arifc from the exprefs determination of any court, or the pofitive
direclion of any ilatute ; but from natural reafon, and the juft
condruclion of law. Which clafs extends to all prefumptive
undertakings or affumffits-^ which, though never perhaps adually
made, yet conft:intly arife from this general implication and in-
tendment of the courts of judicature, that every man hath en-
gaged to perform what his duty or juilicc requires. Thus,

1. I F I employ a perfon to tranfact any bufmefs for m.e, or
perform any work, the law implies that I undertook, or affumed
to pay him fo much as his labour deferved. And if I neglecl to
make him amends, he has a remedy for this injury by bringing
his action on the cafe upon this implied ajjumpftt j wherein he is
at liberty to fuggefl that I promifed to pay him fo much as he
rcj.fonably deferved, and then to aver that his trouble was really
worth fuch a particular fum, which the defendant has omitted
to pay. But this valuation of his trouble is fubmitted to the de-
termination of a jury; who will afllfs fuch a fum in damages as
they think he really merited. This is called an ajfumpfit on a
quantum meruit *

2. There is alfo an implied ajjumpfit on a quantum valehat^
\vhich is very fimilar to the former; being only where one takes
up goods or wares of a tradefman, without exprefsly agreeing
for the price. There the law concludes, that both parties did
intentionally agree, that the real value of the goods fiiould be
paid ; and an action on the cafe may be brought accordingly, if
the vendee refufes to pay that value.

Vol. III. W 3. A THIRD

i F/. .n- i|.3'

I

262 . Private Book III.

3. A THIRD fpocies of Implied affuinpftts is when one has
had and received money belonging to another, without any valuable
confideration given on the receiver's part: for the law conftrues
this to be money had and received for the ufe of the owner
only; and implies that the perfon fo receiving propiifed and un-
dertook to account for it to the true proprietor. And, if he un-
juftly detains it, an adion on the cafe lies againft him for the
breach of fuch impKed promife and undertaking-, and he will
be made to repair the owner in damages, equivalent to what he
has detained in fuch violation of his promife. This is a very ex-
tenfive and beneficial remedy, applicable to almoft every cafe
where the defendant has received money which ex aequo et bono
he ought to refund. It Hes for money paid by miftakc, or on a
confideration which happens to fail, or through impofition, ex-
tortion, or oppreffion, or where undue advantage is taken ot the
plaintiff's fituation ''.

4. Where a perfon has laid out and expended his own
money for the ufe of another, at his requeft, the law implies a
promife of repayment, and an aclion will lie on this aJfianpJitK

5. Likewise, fifthly, upon a ftated account between two
merchants, or other perfons, the law implies that he againft
whom the ballance appears has engaged to pay it to the other ;
though there be not any actual promife. And from this impli-
cation it is frequent for aclions on the cafe to be brought, de-
claring that the plaintiff and defendant had fettled their accounts
too-ether, infimul computajent, (which gives name to this fpecies
of afumpfit) and that the defendant engaged to pay the plaintiff
the ballance, but has fmce neglecled to do it. But if no account
has been made up, then the legal remedy is by bringing a writ
oi account, de computo'^ \ commanding the dcfeodant to render a
juft account to the plaintiff, or fhew the court good caufe to the

contrary.

k 4 Burr. loiz, m F. N. B. \ii,

1 CaitJi. 44(3. % Kcb. sj.

Ch. p. Wrongs. i6^

contrary. In this a£lion, if ttepIaintiiT fuccceds, there are two
judgments: the firfl is, that the defendant do account (quod
computet) before auditors appointed by the court ; and, when
fuch account is finifhed, then the fecond judgment is, that he do
pay the plaintiff fo much as he is found in arrear. This action,
by the old common law", lay only againU the parties themfelves,
and not their executors ; becaufe matters of account relied foicly
in their own knowlege. But this defeat, after many fruitieis at-
tempts in parliament, was at laft remedied by ftatute 4 Ann.
c. 1 6. which gives an adion of account againft the executors
and adminiftrators. But however it is found by expecience, that
the moll ready and effectual way to fettle thefe matters of ac-
count is by bill in a court of equity, where a difcovery may be
had on the defendant's oath, without relying merely on the, evi-
dence which the plaintiff may be able to produce. Wherefore
actions of account, to compel a man to bring in and fettle his
accounts, are now very feldom ufed ; though, when an account"
is once ftated, nothing is more common than an action upon the
implied ajfumpfit to pay the ballance.

The lafl clafs of contra<?ts, implied by reafon and conftruc-
tion of law, arifes upon this fuppolition, that every one who un-
dertakes any office, employment, truft or duty, contracts with
thofewho employ or entnift him, to perform it with integrity,
diligence, and fkiil. And, if by his v/ant of eitlier of thofe
qualities any injury accrues to individuals, they have therefore
their remedy in damages by a fpecial action on the cafe. A few
inftances will fully iliuftrate this matter. If an officer of the
public is guilty of neglect of duty, or a palpable breach of it,
of non-feafancc or of miffeafance ; as, if the flieriff does not
execute a writ fent to him, or if he wilfully makes a falfe re-
turn thereof J in both thefe cafes the party aggrieved fl^all have
an aftion on the cafe, for damages to be alfeffcd by a jury**. If
a flieriff ot gaoler fuffers a prifoner, v/ho is taken upon mefne
procefs (that is, during the pendency of a fait) to efcape, he is

W 2 liable

£ Co. Litt. g*» a Mtjar, 451. 11 Rep. 95.

164

Private Book III.

liable to an a<n;ion on the cafe^. But if, aft<)r judgn^.c nt, a gaoler
or a flierifF permits a debtor to efcape, who is charged in exe-
cution for a certain fum ; the debt immediately bi^comes bis own,
and he is compellable by aclion ot debt, being for a fam liqui-
dated and afcertained, toflitiDfy the creditor his whole demand •
whicli docirine is grounded'' on the equity of the ftatutes of
Weftm. 2. 13. Edw.I.c. 11. and iRicILc. 12. An advocate or at-
torney that betray the (.aufe of iheir client^ or, being retained, ne-
glect to appear at the trialjby which the caufe mifcarrles, are liable
to an adion on the cafe, for a reparation to their injured client^
There is alfo in law always an implied contracl with a common
inn-keeper, to fecu re his grieft*s goods in his inn ; with a com-
mon carrier or bargemailer, to be anfw crable for the goods he
carries J with a common farrier, that he flioes a horfe well, with-
out laming him ; w -th a common taylor, or other workmaoj
that he performs his bu'Inefs in a v/orkraanlike manner : in
which, if th::y fail, 2n adiOn en the cafe lies to recover damar;es
for fuch breach of their general undertaking*. Eiit if I employ
a perfon to tranfad any of thefe concerns, wbofe common pro-
feffion and bufinefs it is not, the law implies no fuch general un-
dertaking; but in order to charge him with damages, 2. f pedal
agreement is required. Alfo if an inn-keeper, or other vidual-
ler, hangs out a lign and opens his houfe for travellers, it is an
Implied engagement to entertain all perfoas who travel that way;
and upon this univerLl ajfuwpfd an adion on the cafe will lie
againft him for damages, if he without good reafon refufes to
r/dmit a t^avelier^ If any one cheats me with falfe cards or dice,
or by falfe weights and meafures, or by felling me one commo-
dity for another, an adion on the cafe alfo lies againfl him for
damages, upon thecontrad whicn the law alvv'ays implies, that
every tranfadion is fair and honeft". In contrads likewife for
fales, it is conflantly rmderftiood that the feller imdertakes that
the commodity he fells is his own; and if it proves othervvifc,

aii

p C'lo. E';z. 6i<r. Comb. 69. s 11 Re,". 5^:. i S.rutJ. 314.

tj Bro. Air. t, parliamtiit. ip, 3, Iiirt. jO^. t 1 Vcntr. 333,

y finch. L, i83. - u 10 Rep. s6.

Ch. 9. Wrongs. j/^^

r.n aclion on the cafe lies againft hiir?, to exac): damages foi this
deceit. In contrar^s for provi lion", it is alwr-ys implied that tbcy
arc whole^onr.? j and, if they be not, the il'rae remedy may be
had. AlTo, if he, that feileth any thing, doth upon the fale war-
rant it to be ^'jod, the law annexes a tacit contract to this war-
raaty, that if it be not fo, he fnall make compeniation to tlic
buyer: elfeitisan injury togood faitn, for which an aclioa
on the cafe will lie to rec«)ver damagcs'*v The warranty miift be
tipon tbefdle\ for if it be made^/I^r, undnot at the time of the
fale, it is a void warranty'^: for it is then mad:^ \^ilhout any
conlideration ; neither does the buyer then take the goods upon
the credit of the vendor. Aifo the warranty can only rear.li to
things in being at the time of the warranty made, and net to
things tnfuturo : as, that a horfe Is found at the buying of him ;
not that he will be (omid two years* hence. But if tiie vendor
knev/ the goods to be unfound, and hath ufed any art to difguifc
them% or if they arein any Ihape different from what he repre-
fents them to be to the buyer, this artifice lliull be equivalent to an
exprels warranty, and the vendor is anfv/erablefor their goodnefs.
A general warranty will not extend to guard againil defects that
are plainly and obviouHy the object of one's fenfes, as if a horfe
be warranted perfe6l:, and wants either a tail or an ear, unlefs
the buyer in this cafe be blind. But if cloth is warranted to be
of fuch a length, when it is not, there an aclion on the cafe
lies for damages ; for that cannot be difcerned by fight, but only
by a collateral proof, the meafuring il*. Alfo if a horfe is war-
ranted found, and he wants the fight of an eye, though this
feems to be the object of one's fenfes, yet as the difcernment of
fuch defects is frequently matter of (kill, it hath been held that
an aclion on the cafe lieth, to recover damages for this impofition''.

Besides the fpecial a6lion on the cafe, there is alfo a pecu-
liar remedy, entitled an adion of deceil^, to give damages in fome

particular

w F. N. B, 94, 2 Finch. L. i8j.

X Finch. L. 189. ' a Salk. 611. '

fiRvU. Rep.5. f. N.B. PS.

1 66 Private Book III.

particular cafes of fraud ; and principally where one man does
any thing in the name of another, by which he is deceived or
injured^; as if one brings an action in another's name, and then
fuffers a nonfuit, whereby the plaintiff becomes liable to cofts :
or where one fuffers a fraudulent recovery of land or chattels to
the prejudice of him that hath right. It alfo lies in the cafes of
warranty before-mentioned'^; and the .other injuries conxmitted
contrary to good faith and honefty. But the action o;z the cafe^
in nature o£ deceit, is more ufually brought upon thefe occafions.

Thus much for the non-performance of contrails exprefs or
implied ; which includes every poflible injury to what is by far
the moft confiderable fpecies, of perfonal property ; viz. that
which conlifls in action merely, and not in poffeflion. Which
finifhes our enquiries into fu^h wrongs as may be oifered to ^^r-
yo«^/ property, with their feveral remedies by fuit or action »

c Law oinifip/iHi. api d F. N. B, p8.

Ch. 10. Wrongs. 167

Chapter THE tenth.

Of injuries to REAL PROPERTY, and
FIRST OF DISPOSSESSION, or OUSTER,
OF THE FREEHOLD.

IC O M E now to confider fuch injuries as affed that fpecies
of property which the laws of England have denominated
r€al ; as being of a more fubftantial and permanent nature, than
thofe tranfttory rights of which perfonal chattels are the object.

Real injuries then, or injuries affecting real rights, are prin-
cipally fix; I. Oufter; 2. Trefpafs ; 3. Nufance ; 4, Wafte j
5. Subtraction ; 6. Difturbance.

Ouster, or difpoffefHon, is a wrong or injury that carries
with it the amation of poffcflion : for thereby the wrongdoer gets
into the actual occupation of the land or hereditament, and ob-
liges him that hath a right to feek his legal remedy ; in order to
gain poffefiion, and damages for the injury fuftained. And fuch
oufter, or difpoflefhon, may either be of t\\Q freehold, or oi chat'
tels real. Oufter of the freehold is effe6ted by one of the fol-
lowing methods: i. Abatement; 2. Intrufion ; 3. Diffeifin :
4. Difcontinuance ; 5. Deforcement. All of which in their or-
der, and afterwards their refpective remedies, will be confid^red
in the prefcnt chapter.

r. And,

1 68 Private Book III.

I. And, fir ft, an abatement is wherg a pcrlon die -3 feifed of
an inheritance, and berorc the heir or deviiee enters, a ftr^nger
■wlio has no riglit makes entry, and gets pplTeffion of the -ree-
hold : this entry of him is called an abatement, and he himrelf
is denominated an abator''. It is to be obferved that this ex*
preffion, of abating, which is derived from the French and fig-
niiies to quafh, beat down, or deftroy, is ufed by our law in
three fenfes. The firft, which feems to be the primitive fenfe,
is that of abating or beating down a nufance, of which we fpoke
in the beginning of this book'': and in a like fenfe it is ufed in
f:atute \Yeftm. i. 3 Edw. I. c. 17. where mention is made of
abating a jcaftle or fortrefs ; in which cafe it clearly lignifies to
pull it down, and level it with the ground. The fecond fignifi-
cation of abatement is that of abating a writ or action, of which
wc Ciali fay more hereafter : here it is taken figuratively, and
fignifies the overthrow or defeating of fuch writ, by fome fatal
exception to it. The laft fpecies of abatement is that we have
novv' before us ; which is alio a figurative expreflion, to denote
that the rightful pofTeilion or freehold of the heir or devifee is
oveithrovvm by the rude intervention of a flranger.

This abatement of a freehold is fome what fimilar to an im-
mediat-e occupancy in a (late of nature, which is effecled by ta-
king poffeflion of the land the fame inftant that the prior occu-
pant by hi3 death relinquifhes it. But this however agreeable
to natural juflice, confidcring man merely as an individual, is
diametiically oppofite to the law of fociety, and particularly the
law of England : which, for the prefervation of public peace,
hath prohibited as far as poUible all acquifitions by mere occu-
pancy ; and hath directed that lands, on the death of the prefent
poffciTor, fliould immediately veft either in fome perfon, exprefsly ,
named and rppointed by the deceafed, as his devifee ; or, on de-
fault of fuch appointment, in fuch of his next relations as the
l^Yj hath fclected and pointed out as his natural rcpr efentative or

hqir.

a Fiachi L. 1^5. k page j, . /

CIi. 10. Wrongs. 169

heir. Every entry therefore of a mere ftranger, by way of in-
tervention between the anceftorancihcir or perion next entitled,
which keeps the heir or devifee out of pofleflion, is one oi" the
higheft injuries to the rights of real property.

2. The fecond fpecies of injury by oufter, or amotion of
poflefiion from the freehold, is by intrufion : which is the entry
of a flrangcr, after a particular eftate of freehold is determined,
before him in remainder or reverfion. And it happens where a
tenant for term of life dieth ieifed of certain lands and tene-
ments, and a ftranger entereth thereon, after fuch death of the
tenant, and before any entry of him in remainder or reverfion *".
This entry and interpofltion of the flranger differ from an abate-
ment in this ; that an abatement is always to the prejudice of
the heir, or immediate devifee ; an intrufion is always to the
prejudice of him in remainder or reverfion. For example; if A
dies feifed of lands in fee-fimple, and, before the entry of B his
heir, C enters thereon, this is an abatement ; but if A be tenant
for life, with remainder to B in fee-fimple, and, after the death
of A, C enters, this is an intrufion. Alfo if A be tenant for life
onleafefrom B, or his anceflors, or be tenant by the curtefy, or
in dower, the reverfion being vefted in B ; and after the death
of A, C enters and keeps B out of pofTeflion, this is likewife an
intrufion. So that an intrufion is always immediately confequent
upon the determination of a particular eflate ; an abatement
is always confequent upon the defcent or devife of an eftate in
fee-fimple. And in either cafe the injury is equally great to hira
whofe pofTeilion is defeated by this unlawful occupancy.

3. T H E third fpecies of injury by ouiler, or privation of the
freehold, is by d'lfjeljln. Diffeifin is a wrongful putting out of
him that is feifed of the freehold ^^ The two former fpecies of
injury were by a wrongful entry where the pofTeflion was vacant ;
but this is an attack upon him who is in actual pofTeflion, and
turning him out of it. Thofe were an oufter from a freehold in
Vol. III. X law J

c Co. Lltt. J77. F. N. B. Z03, 104. d Co, Litt. A77.

J7<^ Private Book III.

law; this is an oufter from a freehold in deed. This may be ef-
fected either in corporeal inheritances, or incorporeal. Difleifin
of things corporeal, as of houfes, land, 6y, miift be by entry
and actual difpoffeflion of the freehold*"; as if a man enters ei-
ther by force or fraud into the houfe of another, and turns, or
at lealf keeps, him and his fervants out of poiTellion. Difleifm
of incorporeal hereditaments cannot be an actual difpoffellion ;
for the fubject itfelf is neither capable of actual bodily pollefllon,
nor difpofleffion : but it depends on their refpective natures, and
various kinds; being in general nothing more than a difturbance
of the owner in the means of coming at, or enjoying them. With
regard to freehold rent in particular, our antient law-books'" men-
tion five methods of working a diffeifin thereof: i. By enclofure\
where the tenant fo enclofeth the houfe or land, that the lord
cannot come to diftrein thereon, or demand it: 2. V>y foreJJaller
or lying in wait; when the tenant befettcth the way with force
and arms, or by menaces of bodily hurt affrights the lefTor from
coming: 3. By refcous \ that is, either by violently retaking a
diftrefs taken, or by preventing the lord with force and arms
from taking any at all : 4. By replevin ; when the tenant re-
plevies the diltrefs at fuch time when his rent is really due:
5. By denial; which is when the rent being lawfully demanded
is not paid. All, or any of thefe circumftances work a diffeifin
of rent: that is, they wrongfully put the owner out of the only
polTeflion, of which the fubject- matter is capable, namely, the
receipt of it. And all thefe diffeifins, of hereditaments incorpo-
real, are only fo at the election and choice of the party injured ;
if, for the fike of more eafily trying the right, he is pleafed to
fuppofchimfelf dilTcifed^. Otherwifc, as there can be no actual
difpoflefTion, he cannot be compulfively diffeifed of any incorpo-
real hereditament.

And fo too, even in corporeal hereditaments, a man may
frequently fuppofe himfelf to be diffeifed, when he is not fo in

fact.

c Co. Litt. lOi. g Litt. §. 588, j8f).

i Finch. L. i(5s, i<J^. Lit. §. 237, ire.

Ch. 10.' Wrongs. i

/

!

facl, for the {;ike of intitling himfelf to the more eafy and conl-
modioiis remedy of an aiUle of novel dijfsifin^ (which will be ex-
plained in the fcquel of this chapter) inilcad of being driven to
the more tedious procefs of a writ of entry''. The true injury
of compulfive difl'eifin feems to be that of difpoffefling the te-
nant, and fubllituting onefelf to be the tenant of the lord in his
flead ; in order to which in the times of pure feodal tenure the
confent or connivance of the lord, who upon every defcent or
alienation perfonally gave, and who therefore alone could change,
the fcilin or inveftiture, feems to have been antiently neceflary.
But when in procefs of time the feodal form of alienations v/ore
off, and the lord was no longer the inflrument of giving afludl
feifin, it is probable that the lord's acceptance of rent or fervice,
from him who had difpofleffed another, might conftitute a com-
plete difleifm. Afterwards, no regard was had to the lord's con-
currence, but the difpofTeiTor himfelf was confidered as the fole
diifeifor : and this wrong was then allowed to be remedied by
entry only, without any form of law, as againfl the diffeifor him-
felf; but required a legal procefs againfl his heir or alienee. And
when the remedy by ailife was introduced under Henry II, to re-
drefs fuch diffeiiins as had been committed within a few years
next preceding, the facility of that remedy induced others, who
were wrongfully kept out of the freehold, to feign or allow them-
felves to be diffeifed, merely for the fake of the remedy.

These three fpecies of injury, abatement, intrufion, and
diffe'ifin, are fuch wherein the entry of the tenant ab hiitio, as
well as the continuance of his poffeflion afterwards, is unlawful.
But the two remaining fpecies are where the entry of the tenant
was at firft lawful, but the wrong coniifls in the detaining of
pofleflion afterwards.

4. Such is fourthly, the injury of difcontinuance ', which
happens when he who hath an eflate-tail, maketh a larger eflate
of the land than by law he is intitled to do' : in which cafe the

X 2 eftate

li U<i>^h, pm-v. c. 7. 4 Burr. no. i Finch. L. i<jo.

172 Private Book III,

eftate is good, fo far as his power extends who made it, but no
farther. As if tenant in tail makes a feoffment in fee-fimple,
or for thehfe of the feoffee, or in tail ; all which are beyond his
power to make, for that by the common law extends no farther
than to make a leafe for his own life : here the entry of the
feoffee is lawful during the life of the feoffor ; but if he retains
the poffeffion after the death of the feoffor, it is an injury,
which is termed adlfcontinuance : the antient legal eflate, which
ought to have furvived to the heir in tail, being gone, or at leaft
fufpended, and for a while difcontinucd. For, in this cafe, on
the death of the alienors, neither tlie heir in tail, nor they in
remainder or reverfion expectant on the determination of the
eftate'tail, can enter on and poffcfs the lands fo alienated. Alfoi
by the common law, the alienation of an hufband v/ho was feifed
in the right of his wife, worked a difcontinuance of the wife's
eftate: till the ftatute 32 Hen. Vlll. c. 28. provided, that no acl
by the hufband alone Ihould work a difcontinuance of, or pre-
judice, the inheritance or freehold of the wife ; but that, after
his death, flie or her heirs may enter on the lands in queflion.
Formerly alio, if an alienation was made by a fole corporation,
as abifhopor dean, withoutconfent of the chapter, this was a
difcontinuance^ But this is now quite antiquated by the difabling
ftatutes of I Eliz. c. 19. and 13 Eliz. c. 10. which declare all
fuch alienations abfolutcly void ab init'iQ, and therefore at prefent
jio difcontinuance can be thereby occafioned.

5. Th E fifth and lafl: fpecies of injuries by oufter or privation
of the freehold, where the entry of the prefent tenant or pof-
feffor was originally lawful^ but his detainer is now unlawful,
is that by deforcement. This, in it's moft extenfive fenfe, is
7W}nen generaUJpmum ; a much larger and more compreheniive
expreflion than any of the former : it then fignifying the hold-
ing of any lands or tenements to which another pcrfon hatha
right". So that this includes as well an abatement, an intrufion,
adiffeifin, or a difcontinuance, as any other fpecies of wrong

whatr

j F. N. B. ir^. k Co. Litt. 3,Ti.

Ch. 10. Wrongs. i

73

whatfocvcr, whereby he that hath riglit to the frecliold is kept
out of poflfeilion. But, as contradlftinguillicd from the former,
it is only fuch a detainer of the freehold, from him that hath
the right of property, but never had any poflbffion under that
rio-ht, as falls within none of the injuries which we have before
explained. As in cafe where a lord hath a fcignory, and lands
efcheat to him propter defedum fanguinis^ but the ieifiin of the
lands is withheld from him : here the injury is not abatement^
fortherifrht vefts not in the lord as heir or devifce ; nor is it
}ntrufion-> for it vefls not in him in remainder or reverfion ; nor
is it diffei/hi, for the lord was never feifed ; nor does it at ail bear
the nature of any fpecies of difcont'muance ; but, being neither
ofthefefour, it is therefore a deforcement^ If a man marries a
woman, and during-the coverture is feifed of lands and alienes,
and dies ; is diifeifed, and dies ; or dies in poffefiion ; and the
alienee, diffeifor, or heir enters on the tenements and doth not
allir>-n the widow her dower ; this is alfo a deforcement to the
widow, by withholding lands to which fhe hath a right"". In.
like manner, if a man leafe lands to another for term of years,
or for the life of a third perfon, and the term expires by furren-
der efflux of time, or death of the ceftui que vie ; and the leffee
or any ftranger, who was at the expiration of the term in pof-
feffion, holds over, and refufes to deliver the pofTeffion to him in
remainder or reverfion, this is likewife a deforcement". Deforce^
ments may alfo arife upon the breach of a condition in law: as
jf a woman gives lands to a manby deed, to the intent that he
marry her, and he will not when thereunto required, but conti-
nues to hold the lands : this is fuch a fraud on the man's part,that
the law will not allow it to deveft the woman's right : though
it does deveft the poffellion, and thereby becomes a deforcement".
Deforcements may alfo be grounded on the difability of the party
deforced : as if an infant do make an alienation of his lands,
and the alienee enters and keeps pofleffion ; now, as the alie-
nation is voidable, this poiFellion as againft the infant (or, in calc

of

1 F N. B 143. " Finch, L. 2153. F. N. B. 201. joj, 6, 7,

m 'm.%'. im'. o F. N. 15. ios.

174 Private Book lit,

of his deceafe, as againft his heir) is wrongful and therefore a
deforcement". The fame happens, when one of nonfane me-
mory alienes his lands or tenements, and the alienee enters and
holds poileffion, this is alfo a deforcement''. Another fpecies of
deforcement is, where two perfons have the fame title to land,
iind one of them enters and keeps polTeflion againft the other : as
where the anceftor dies feifed of an eilate in fce-fimple ; which
defcends to two fifters as coparceners, and one of them enters
before the other, and will not fuffer her hfter to enter and enjoy
her moiety ; this is alio a deforcement'. Deforcement may alfo
be grounded on the non-performance of a covenant real : as if a
man, feifed of lands, covenants to convey them to another, and
neglects or refufes fo to do, but continues poifeffion againft him ;
this polTcHion, being wrongful, is a deforcement% And hence,
in levying a fine of lands, the perfon, againft whom the ficli-
tious adlion is brought upon a fuppofed breach of covenant, is
called the deforciant. Thus, laftly, keeping a man by any means
out of a freehold office is a deforcement : and, indeed, from all
thefe inftances it fully appears, that whatever injury, (vv'ith-
holding the poffeffion of a freehold) is not included under one
of the four former heads, is comprized under this of deforcement.

The feveral fpecies and degrees of injury by oufier being thus
afcertained and defined, the next confideration is the remedy :
which is, univerfally, the reflitut'ion or delivery of fojfejfion to the
right owner; and, in fome cafes, damages alfo for the unjuft
amotion. The methods, whereby thefe remedies, or either of
them, may be obtained, are various.

I. The firft is that extrajudicial and fummary one,which wc
flightly touched in the firft chapter of the prefent book', cA entry
by the legal owner, when another perfon, who hath no right, hath
previoufly taken poffeflion of lands or tenements. In this cafe the

party

p Finch. L. 1(^4. F. N. B. ipi. s F. N. R. u^C,

q Finch, ibid. F. N. B. loz. t See pa«j. 5.

r finch, L. apj, 154. F. N. B. if>7.

Ch. 10. Wrongs. 1 75

party entitled may make a formal, but peaceable, entry thereon,
declaring that thereby he takes poflcilion ; which notorious act of
owncrfhip is equivalent to a feodal invcftitiirc by the lord" : ou
he may enter on any part of it in the fame county, declaring it
to be in the name of the whole": but if it hes in different
counties he muft make different entries ; for the notoriety of fucli
entry or claim to the pares or freeholders of Weftmoiland, is
not any notoriety to the pares or freeholders of Suffex. Alfo if
there be t-zuo dilTcifors, the party diffeifed muft make his entry oa
bctb', or if one diffeifor has conveyed the lands with livery to /ceo
diftincl feoffees, entry muft be made on both'''' : for as their felliu
is diftinct, fo alfo muft be the act which devefts that feifm. If
the claimant be deterred from entering by menaces or bodily fear,
he may make cA-z/wz, as near to the eftate as he can, with the like
forms and folemnities: which claim is in force for a year and a
day only". And therefore this claim, if it be repeated once ia
the fpace of every year and day, (which is cidled conti?iuaI claim')
has the fame effect v.'ith, and in all refpects amounts to, a legal
entry ^. Such an entry gives a man feilin% or puts him into im-
mediate poffejflion that hath right of entry on the eftate, and
thereby makes him complete owner, and capable of conveying
it from himfelf by either defcent or purchafe.

This remedy by entry takes place in three only of the five
fpecies of oufter, xvjr. abatem.ent, intrulion, and diffeiftn^: for,
as in thefe the original entry of the wrongdoer was unlawful,
they may therefore be remedied by the mere entry of him who
hath right. But, upon a difcontinuance or deforcement, the
owner of the eftate cannot enter, but is driven to his action :
for herein the original entry being lawful, and thereby an appa-
rent right of poffciTion being gained, the law will not fuffer
that right to be overthrown by the mere act or entry of the
claimant.

On

V See hook IT. ch. 14, pag, aop. y Ili'L §. 419- 413.

u Litt. §. 417. z Co. Litt. 15.

w Co. TJtt. 15Z. a Ikid. 137.

X Litt.

i']6

Private Book III.

O N the other hand, in cafe of abatement, intrufion, or dif-
feifin, where entries are generally lawful, this right of entry may-
be tolled, that is, taken away, by defcent. Defcents, which take
away entries^, are when any one, feifed by any means whatfo-
ever of the inheritance of a corporeal hereditament, dies, where-
by the fame defcends to his heir: in -this cafe, however feeble
the right of the anceftor might be, the entry of any other per-
fon who claims title to the freehold is taken away ; and he can-
not recover poil'effion againil the heir by this fiUTjmary method,
but is driven to his action to gain a legal feiiin of the eftate. And
this, firft, becaufe the heir comes to the eftate by a6l of law,
and not by his own acl ; the law therefore prote(fts his title, and
will not fuiTer his poileflion to be devefted, till the claimant hath
proved a better right. Secondly, becaufe the heir may not fud-
denly know the true flate of his title: and therefore the law,
which is ever indulgent to heirs, takes away the entry of fuch
claimant as neglected to enter on the anceftor, who was well
able to defend his title; and leaves the claimant only the reme-
dy of a formal action againll the heir '^. Thirdly, this was ad-
mirably adapted to the military fpirit of the feodal tenures, and
tended to m.ake the feudatory bold in war : fmce his children
could not, by any mere entry of another, be difpoffelfed of the
lands whereof he died feifed. And, laftly, it is agreeable to the
dictates of reafon and the 2;eneral principles of law.

For, in every complete title'' to lands, there are two things
neceffary ; the poffeffion or feifm, and the right or property
therein'': or, as it is expreffed in Fleta, t\\& juris et je'ifme con-
juncl'io ^ Now, if the poffeffion be fevered from the property,'
if A has the jus proprietatis^ and B by fome unlawful means has
gained poffeffion of the lands, this is an injury to A; for which the
law gives a remedy, by putting him in poffeffion, but does it by

different

b Litt. §. 3SJ — 413. e Mirror, c. i. §. 17.

c Co. Litt. 137. f /. 3, c. 15. §, 5.

d See book II. ch. 13-

ell. 10. Wrongs. 177

different means according to the circumdanccs of the cafe.
Thus, as B, who was hinifelf the wrongdoer, and hath obtained
the poffeflion by either fraud or force, hath only a hare or naked
pojjl'lfion, without any ihadow of right ; A therefore, who hatK
both the right of property and the right of poffeffion, may put
an end to his title at once, by the fummary method of entry.
But, if B the wrongdoer dies feifed of the lands, then B's heir
advances one ftep farther towards a good title.: he hath not only
2i bare pojfejjion^ but alio an apparent jus pojjejjionis, or right oi
pofTcirion. For the law prefumes, that the poffeflion, which is
tranfmitted from theanceftor to the heir, is a rightful poffeflion,
until the contrary be fliewn : and therefore the mere entry of A
is not allowed to evict the heir of B ; but A is driven to his
action at law to remove the poflcflion of the heir, though his
entry alone would have difpoffeffed the anceftor.

So that in general it appears, that do man can recover poffef-
fion by mere entry on lands, which another hath by dcfcent*
Yet this rule hath fome exceptions^; wherein thofe reafons ceafe,
upon which the general doftiine is grounded; efpecially if the
claimant were under any legal diflibilities, during the life of the
anceftor, either of infancy, coverture, imprifonment, infanity^
or being out of the realm: in all which cafes there is no neglecl:
or laches in the claimant, and therefore no defcent fhall bar, or
take away his entry''. And this title, of taking away entries by
defcent, is ftill farther narrowed by the ftatute 3 2 Hen. VIII. c. 35*
which enacts, that if any perfon difleifes or turns another out of
poffeflion, no defcent to the heir of the diffeifor fliall take away
the entry of him that has ri^ght to the land, unlefs the diffeifor
had peaceable poffeflion five years next after the diffeifin. But
the ftatute extendcth not to any feoffee or donee of the diffeifor,
mediate or immediate' : becaufe fuch a one by the genuine feodal
conftitutions always came into the tenure folemnly and with the
Vol. III. ^ Y lord's

g Sec the particular cafes mcntoined by h Co. Lift, xj^tj.

Littleton, b. 3. ch. 6. the principles of which i Jbid. x$6.

are well explained in CHbcit's law of tenures.

1 yS Private Book III.

lord's concurrence, by adiial delivery of feifin or open and public
invelliture. On the other hand, it is enacted by the ftatute of
limitations, 21 Jac. I. c. 16. that no entry Ihall be made by any
man upon lands, unlefs within twenty years after his right fliall
accrue. And by ftatute 4 & 3 Ann. c. 16. no entry fhall be of
force to fatisfy the faid ftatute of limitations, or to avoid a fine
levied of lands, unlels an action be thereupon commenced within
one year after, and profecuted with effect.

Upon anoufter, by thedifcontinuance of tenant in tail, we have
faid that no remedy by mere entry is allowed; but that, when
tenant in tail alienes the lands entailed, this takes away the en-
try of the ifiiie in tail, and drives him to his action at law to re-
cover the polTefiion''. For, as in the former cafes the law will
not fuppofe, without proof, that the anceftor, of him in pofTef-
lion acquired the eftate by wrong ; and therefore, after five
years peaceable poflcfiion, and a defcent caft, will not fuffer the
poiTeilion of the heir to be difturbed by mere entry without ac-
tion ; fo here, the law will not fuppofe the difcontinuor to have
aliened the eftate without power fo to do, and therefore leaves
the heir in tail to his action at law, and permits not his entry to
be lavv^ful. Befides, the alienee, who came into poffeflioii by a
lawful conveyance, which was at leaft good for the life of the
alienor, hath not only a bare poflefiion, but alfo an apparent right
of pofl'effion ; which is not allowed to be devefted by the mere
entry of the claimant, but continues in force till a better right
befhewn, and recognized by a legal determination. And fome-
thing alfo perhaps, in framing this rule of law, may be allowed
to the inclination of the courts of juftice, to go as far as they
could in making eftates tail alienable, by djcclaring fuch aliena-
tions to be voidable only and not abfolutely void,

I N cafe of deforcements alfo, Vv'here the deforciant had ori-
ginally a lawf ul poftcffion of the land, but now detains it wrong-
fiilly, be ftill continues to have the prefumptive prima fade evi-
dence

k, Co. Litt. 31J.

Ch. 10.' Wrongs. lytj

dence of right ; that is, pofTefTion lawfully gained. Which poffcr-
lion flisll not beovciturned by the mere entry of another; but|on]y
by the demandant's Ihcwing a better right in a courfe of law.

This remedy by entry mufl be purfued, according to ftatute
5 Ric. II. ft. I.e. 8. in a peaceable and eafy manner ; and not
with force or ftrong hand. For, if one turns or keeps another
out of poflefllon forcibly, this is an injury of both a civil and a
criminal nature. The A^'il is remedied by immediate reftitution ;
which puts the antient j^offeffor inftatu quo: the criminal injury,
or public wrong, by bre;Ach of the king's peace, is puniflied by
fine to the king. For by the ftatute B Hen. VI. c. 9. upon com-
plaint made to any juftice of the peace, of a forcible entry, with
ftrong hand, on lands or tenements; or a forcible detainer after
a peaceable entry; he ftiall try the truth of the complaint by
jury, and, upon force found, ftiall reftore the polfeliion to the
party fo put out: and in fuch cafe, or if any alienation be made
to defraud the pofteflbr of liis right, (which is declared to be ab-^
folutelv void) the offender ftiall forfeit, for the force found, treble
damages to the party grieved, and make fine and ranfom to the
kino-. But this does not extend to fuch as endeavour to keep
poffeftion manii fort'i^ after three years peaceable enjoyment K^i
either themfelves, their anceftors, or thofe under whom they
claim; by a fubfequent claufe of the fiime ftatute, enforced by
ftatute 31 Eliz.c. 11. >

II. Thus far of remedies, Vi^here the tenant or occupier of
the land hath gained only a mere pffeffim^ and no apparent flia-
dow of right. Next follow another clafs, which are in ufe
where the title of the tenant or occupier is advanced one ftep
nearer to perteclion ; fo that he hath in him not only a bare
pofieflion, which may be deftroyed by entry, but alfo an appa-
rent ri'Tbt of poU'elpon, which cannot be removed but by courfe
of law: in the procefs of which muft be fiiewn, that though he
hath at prcfent poflefllon and therefore hath the prefumptive

Y 2 right.

1 8o Private Book III.

right, yet there is a right of poffeffion, fuperior to his, refiding
ill him who brings the aclion.

These remedies are either by a writ of entry ^ or an ajjife :
which are actions merely pofjejjhry ; ferving only to regain that
poflefTjon, whereof the demandant (that is, he who fues for the
land) or his anceftors, have been unjuftly deprived by the tenant
or pofTefTor of the freehold, or thofe under whom he claims. They
meddle not with the right of property: OYAy reftoring the de-
mandant to that flate or fituation, in which he was (or by law
ought to have been) before the difpolieflion committed. But this
without any prejudice to the right of ownerlhip: for, if the
difpoireflbr has any legal claim, he may afterwards exert it, not-
withftanding arecovery had againfthim inthefe pofTeiTory actions.
Only the law will not fufFer him to be his own judge, and either
take or maintain poffeffion of the lands, until he hath recovered
them by legal means': rather prefuming the right to have ac-
companied the antient feifin, than to rciide in one who had no
fuch evidence in his favour.

I. The firfl: of thefe poffeffory remedies is by writ of entry \'
%vhich is that which difproves the title of the tenant or poffeffor,
by fliewing the unlawful means by which he entered or conti-
nues poffeffion'". The writ is directed to the ffieriff, requiring
him to " command the tenant of the land that he render (in
" 'L-^itm, praecipe quod reddat) to t\\Q dtm2.v\d2int the premifes in
*' queftion, which he claims to be his right and inheritance ;
" and into which, as he fliith, the faid tenant hath not entry but
" by adiffeifm, intrufion, or the like, made to the faid demand-
''• ant, within the time limiteci by law : or that upon rcfufal he
♦' do appear in court on fuch a day, to ffiew wherefore he hath
«' not done it"." This is the original procefs, the praecipe, upon
which all the reft of the fuit is grounded; and from hence it
appears, that what is required of the tenant is in the alternative,

either

1 Mirr. c. 4. §. 14. ji See Vol. II. append. N". V. §. i,

X(\ Fiuch. L. v5j.

Ch. 10. Wrongs. i 8 i

cither to deliver feifin of the lands, or to fliew caufc why he
will not. Wiiich caufe may be cither a denial of the fact, of
having entered by fuch means as are fuggefted, or a juftification
of his entry by reafon of title in himfelf, or in thofe under whom
he makes claim: and hereupon the pofleilion of the land is
awarded to him who produces the cleareft right to poflefs it.

In our antlent books we find frequent mention of the degrees,
within which writs of entry are brought. If they be brought
againfl the party himfelf who did the wrong, then they only
charge the tenant himfelf with the injury; " non hahuit ingref-
" fum Ji'ifi -per intrufionem quam ipfe fecit. '^ But if the intruder,
difleifor, or the like, has made any alienation of the land to a
third perfon, or it has defcendcd to his heir, that circumRanco
muft be alleged in the writ, for the action muft always be brought
againft the tenant of the land ; and the defect of his pofleflbry
title, whether arifmg from his own wrong or that of thofe under
whom he claims, muft be fet forth. One fuch alienation or de-
fcent makes the firft ° degree, which is called the per, becaufe
then the form of a writ of entry is this ; that the tenant had
no right of entry, but by the original wrongdoer, who aliena-
ted the land, or from whom it defcended, to him: " no?i ha"
*' bidt ingreffum, n'lfi per Gu'iUelmum, qui fe in illud intruftt, et il-*
" lud tenenti dimifit^." A fecond alienation or defcent makes an^
other degree called the per and cui ; becaufe the form of a writ
of entry, in that cafe, is, that the tenant had no title to enter,
but by or i^fider a prior alienee, to whom the iritruder demifed
it ; " non habuit ingreffum, 7ufi per Ricardmn, cui Guilielmus illud
" dimifit, qui fe in illud intrufit'^.^'' Thefe degrees thus ftate the
orip-inal wrono:, and the title of the tenant who claims under
fuch wrong. If more than two degfees, that is, two alienations
or defcents were pafl:, there lay no writ of entry at the common

law,

o Finch. L. %&x, Eootli indeed (of real But the diiference is immaterial,
aaions. 171.) rnakes the firft degree to con- p Booth. i8r.

lift in the original wrong done, the fecond q Finch. L. J^S- F. N. B. J':>3- ^04.

inthe;)t/-, and tlie third in the /^r and cuu

182 Private Book III,

law. For, as it was provided, for the quietnefs of men's inhe-
ritances, that no one, even though he had the true right of pof-
feffion, fhould enter upon him who had the apparent right by
defcent or othervvife, but he was driven to his writ of entry to gain
pofleffion ; fo, after more than two defcents or two conveyances
were paflfed, the demandant, even though he had the right both
of poflellion and property, was not allowed this pojjejjory acliion ;
but was driven to his writ of rights a long and final rem.edy, to
punifli his neglect in not fooner putting in his claim, while the
degrees fubfifted, and for the ending of fuits, and quieting of
all controverfies'. But by theflatute of Marlbridge, 52 Hen. III.
c. 30.it was provided, that when the number of alienations or
defcents exceeded the ufual degrees, a new writ fliould be al-
lowed without any mention of degrees at all. And accordingly
a new writ has been framed, called a writ of entry in the pojl,
which only alleges the injury of the wrongdoer, without dedu-
cing; all the intermediate title from him to the tenant : ftatino: it
in this manner; that the tenant had no legal entry unlefs after,
or fubfequent to, the oufter or injury done by the original dif-
polfefTor; " non hahuit ingreffum nifi poll intrtifionein qitam Giii-
" lielmus i?i illud fecit ;" and rightly concluding, that if the ori-
ginal title was wrongful, all claims derived from thence muft
participate of the fame wrong. Upon the latter of thefe writs
it is (the writ of entry fur diffeifin in the pofi) that the form of
our common recoveries of landed eftates is ufually grounded ;
which, we may remember,were obferved in the preceding volume*
to be fictitious actions, brought againft the tenant of the freehold
(ufually called the tenant to the praecipe, or writ of entry) in
which by collufion the demandant recovers the land.

This remedial inflrumeiit, of writ of entry, is applicable to
all the cafes of oufter before-mentioned, except that of difcon-
tinuance by tenant in tail, and fome peculiar fpecies of deforce-
ments. Such is that of deforcement of dower, by not aftigning
^«y dower to the widow within the time limited by law; for

which

r a Inft. 153. s Book II. ch. 3,1,

Ch. 10.

Wrongs.

i8

3

which flic has her remedy by a writ of dower, iinde nihil hahet ^
Bnt if flie be deforced of part only of her dov/er, flie cannot
then fay that mh'il hahet \ and therefore fiie may have recourfe to
another action, by writ of right of dower : which is a more
general remedy, extending either to part or the whole; and is
(with regard to her claim) of the fame nature as the grand writ
of right, whereof we fliall prefently fpeak, is with regard to
claims in fce-fimple'. On the other hand, if the heir (being
within age) or his guardian, afUgn her more than fhe ought to
have, they may be remedied by a writ o^ admeafii-rement of dower"^.
But in general the writ of entry is the univerfal remedy to recover
pofleinon, when wrongfully withheld from the owner. It were
therefore cndlefs to recount all the feveral divifions of writs of en-
try, wh'ch the different circumfcances of the refpeclive demand-
ants, may require, and whicharefurnifhedby thelawsofEngland'';
being plainly and clearly chalked out in that moft antient and
higlily venerable colleclion of legal forms, the regiftnun omnium
breviufii, or regifter of fuch writs as are fuajjle out of the king's
courts, upon v/hich Fitzherbert's natura hrevium is a comment \

- and

f F. N. B. 147.

t IhU. irt.

u F. N. B. 145. Finch. L. 314. Stat,
Weftm. z. 13 F.dw. I. c. 7.

V See Britton. c. 114. fol. 2.63^. The
mod ufiial were, i. The writs of enlry fur
dljfc'ifin and oi tnttHfion : (F. N. B. ipr. 103.)
which are brought to remedy either of thofe
fpecies of oiifter. a. The writs of dum fuit
infra nctdteni, and dum fi::t nan compos mciith :
(Ihid. lyz. icz.) whicli lie for a perfon of
full age, or one who hath recovered Ins un-
derftaiiding, aftsr having (when under age
or infane) aliened his lands; or for the heirs
of Tuch alienor. 3. The writs of cm in vita
and c:n ante divortium : (Ibid. 193.104.) for
a woman, when a widow or divorced, whofe
hufband daring the coverture {cui in vita
/"'.?, vcl cui ante divortium, ipfa contrudiccrc

ji! pctuit) hath aliened her eftate. 4. The

writ adccnimunem legem : fliiJ. 107.) forth?
reverlioner, after the alienation and death
of the particular tenant for life. 5. The
writs in cafu provifo and in confunili cafu :
(ihid. aoj. ao(5.) which lay not ad commu^
nem legem, hut are given by flat. Gloc.
6 Edw. I. c. 7. and Weftm. 1. 13 Edvv. I.
c. 14. for the rcverfioner after the aliena-
tion, but during the life, of the tenant in
dower or other tenant for life. 6. The
writs ad tcrminmn qui praeleriit : (Ibid, zoi.)
for the reverlioner, wiien the pofitflion is.
withheld by the lefFee or a (tiangcr, after
the determination of a leale for years.
7. The writ caiifa matriiiwnii praeJocnti :
(Ih'id. 105.) for a woman who giveth land
to a man in fee or for life, to the intent that
he may marry her, and he doth not. And
the like in cafe of other deforcements.

184

Private Book III.

and in which every man who is injured vvdll be fure to find a method
of relief, exactly adapted to his own cafe, defcribcd in the compafs
of a fcwlines, and yet without the omiilionof any material circum-
ilance. So that the wife and equitable provilion of the ftatute
Weftm. 2. 13 Edw. I. c. 24. for framing new writs when want-
ed'% is almoft rendered ufeiefs by the very great perfedion of the
antient forms. And indeed I knov/ not whether it is a greater
credit to our laws, to have fuch a provifion contained in them^
or not to have occafion, or at leaft very rarely, to ufe it.

I N the times of our Saxon anceftors, the right of pofferiion
feems only to have been recoverable by writ of entry "" ; which
was then ufually brought in the county court. And it is to be
obferved, that the proceedings in thefe actions were not then fo
tedious, when the courts were held, and procefs iffued every
three weeks, as after the conqueft, when all caufes were drawn
into the king's courts, and procefs iffued from term to term ;
which was found exceeding dilatory, being at leaft four times a?
flow as the other. And hence a new remedy was invented in
many cafes, to do juftice to the people and to determine the
poffeiTion, in the proper counties, and yet by the king's judges.
This was the remedy by ajjife^ of which we are next to fpeak.

2. The v/rit o^ ajjlfe is fald to have been invented by Glanvil,
chief juftice to Plenry the Ibcond''; and, if fo, it feems to owe it's
introduclion to the parliament held at Northampton, in the twenty
fecond year of that prince's reign : when juftices in eyre were'
appointjed to go round the kingdom in order to take thefe aflifes j
and the aftifes themfelves (particularly thofe of ??jort d'anceflcr
and novel dijfsifm) were clearly pointed out and defcribcd \ As-

a writ

vv Seepag. jr. iniehnb.iit, die qua fuit vivus el mortuui \ et,

X Gill). Ten. 41. Jic:U recojnltiim fuerit, ita h.rrc(!:b:is ejus rcjTt-

y Mirror, c. j. §. i;. /uaut. §. lo. Jujiiti irii /lc»m,i regis faciant fieri

z §. 9- Si doniinus feodi negnt haeredih'js recognitioiiem dc dtfaifiiAs fatVts fuper ajp.fam, a

icfuiiBi fdifmnin ejujdem feodi, jujlitiarii do- tempore quo domir.us rex veiiit in AngUam frox-

mini regis faciuiit inde fieri recfgnitionem per in:e pofi pacem fnfiam inter ipfur}i et regem fi-

)tH legates homines, quakm fMfinam defunSius liumfuu'ii. (Spelin, Cod. 330 )

Ch. 10. Wrong s. 185

a writ of entry is a teal action, which difproves the title of tlie
tenant, by flicwing the unlawful commencement of his poflef-
lion ; fo an affife is a real action, which proves the title of the
demandant, merely by fliewing his, or his anceftor's, pofreflion ^ :
and thcfe two remedies are in all other refpe^ts fo totally alike,
that a judgment or recovery in one is a bar againll the other :
fo that when a man's poiTefllon is once eftablilhed by either of
thefe pofl'eflory acl:ions, it can never be difturbed by the fame
antagonift in any other of them. The word, ^JJlfe^ is derived by
fir Edvvard Coke '' from the Latin dJJlJeo, to lit together ; and
itiignities, originally, the jury who try the caufe, and lit toge-
ther for that purpofe. By a figure it is now made to fignify the
court or jurifdiclion, which fummons this jury together by a
commifilon ofafiife, or ad ajjifas capiendas ; and hence the judi-
cial afl'emblies held by the king's commillion in every county, as
well to take thefe writs of afiife, as to try caufes at nifi priiis^
arc termed in common fpecch the ajjifes. By another fomewhat
fimilar figure, the name of afiife is alfo applied to this aclion,
for recovering pofifeflion of lands : for the reafon, faith Little-
ton*", why fuch writs at the beginning were called afiifes, was,
for that in thefe writs the flieriff is ordered to fummon a jurv?
or afiife > v.-hich is not exprefied in any other original Vv'rit ''.

This remedy, by writ of afiife, is only applicable to tVv'o
fpecies of injury by oufier, viz. nhatement^ and a recent or no-
i'el dijjefin. If the abatement happened upon the death of the
demandant's father or mother, brother or fift:er, uncle or aunt,
nephew or neice, the remedy is by an afiife of mort d* ance/lor,
or the death of one's ancefi;or : and the general purport of this
writ is to direcl the flierift' to fammon a jury or afiife, to vievv-
the land in queftion, and to recognize whether fuch anceftor were
feifed thereof on the day of his death, and whether the de-
mandant be the next heir^ And, in a fhort time after, the
Vol. III. Z ji^^tlges

a Finch. L. 104, d Co. Lift, 1J9.

li 1 Inft. 153. c F. N. B. ii>5. Finch. L. 2,90.

i86 Private Book III.

judges ufually come down by the king's commlffion to take the
recognition of affife; when, if thcfe points are found in the af-
firmative, the law immediately transfers the poffeffion from the
tenant to the demandant. If the abatement happened on the
death of one's grandfather or grandmother, then an affife of jmrt
d' anceftor no longer lies, but a writ of ayle or de avo; if on the
death of the great grandfather or great grandmother, then a writ
of befayh, or de froavo\ but if it mounts one degree higher, to
the trefayle or grandfather's grandfather, or if the abatement hap-
pened upon the death of any collateral relation, other than thofe
before-mentioned, the writ is called a writ of cofinage, or de con-
fangu'ineo^. And the fame points fliall be enquired of in all thefe
anions anceftrel^ as in an allife of mort d' ancejlor ; they being of
the very flmie nature^: though they differ in this point of form
that thefe anceflrel writs (like all other writs oi praecipe) exprefs-
ly affcrt the demandant's title, (viz. the feifm of the anceftor at
his death, and his own right of inheritance) the affife afferts no^
thing diredly, but only prays an enquiry whether thofe points
befo*'. There is alfo another anceftrel writ, denomiaated a ww-
per obiil, to eflablifh an equal divifion of the land in queftion,
where on the death of an anceftor, who has feveral heirs, one
enters and holds the others out of pofteffion*. But a man is not
allowed to have any of thefe poffeffory actions for an abatement
confequent on the death of any collateral relation, beyond the
fourth degree''; though in the lineal afcent he may proceed ad
infij'itum '. For the law will not pay any regard to the pofleftion
of a collateral relation, fo very diftant as hardly to be any at all.

I T was always held to be law"", that where lands were devi-
fable in a man's laft will by the cuftom of the place, there an
affife of fnort d'ancejior did not lie. For, where lands were fo
devifable, the right of poffi^ffion could never be determined by

a pron

f Finch. L. xC6 , iCj. k Hale on F. N. B. ixi.

g Stat. Weflm. i. 13 Edvv. I. c. ic 1 Fitzh. Jbr. tit. ojluagc. 15.

h z Infl-. 399. m Hraflon. /. 4. dc ajjlf. juortis antccejfom.

\ ]^. N. B. 157. Finch. L. zoz. c. 13. §. 3. F. N. B, i])6.

Ch. lol Wrongs* 187

a procefs, which enquired only of thefe two points, the fciiin of
the anccftor, and the heirfhip of the demandant. And hence it
might be reafonable to conclude, that when the flatute of wills,
32 Hen. VIII. c. i. made all focagelands devifable, an aflife of mort
d* ^nce/Ior no longer cou\d be brought of lands held in {ociige'^ ;
and that now, fince the flatute 12 Car* II. c. 24. which converts
all tenures, a few only excepted, into free and common focage,
it fhould follow, that no aflifc of ??iort d' anceflor can be brought
of any lands in the kingdom ; but, in cafe of abatements, recourfe
mufl be properly had to the more antient writs of entry.

An aiTife of novels (or recent) dijfeifin is an a<5lion of the fame
nature with the aflife of mort d' anceflor before-mentioned, in
that herein the demandant's poffefllon muft be ihewn. But it
differs confiderably in other points, particularly in that it recites
a complaint by the demandant of the difleifin committed, in
terms of dire(?l averment ; whereupon the fheriff' is commanded
to refeife the land and all the chattels thereon, and keep the fame
in his cuflody till the arrival of the juftices of aflife ; (which
fince the introduction of giving damages, as well as the pofl^ef-
flon, is now omitted^) and in the mean time to fummon a jury
to view the premifes, and make recognition of the aflife before
thejufliices''. And if, upon the trial, the demandant can prove,
firfl:, a title ; next, his aclual feifln in confequence thereof; and,
lafl:Iy, his difl'eifm by the prefent tenant ; he fliall have judg-
ment to recover his feiiin, and damages for the injury fufl:ained.

The procefs of aflifes in general is called, by fl:atute Weftm. 2.
!-> Edw.I. c. 24./^y?/;zz<77/ remed'ium, in comparifon of that by a
writ of entry ; it not admitting of many dilatory pleas and pro-
ceedings, to which other real actions are fubje(5l''. Cofl:s and
damages were annexed to thefe poflTeiTory actions by the fl:atutc
ofGlocefter, 6 Edw. I. c. i. before which the tenant in pofl^ef-
fion was allowed to retain the intermediate profits of the land,

Z2 to

n See I Leon, i57. p F. N. B. 177,

o Booth. III. ■ q Booth. 16s.

1 88 Private Book III.

to enable lum to perform the feodal burthens hicident thereunto.
And, to prevent frequent and vexatious diifeifins, it is enacled
by the ftatute of Merton, 20 Hen. III. c. 3. that if a perfon
diffeifed recover feifin of the land again by afilfe of novel dijfeifin,
and be again diiTeifed of the iame tenements by the fame diflei-
for,he fhallhaveawrit of re-d'ijcifin', and, if he recover there-
in, the re-diileifor Ihall be imprifoned; and, by the ftatute of
Marlbridge, 52 Hen. 111. c. 8. iliall alfo pay a fine to the king;
to which the ftatute Weftm. 2. 13 Edw.I. c. 26. hath fuper-
added double damages to the party aggrieved. In like manner,
by the fame ftatute of Merton, when any lands or tenements are
recovered by afftfe ofmsrt d' a?2ce/Ior, or other jury, or any judg-
ment of the court, if the party be afterv/ards diffeifed by the
fame perfon againft whom judgment was obtained, he fhall have
a writ ot' pofi-di feifin againft him ; which fubjects the poft-diffei-
for to the film e penalties as a re-diffeifor. The reafon of all
which, as given by ftr Edward Coke', is becaufe fuch proceed -^
ino- is a contempt of the king's courts, and in defpite ot thelawj
or, as Bracton more fully exprcfies it% " talis qui ita conviclus
*' fuerit, dupliciter ddinquit contra regem : quia facit difeifinain et
«' roheriam contra pacem fuam ; et etiam aufu temerario irrita facit
*' ea quae in curia domini regis rite ad a fiint : et propter duplet
«' delidum merito jujlinere debet poenam duplicatam.''^

In all thcfe poffcffory actions there is a time of limitation
fettled, beyond which no man fliall avail himfelf of the poffef-
fion of himfelf or his anceftors, or take advantage of the wrong-
ful poffeflion of his adverfary. For if he be negligent for a long
and unreafon able time, the law refufes afterwards to lend him
any affiftance, to recover the poffefTion merely ; both to punifli
his neglect, (nam leges vigilantibus, non dorinientibus^ fubveniunt^
and alfo becaufe it is prefumed that the fuppofed wrongdoer has
in Xuch a length of time procured a legal title, othcrwife he
would fooner have been fued. This time of limitation by the fta-
tute of Merton, 20 Hen. 111. c. 8. and Weftm. i. 3 Edw. I. c. 39.

was

V a In(l. O3, 84. s /. 4. r. 4?.

Ch. lo. ^ Wrongs. i8p

\ras fucceflively dated from particular acras, viz. from the return
of king John from Ireland, and from the coronation, <&c. of
king Henry the third. But this date of limitation continued fo
long unaltered, that it became indeed no limitation at all, it be-
ing above three hundred years from Henry the third's coronation
to the year 1540, when the prefenc ftatute of limitations' was
made. This, inftead of limiting actions from the date of a par-
ticular event, as before, which in procefs of years grew abfurd,
took another and more direct courfe, which might endure for
ever ; by limiting a certain period, as fifty years for lands, and
the like period " for cuflomary or prefcriptive rents, fuits, and
fervices (for there is no time of limitation upon rents refer v^ed
by deed""") and enacting that no perfon fhould bring any pofl'ef-
fory action, to recover pofl'elllon thereof merely upon the ieifin,
or difpoiTefilon, of his anceftors, beyond fuch certain period.
And all writs, grounded upon the pofl'eflion of the demandant
liirnfelf, are directed tobefucd out within thirty years after the
dilleifin complained of; for if it be an older date, it can with
no propriety be called a frelh, recent, or novel dijfe'ifin : which
name fir Edward Coke informs us was originally given to this
proceeding, becaufe the difTeifm muft have be,en fmce the laft
pyre or circuit of the juftices, which happened once in feven.
years, otherwife the aftion was gone''. And we may obferve^.
that the limitation, prefcribed by Henry the fecond at the firfl
inftitution of the aflife of novel dijeijin, was from his own return
into England after the peace made between him and the young
king his fon j which was but the year before.

Wh a t has been here obferved may throw fome light on the
doctrine of remitter, Vv'hich we fpoke of in the fecond chapter

of

t ?» Hen. VIII. c. i. anvl other fuhfequent wiiteri Jiave foUowedj

u So Rerthelet's original edition of the malie it only /or/y years f?r reiits, &c,

ftatute, yl. D. 1540 : and Cay's, Pickering's, w 8 Rep. Cj.

and Ruffhead's editions, examined with the x i Infl. 1J3. Booth, no,

record. Raftell's, and other intermediate y See pag. 1S4,

editions, which fir Edward Coke (* Ifift. p5.)

!po ' Private Book III;

of this book^ ; and which, we may remember, was, where one
who hath a right to lands, but is out of poffeffion, hath after-
wards the freehold caft upon him by fomefubfequent defective title,
and enters by virtue of that title. In this cafe the law remits
him to his antient and more certain right, and by an equitable
fiction fuppofes him to have gained poffeflion in confequence, and
by virtue, thereof: and this, becaufe he cannot poiTibly obtain
judgment at law to be reftored to his prior right, fince he is him-
lelf the tenant of the land, and therefore hath nobody againll
whom to bring his action. This determination of the law might
feem fuperfluous to an hafty obferver ; who perhaps would ima-
gine, that fince the tenant hath now both the right and alfo the
poffeflion, it little fignifies by what means fuch pofTefTion fhall
be faid to be gained. But the wifdom of our antient law deter-
mined nothing in vain. As thetenant's poffeflion was gained by
a defective title, it was liable to be overturned by fhewing that
defect in a writ of entry ; and then he mufl have been driven to
his writ of right, to recover his juft inheritance : which would
have been doubly hard, becaufe, during the time he was him-
felf tenant, he could not eflablifh his prior title by any poffefTory
action. The law therefore remits him to his prior title, or puts
him in the fame condition as if he had recovered the land by writ
of entry. Without the remitter he would have had y«f, et fei-
finam, feparate; a good right, but a bad poffeflion : now, by
the remitter, he hath the moft perfect of all titles, ji{ris et feift*
nae conjiindiouem.

III. By thefe feveral poffefTory remedies the right of poffef-
fion may be reftored to him, that is unjuftly deprived thereof.
But the right oi pojejfion (though it carries with it a ftrong pre-
fumption) is not always conclufive evidence of the right oi pro^
^erty^ which may ftill fubfift in anotiier man. For, as one man
may have tht pojfejfio)!, and another the jight of pojjeffio?:^ which
is recovered by thefe poffefTory actions j fo one man may have

the

z See pag. 19.

Ch. 10. Wrongs. ipi

tht right of pojfejjjon^ and cannot therefore be evicted by any pof-
feflbry action, and another may have the right cf property^ which
cannot be otherwife afl'ertcd than by the great and final remedy
of a writ of right, or fuch correfpondent writs as are in the na-
ture of a writ of right.

This happens principally in four cafes: i. Upon difconti-
nuance by the alienation of tenant in tail: whereby he, who
had the right of polTeilion, hath transferred it to the alienee ;
and therefore his iiTue, or thofe in remainder or reverfion, fliall
not be allowed to recover by virtue of that pofTeflion, which the
tenant hath fo voluntarily transferred. 2. In cafe of judgment
given againft either party by his own default; or, 3. Upon trial of
the meritS5in any poileflbry action : for fuch judgment, if obtained
by him who hath not the true ownerfliip, is held to be a fpecies
of deforcement; which however binds the right of poffeflion, and
I'ufFers it not to be ever again difputed, unlefs the right of pro-
perty be alfo proved. 4. In cafe the demandant, who claims the
right, is barred from thefe pofl'efTory aclions by length of time
and the ilatute of limitations before-mentioned : for an undif^
turbed poffeflion, for fifty years, ought not to be devefi:cd by any
thing, but a very clear proof of the abfolute right of propriety.
In thefe four cafes the law applies the remedial inflrument of
either the writ of right itfelf, or fuch other writs, as are faid tq
be of the fame nature.

I. An D firfl, upon an alienation by tenant in tail, whereby
the eftate-tail is difcontinued, and the remainder or reverfion is
by failure of the particular eilate difplaced, and turned into a
mere right, the remedy is by action oi formedon^ (^fecundum for-
mam doni) which is in the nature of a writ of right % and is the
higheft action that tenant in tail can have"". For he cannot have
an abfolute writ of right, which is confined only to fuch as claim
in fee-fimple: and for that reafon this writ oi for me don was granted

hirri

a Finch. L. j57. V Co. Litt. 31a. *

1^2 Private Book III.

Iiini by the ftatutc de don'is or Weflm. 2.13 Edw. I. c. i. ^vhicli
is therefore emphatically called his writ of right'. This writ is
diftinguiihed into three fpecies ; 2. fovmedon in the defcerider, in
the remainder, and in the reverter. A writ qI for me don in the
defcender licth, where a gift in tail is made, and the tenant in
tail alienes the lands entailed, or is diffeifed of them, and dies ;
in thio cafe the heir in tail fhall have this writ oi forme don in
t\\Q defcender, to recover thefe land.s, io given in tail, againft him
who is then the aclual tenant of the freehold''. In which aflion
the demandant is bound to Itate the manner and form of the gift
in tail, and to -^vovchA^iiM hci'c fccundum for ma7n doni. Afor-
7iiedon in the remainder lieth, where a man giveth lands to an-
other for life or in tail, with remainder to a third perfon in tail
or in fee; and he who hath the particular eftate dieth, without
ilTue inheritable, and a ftranger intrudes upon him in remainder,
and keeps him out of poffeflion^ In this cafe the remainder-man
fhall have his writ of formedon in the remainder, wherein the
whole form of the gift is dated, and the happening of the event
upon which the remainder depended. This writ is not given in
cxprefs words by the ftatute de don'is ; but is founded upon the
equity of the ftatute, and upon this maxim in law, that if any
one hath a right to the land, he ought alfo to have an acfion to
recover it. h. formedon in the reverter lieth, where there is a gift
in tail, ?.nd afterwards by the death of the donee or his heirs with-
out ilTue of his body the reverflon falls in upon the donor, his
heirs, or afiigns : in fuch cafe the reverfioner fhall have this writ
to recover the lands, wherein he (liall fuggell the gift, his own
title to the reverfion minutely derived from the donor, and the
failure of iffue upon which his reverfion takes place *". This lay
at common law, before the ftatute de don'is, if the donee aliened
before he had performed the condition of the gift, by having
iffue, and afterwards died without any ^ The time of limitation
in 2. formedon by ftatute 2 i Jac. I. c. \6. is twenty years j within

which

c F. N. B. ijs, f Vo\i. zfp. 8 Rep. 88.

d JVtd. ill, jij. jT Finth. L. i08.

e ib'xi. HT.

Ch. 10. Wrongs. ip:?

which fpace of time after his title accrues, the demandant miift
bring his a(fi:ion, or elfe is for ever barred.

2. In the fecDnd cafe; if the owners of a particular eflate,.
as for life, in dower, by the curtcfy, or in fee-tail, are barred
of the right of polielTion by a recov^^ry had againft them, through
their default or non-appearance in a poflciTcry action, they were '
abfolutcly without any remedy at the common law ; as a writ of
right does not lie for any but fuch as claim to be tenants of the
fee-iimple. Therefore the ftatute Wcftm. 2. 13 Edw. I. c. ^.
gives a new writ for fucli perfons, after their lands have been fu
recovered againll them by default, called a quod ei deforccat ;
.which, thougli not fcriclly a wilt of right, fo far partakes of the

, nature of one, as that it will reRore the right to him, who has
been thus unwarily deforced by his own default''. But in cafe
the recovery were not had by his own default, but upon defence
in the inferior poilefiTory action, this fiiii remains final with re-
gard to thefe particular eftates, as at the common law: and
hence it is, that a comiiaon recovery (on a vvTif; of entry in the
pojl) had not by default of the tenant himfelf, but (after his
defence made and voucher of a third perfon to Warranty) by de-
fault of fuch vouchee, is now the ufual bar to cut off an eilate-
tail'.

3, 4. Thirdly, in cafe the right of poiTeilion be barred by a
recovery upon the merits in a poOeilbry action, or, laflly, by the
flatute of limitations, a claimant in fee-iimple may have a 7ncre
vjiit of right ', which is in it's nature the highed writ in the
law*", and lieth only of an eftate in fee-fmiple, and not for him
who hath a lefs edate. This writ lies concurrently with all other
real aclions, in which an eflate of fee-fimple may be recovered ;
and it alfo lies after them, being as it were an appeal to the mere
rio-ht, when judgment hath been had" as to the poiTeOion in an

Vol. III. A a inferior

h F. N B. i;s. , k F. N. B. I.

i See book IL rh. ai-i

Ip4 Private Book III.

inferior poffefTory aclion'. But thougli a writ of right may be
brought, where the demandant is entitled to the pofTeffion, yet
it rarely is advifablc to be brought in fueh cafes; as a more ex-
peditious and eafy remedy is had, without meddling with the
property, by proving the demandant's own, or his anceftor's, pof-
feflion,and their illegal ouiler, in one of the poiieiTory actions.
But, in cafe the right of poifeflion be loft by length of time, or
by judgment againd the true owner in one of thele inferior fuits,
there is no other choice: this is then the only remedy that can
be had ; and it is of fo forcible a nature, that it overcomes all
obllacles, and clears all objections that may have arifen to cloud
and obfcure the title. And, after ifliic once joined in a writ of
right, the judgment is abfolutely final ; fo that a recovery had
in this action may be pleaded in bar of any other claim or de-
mand "".

The pure, proper, or mere writ of right lies only, Vv'e have
faid, to recover lands in fee-fmiple, unjuilly withheld from the
true proprietor. But there are alfo fome other writs which are faid
to be hi the nature of a Vv'rit of right, becaufe their procefs and
proceedings do moftly (though not intirely) agree with the "writ
of right: but in fome of them the fee-hmple is not demanded;
and in others not land, but fome incorporeal hereditament. Some
of thefe have been already mentioned, as the writ of right of
dower ^ oiformcJom, &c : and the others will hereafter be taken
notice of, under their proper divifions. Nor is the mere writ of
right alone, or always, applicable to every cafe of a claim of lands
in fee-fimpie ; for it the lord's tenant in fee-fimple dies without
heir, whereby an efcheat accrues, the lord fliall have a writ of
efcheaVj which is in the nature of a writ of right". And if one
of two or more coparceners deforces the other, by ufurping the
fole poircflion, the party aggrieved fliall have a writ of right de
rationabiii parte "^i which may be grounded on the feifin of the

anceftor

! F. N. B. I. $. o Booth. 135.

m Ibid. 6. Co. Litt. 158, p F. N. B. 9.

M F. N. B. 143-

Cii. lo:

Wrongs.

195

anccflor at any time during his life ; whereas in a ntiper ohi'it
(which is a poflbflbry remedy'') he mull be feifcd at the time of
his death. Bat, waving thele and other minute diftinclions, let
us now return to the general writ of right.

Thi s writ ought to be firft brought in the court-baron' of
the lord, of whom the lands are holdcn j and then it is open or
patent : but if he holds no court, or hath waived his right, rc-
riijlt curiam fiia?n, it may be brought in the king's courts by writ
oi praecipe originally' ; and then it is a writ of right cloje'', being
directed to theflieriff and not the lord". Alfo, when one of the
king's immediate tenants in capite is deforced, his writ of right
is called a writ o^ praecipe in capite (the improper ufe of which, as
well as of the former ^r^^'c//'^, quia dominus remifit cziriain^{o as to
ouft the lord of his jurifdi(5i:ion,is reftrained by magna carta"^) and
being directed to the flieriff'and originally returnable in the king's
court, is alfo a writ of right clofe^. There is likewSfe a little
writ of right clofe, fecundiim confuetiidinem 7nanerii, which lies for
thekine's tenants in anticnt deraefne^'i and others of a fimilar
nature"", to try the right of their lands and tenements in the
court of the lord exclufively\ But the writ of right patent itfelf
may alfo at any time be removed into the county court, by writ of
tolt^, and from thence into the king's courts, by writ of pcne"^
or recordari facias, at the fuggeflion of either party that there is
a delay or defecl of juftice'^.

I N the progrefs of this aclion'", the demandant mufl allege
fome feifin of the lands and tenements in himfelf, or elfe in fome

A a 2 ' perfon

q See fag. \n6,

r Append. No. I. §. i.

s F. N. B. a Finch. L. 313.

t Boofh 91.

u Append. N". I. §. 4-

w c. 14.

X F. N. B.j.

y See book II. ch. 6.

z Kitchen, tit. copyhold.

a Brafl:()ii. /. i. c. 11. / 4. /r. i. c. 9. t',-'
tr. 3. c. J3. §. 9. Old Tenur. /. icinr en
fecagc. Old N. B. I. garde. & t, hriefc de rciia
clans. Y. N. B. II.

b Append. N". I, §. x.
c Ibid. §.3.
d F. N. B. 3, 4.
c Append. N°. I. §. S-

^9

6 Private Book III.

peifon, under whom he claims, and then derive the right from
the perfon fb fciied to himfetf ; to which the tenant may anfwer
by denying the demandant's right, and averring that he has more
right to hold the lands than the demandant has to demand them ;
which puts the demandant upon the proof of his title : in which
if he fails, or if the tenant can ihew a better, the demandant
and his heirs are perpetually barred of their claim ; but if he
can make it appear that his right is fuperior to the tenant's, he
fliali recover the land againft the tenant and his heirs for ever.
But even this writ of right, however fuperior to any other, can-
not be fued out at any diftance of time. For by the antient kw
no feifm could be alleged by the demandant, but from the time
of Henry the firft*" ; by the ftatute of Merton, 20 Hen. III. c. 8.
from the time of Henry the fecond ; by the flatute of Weftm. I.
3 Edw. I. c. 39. from the time of Richard the firft ; and nov/,
by flatute 32 Hen. VIII. c. 2. feifm in a writ of right ftiall be
within fixty years. So that the pofTeillon of lands in fec-fimple
uninterruptedly, for threefcore years, is at prefcnt a fuiEcient
title againft ajl the world j and cannot be impeached by any dor-
mant claim whatfoever.

I HAVE now gone through the feveral fpecies of injury by
c^ufter or difpoffeilion of the freehold, with the remedies appli-
cable to each. In confidering which I have been unavoidably
led to touch upon much obfolete and abftrufe learning, as it lies
intermixed with, and alone can explain the reafon of, thofe parts
of the law which are now more generally in ufe. For, without
contemplating the whole fabric together, it is impoflible to form
any clear idea of the meaning and connection of thofe disjointed
parts, which Hill form a conliderable branch of the modern law 5
fuch as the doflrine of entries and remitter, the levying of fines,
and the fuffering of common recoveries. Neither indeed is any
confiderablc part of that, which I have felecfled in this chapter
from a^iong the venerable monuments of our ancellors, fo abfo-

lutely

f Co. Liu, iu\.

Ch. 10. Wrongs. - 157

lutely antiquated as to be out o^ force, though they are certainly
out oi life: there being, it mull be owned, but a very few in-
ftances for more tJian a century paft of profecuting any real ac-
tion for land by writ of entry, njffe, formedon, writ of right, or
otherwife. The forms are indeed preferved in the pra<ftice of
common recoveries : hut they are forms, and nothing elfe ; for
which the very clerks that pafs them are feldom capable ta allign
the reafon. But the title of lands is now ufually tried upon ac-
tions of ejedment or trefpafs.

3fj8 Private Book IIL

Chapter the eleventh.

Of dispossession, or OUSTER, of
CHATTELS REAL.

AVING in the preceding chapter confidered with fonie
attention the leveral fpecies of injury by difpofTeffion or
oufter of the freehold, together with the regular and well-con-
nected fcheme of remedies by aftions real, which are given to
the fubject by the common law, either to recover the poffeffion
only, or clfe to recover at once the pofleflion, and alfo to eftablifh
the right of property ; the method which I there marked out
leads me next to confider injuries by oufter, or difpoffeffion, of
chattels real; that is to fay, by amoving the pofTeffion of the te-
nant either from an eftate by ftatute-merchant, ftatute-flaple,
or elegit ; or from an eftate for years.

I. Ouster, or amotion of polFelTion, from eftates held by
cither ftatute or elegit, is only liable to happen by a fpecies of
diffeifin, or turning out of the legal proprietor, before his eftate
is determined by railing the fum for which it is given him in
pledge. And for fuch oufter, though the eftate be merely a
chattel intereft, the owner fhall have the fame remedy as for an
injury to a freehold ; viz. by aftife of ?wve/ diffeifin''. But this
depends upon the feveral ftatutes, which create thcfe refpedive

interefts'',

a F. N. B, 179.

Ch. IT. ' Wrongs. ipp

interefts'', and which exprefsly provide and allow this remedy in
cafe of difpoffeflion. Upon which account it is that fir Edward
Coke obferves", that thefe tenants are faid to hold their eflates
ut liberwn tenementiim^ until their debts be paid : becaufe by the
ftatutcs they fliall have an aflife, as tenant of the freeliold fliall
have ; and in that rcfped they have the fimilitude of a free^
hold^

II. A s for oufler, or amotion of pofFeffion, from an eflate
for years; this happens only by a like kind of difleifin, ejection,
or turning out, of the tenant from the occupation of the land
during the continuance of his term. For this injury the law has
provided him with two remedies, according to the tircumftances
and fituation of the wrongdoer ; the writ of eject'ione firmae ;
w^hich lies againft any one, the leiTor, reverfioner, remainder-
man, or any ftranger, wdio is himfelf the wrongdoer and has
committed the injury complained of: and the writ of quare eje-
c'lt infra terminum ; which lies not againft the wrongdoer or ejec-
tor himfelf, but his feoffee or other perfon claiming under him,
Thefe are mixed actions, fomewh^t between real and perfonal ;
for therein are two things recovered, as well reftitution of the
term of years, as damages for the oufteror wrong.

I. A WRIT then of ejedwne frmae, or action of trefpafb* in
cjedment, lieth, where lands or tenements are let for a term of
years ; and afterwards the leffor, reverfioner, remainder-man, or
any ftranger, doth eject or ouft the leflTee of his term ^- In this
cafe he fliall have- this writ of ejedion, to call the defendant to
anfwer for entering on the lands fo demifed to the plaintiff for a
term that is not yet expired, and ejecting him ^ And by this
writ the plaintiff fliall recover back his term, or the remainder
of it, with damages.

Since

b Stat. Weftm. i. 13 Edw. I. c, 18. Stat. d Sgc book II. ch. 10.
ie mcrccitoribui, if Edw. lil. c. p. e F. N. B. lio.

c I Inft. 43. f See appcnJUj N°. II. . r.

20O

Private Book III.

Since the difufe of real actions, this mixed proceeding Is
become the common method of trying the title to lands or tene-
ments. It may not therefore be improper to delineate, with fome
degree of minutenefs, it's liiftory, the manner of it's procefs,
and the principles whereon it is grounded.

W E have before feen^y that the writ of covenant, for breach
of the contract contained in the leafe for years, was antiently the
only fpecific remedy for recovering againfl theleffor a term from
which he had ejected his leffee, together with damages for the
oufter. But if the leffee was ejected by a ftranger, claiming un-
der a title fuperior '^ to that of the leiior, or by a grantee of the
reverfiun, (v>'ho might at any time by a common recovery have
deilroyed the term') though the leffee might ftill maintain an
action of covenant againft the leffor, for non-performance of his
contract or leafe, yet he could not by any means recover the term
itfelf. If the ouder was committed by a mere ffrauf^er withoiiC
any title to the land, the leffor might indeed by a real action re-
cover poffefiion of the freehold, but the leffee had no other re-
medy againft the ejector but in damages, by a writ of ejeB. lone fir*
mae^ for the trefpafs committed In ejecting him from his farm\
But afterv.?ards, when the courts of equity began to oblige the
ejector to make a fpecific reRItution of the land to the party im-
mediately injured, the courts of lawalfo adopted the fame method
of doing complete juftlcc; and, in the profecution of a writ of
ejectment, introduced a fpecies of remedy not warranted by the
original writ nor prayed by the declaration (which go only for

dama'TCS

o

g ?ec pag. ISO. rccovcrerfon terme: quod tot a curia, cone:"':.

h F. N. r.. 145. , Et per Cclkuap, k comcn ley cji, Jon home . ?

i See hook II. cli. 5. oi«Jie defon tcrme per ejlranger, U avera cj::-

k P. 6. Rir. 11. EjeHioic firmne ve'fl q-ie twrie finv.ae vcrfiis cejiy que lay ctijie ; et fd

tin tiBlon dc trefpnfs en fon nature, et le plain- foil eii fie par/on le^or, Iriefe dc covenant; et

lifne recovcrafon terme que cjt n venir, nicnt fi par Icjjle cti grantee de revcrfion, bricfe de

plus q:ic en trefpnfs home recovcra dartiagcs pur covenant verfm fonlcjfor, et countcra efpedai'

trefpafs r.icnt fait, mes a fefcr ; ma il convient count, &r. (Fitz. xir. t. ejefl.firin. z.J
after par aRion de covenant al Cimcn law a

Ch. I r. Wrongs. 20 1

damages merely, and are filent as to any reflitiition) viz. ajudg-
ment to recover the term, and a writ of pofl'cffion thereupon K
This method feems to Ijave been fettled as early as the reign of
Edward IV "": though it hath been faid" to have firft begun un-
der Henry VII. becaufe it probably was then firft applied to it's
prefent principal ufe, that of trying the title to the land.

The better to apprehend the contrivance, whereby this end
iseSe^fed, we ni'uft recollecl that the remedy by eje<5lment is in
It's original an action brought by one who hath a leafe for years,
to repair the injury done him by difpofieflion. In order there-
fore to convert it into a method of trying titles to the frcehol.dj,
it is firft neceflary that the claimant do take poffeflion of the
lands, to empower him to conftitute a leffee for years, that may
be capable of receiving this injury of difpoffefiion. For it woufd
be an offence, called in our law mainfena?7ce, (of wluch in the
next book) to convey a title to another, when the grantor is not
in poffeflion of the land : and indeed it was doubted at firftj
whether this occafional poffeffion, taken merely for the purpofe
of conveying the title, excufed the leffbr from the legal guilt of
maintenance". When therefore a perfon, who hath right of
entry into lands, determines to acquire that poffeffion, which J3
wrongfully M'ithheld by the prefent tenant, he makes (as by law
he may) a formal entry on the premifes ; and being fo in pofTef-
iion of the foil, he there, upon the land, feals and delivers a
leafe for years to fome third perfon or lefTee : and, having thus
given him entry, leaves him in pofTeflion of the premifes. This
leffee is to ftay upon the land, till the prior tenant, or he who had
the previous poffeffion, enters thereon afrefli and oufts him ; or
till fome other perfon (either by accident or by agreement before-
hand) comes upon the land, and turns him out or ejects him.
Vol. III. Bb For

1 SceappcnJ. N'-^. II- §. jT' P^opi fi"- ^'^ damr^^es. (Bro. Ahr. t. quare cjecit infra,

m 7 Kdxu. IV. 6. Per Fairfax; ft home port terrmrmm. 6.)
ejeclioncyfirmae k plaintiff recoverafon tcrnie n F. N. B. zio.

que e'l arere, filicn come in quare ejecit infra o I Ch. Rep..appcnd, 39.

Urminitm ; et, ft md fiit nrere,, donqua tout

m

202 Private Book III.

For this injury the leffee is entitled to his action of ejeclment
againft the tenant, or this cafual ejedor, whichever it was that
oufted him, to recover back his term and damages. But where
this action is brought againft fuch a cafual ejector as is before
mentioned, and not againft the very tenant in polfeilion, the
court will not fufter the tenant to lofe his pofleilion without any
opportunity to defend it. Wherefore it is a ftanding rule, that
no plaintiff" ill all proceed in ejectment to recover lands againft a
cafual ejector, without notice given to the tenant in pofleilion (if
any there be) and making him a defendant if he pleafes. And
in order to maintain the action, the plaintiff"muft, in cafe of any
defence, make out four points before the court ; viz. title, leafe
entry, and oujler. Firft, he muft fhew a good title in his leflbr,
which brings the matter of right entirely before the court j then
that the leflbr, being feifed by virtue of fuch title, did make
|iim the leafe for the prefent term ; thirdly, that he, the leflee
or plaintiffs, did enter or take pofleilion in confequence of fuch
leafe ; and then, laftiy, that the defendant ovfted or cjefted him.
"Whereupon he ffiall have judgment to recover his term and
damages j and fliall, in confequence, have a writ of poffejjkn,
which the flieriff" is to execute, by delivering him the undiftur-
■ped and peaceable pofl'efiion of his tcrni.

This is the regular method of bringing an adion of ejecb^
xnent, in which the title of the leflbr comes collaterally and inci-
dentally before the court, in order to fliew the injury done to the
leflee by this oufter. This method muft be ftill continued in due
form and ftriclnefs, fave only as to the notice to the tenant,when-
ever the pofl'efllon is vacant, or there is no a6lual occupant of the
prcmifes ; and alfo in fome other cafes. But, as much trouble
and formality were found to attend the aclual making of the leafe^
entry and oufter, a new and more eafy method of trying titles by
■writ of ejectment, where there is any at^ual tenant or occupier
of the premifcs in difpute, was invented fomewhat more than a
century ago, by the lord chief juftice llolle, who then fat in the
court of upper bench j fo called during the exile of king Charles

the

CIi. II. Wrongs. 202

the fecond. This new method entirely depends upon a ftring of
legal fictions : no actual leafe is made, no aclual entry by the
plain tiiF, no actual oufter by the defendant; but all are merely
ideal, for the folc purpofe of trying the title. To this end, in
the proceedings'' a leafe for a term of years is flated to have beeil
made, by him who claims title, to the plaintiff who brings the
aclion ; as by John Ilogers to Richard Smith: which plaintiff
ought to be fome real perfon, and not merely an ideal fictitious
one who has no exiilcnce, as is frequently though unwarantably
praclifecr: it is alfo ftated that Smith, the lefl'ee, entered ; and
that the defendant William Stiles, who is called the cafual ejeftor,
oiifled him ; for which oufler he brings this a6lion. As foon as
this action is brought, and the complaint fully ftated in the de-
claration'^. Stiles, thecafual ejeclor,/or defendant, fends a writ-
ten notice to the tenant in poflefiion of the lands, as George Saun-
ders, informing him of the aclion brought by Richard Smith, and
tranfmitting him a copy of the declaration ; withall afluring him
that he. Stiles, the defendant, has no title at all to the premifes,
and fliall make no defence ; and therefore adviiing the tenant to
appear in court and defend his own title : otherwife he, the ca-
fual ejector, will fiiffer judgment to be had againft him ; and
thereby the aclual tenant Saunders will inevitably be turned out of
poirefnon\ On receipt of this friendly caution, if the tenant
in poffeffion, does not within a limited time apply to the court
to be admitted a defendant in the ftead of Stiles, he is fuppofed
to have no right at all; and, upon judgment being had againft
Stiles the cafual ejector, Saunders the real tenant will be turned
out of poffeilion by the fheriif.

But, if tjie tenant in 'polTelTion applies to be made a defen-
dant, it is allowed him upon this condition ; that he enter into
a rule of court' to confefs, at the trial of the caufe, three of the
four requifites for the maintenance of the plaintiff''s action ; viz»

B b 2 the

p See appendix N". H. 5- i, *• «" Append. N^. II. §. j*

ii a Mod. 300. s Ibiil.

t Ibid. §. 3.

2 ©4

Private Book 111.

the /^^ of Rogers the leffor, the entry oi Smith the plaintiff,
and his oiifter by Saunders himfelf, now made the defendant in-
ftead of Stiles: which requifites, as they are wholly fictitious,
fhould the defendant put the plaintiff to prove, he muft of courfe
be nonfuited for want of evidence ; but by fuch flipulated con-
feflion of leafe, entry, and oiijler, the trial will now ftand upoa
the merits of the title only. Th'is done, the declaration is altered
by inferting the name of George Saunders inftead of William
Stiles, arrd the caufe goes down to trial under the name of Smith
(the plaintiff) on the demife of Rogers, (the leffor) againft
Saunders, the new defendant. And therein the leffor of the
plaintiff is bound to make out a clear title, otherwife his ficli-
tious leffee cannot obtain judgment to have poffeflion of the
land for the term fuppofed to be granted. But, if the leffor,
makes out his title in a fatisfaclory manner, then judgment and
a writ of poffeffion ffiall go for Richard Smith the nominal plain-
tiff, who by this trial has proved the right of John Rogers his
fuppofed leffor. Yet, to prevent fraudulent recoveries of the
poffeffion, by collufion with the tenant of the land, all tenants
are obliged by ffatute ii Geo. II. c. 19. on pain of forfeiting
three years rent, to give notice to their landlords^ when ferved
with any declaration in eje6lment : and any landlord may by
leave of the court be made a co-defendant to the aftion ; which
indoed he had a right to demand, long before the provifion of
thi'S ffatute" : in like manner as (previous to the ffatute of
■\^effm. 2. c. 3.) if in a real action the tenant of the freehold
made default, the remainder-man or revcrfioner had a right to
come in and defend the poffeflion ; left, if judgment were had
againft the tenant ; the cftateof thofe behind fliould be turned
to a naked right'''. But if the new defendant fails to appear at
the trial, and to confcfs leafe, entry, and oufter, the plaintiff
Smith muft indeed be there nonfuited, for want of proving thofe
requifites; but judgment will in the end be entered againft the
(cafual ejeclor Stiles : for the condition on which Saunders was
admitted a defendant is broken, and therefore the phintiff is put

agam

\) 7 Mud. 70, S*lk. 157, \v Blazon. /. 5. c. 10. §. 14.

Ch. II. Wrongs. 205

again in the fame fituation as if he never had appeared at all ;
the confcquence of which (we have fecn) would have been, that
judgment, would have been entered for the plaintiff, and the (hq-
riff, by virtue of a writ for that purpofe, would have turned out
Saunders, and delivered poffeflion to Smith. The fame procefs
therefore as would have been had, provided no conditional rule
had been ever made, muft now be purfued as foon as the condi-
tion is broken. But execution fliall be ftayed, if any landlord
after the default of his tenant applies to be made a defendant, and
enters into the ufual rule, to confefs leafe, entry, and oufter''.

The damages recovered in thefe actions, though fcu'merly
their only intent, are now ufually ((ince the title has been con-
fidered as the principal queftion) very fmall and inadequate ;
amounting commonly to one fliilling or fome other trivial fum.
In order therefore to complete the remedy, when the polfefiion
has been long detained from him that has right, an action of
trefpafs alfo lies, after a recovery in ejectment to recover the
mefne profits which the tenant in poffeflion has wrongfully re-
ceived. Which action may be brought in the name of cither
the nominal plaintiff in the ejedment, or his leffor, againft the
tenant in poffeffion j whether he be made party to the ejectment,
or fuffers judgment to go by default^.

Such is the modern way, of obliquely bringing in queftion the
title to lands and tenements, in order to try it in this collateral
manner ; a method which is now univerfally adopted in almofl
every cafe. It is founded on the fame principle as the antient
writs of affife, being calculated to try the mere pofeffory title to
an eftate ; and hath fucceeded to thofe real actions, as being in-
finitely more convenient for attaining the end of juitice : becaufe
the form of the proceeding being intirely fictitious, il is wholly
in the power of the court to direct the application af that fiction,
fo as to prevent fraud and chicane, and evifcerate the very truth

of the title. The writ of ejedment and it's nominal parties (as

was

X Stat, ir Geo. II. c. 19. y 4 Burr. 6(3C,

2o6 Private Book III.

was refolved by all the jaclges^) are " judicially to be confidered
" as the fiditious form of an action, really brought by theleffor
*' of the plaintiff againd the tenant in poifeilion : invented, un-
" der the controll and power of the court, for the advancement
*' ofjuilice in many rcf:)ecls ; and to force the parties to go to
" trial on the merits, v/ithout being intangled in the nicety of
" pleadings on either fide."

But a v/rit of ejectment is net an adequate means to try the
title of ail eftates j for on thofe things, whereon an entry cannot
in fact be made, no entry ihail be fuppofed by any ficlion of the
parties. Therefore an ejeclment will not lie of an advowfon, a
rent, a common, or other incorporeal hereditament^; except for
tithes in the hands of lay appropriators, by the exprefs purview
of llatute 32 Hen. Vlll. c. 7. which doctrine hath fmce been ex-
tended by analogy to tithes in the hands of the clergy'': nor will
it lie in fuch cafes, where the entry of him that hath right isi
taken away by defcent,difcontinuance, twenty years dif-pofleilion,
oi: otherwife.

This adion of ejeclment is however rendered a very eafy
and expeditious remedy to landlords whofe tenants are in arrere,
by ilatute 4 G-o. II. c. 28. which enacts, that every landlord,'
who hath by his leafe a right of re-entry in cafe of non-payment
of rent, when half a year's rent is due, and no fuflicient diftrefs
is to be had, may ferve a declaration in ejectment on his tenant,
or fix the fame upon fome notorious part of the premifes, which
ihall be valid, without any formal re-entry or previous demand
of rent. And a recovery in fuch ejectment fliall be final and
concluiivc, both in law and equity, unlefs the rent and all colts
be paid or tendered within fix calendar months afterwards.

2. The writ of quate ejec'it infra tenn'uium lieth, by the an-
tient law, where the wrongdoer or ejector is not hinifelf in pofiTef-

fion

■z Mich. 3i Geo. II. 4 Burr. (5(38. b Cro. Car. 301. i Lord Raym. 78?.

a Brownl. lip. Cro. Car. 4JIJ. Stra. J4r

Ch. II. Wrongs. 207

fion of the lands, but another who claims under him. As v/hcrc
a man leafeth lands to another for years, and, after, thclcflor or
reveriioner entercth, and maketh a feoffment in fee, or for life, of
the fame lands to a (Irans^er : now the leffce cannot brinsr a writ
of ejeftione finnae or ejeclment againft the feoffee : bccaufe he
did not eject him, but the reverfioner : neither can he have any
fuch action to recover his term againfi the reverfioner, who did
ouft him ; becaufe he is not now in poffeffion. And upon that
account this writ was devifed, upon the equity of the ftatute
Weftm. 2. c. 24. as in a cafe where no adequate remedy was al-
ready provided ^ And the aftion is brought againft the feoffee
for deforcing, or keeping out, the original leffec during the conr
tinuance of his term : and herein, as in the ejeclment, the
plaintiff fhall recover fo much»of the term as remains, and alfa
damages for that portion of it, whereof he has-been unjuftly
deprived. But fince the introduction of fictitious ouflers, whereby
the title may be tried againft any tenant in poffeffion (by what
means foever he acquired it) this action is fallen into difufe.

c F. N. B. 1^8.

b8 Private Book III.

Chapter the twelfth*
Of trespass.

IN the two preceding chapters we have confidered fuch in-
juries to real property, as confifted in an oufter, or amotion
of the poflefilon. Thofe which i*femain to be difcufled are fuch
as may be offered to a man*s real property without any amotion
from it.

The fecond fpecies therefore of real injiirles, or wrongs that
affed: a man's lands, tenements,or hereditaments,is that of trefpafsi
Trefpafs, in it's largefl: and mofl extenfive fenfe, fignifies any
tranfgrefiion or offence againfl the law of nature, of fociety, or
of the country in which we live ; whether it relates to a man's
perfon, or his property. Therefore beating another is a trefpafs j
for which (as we have formerly feen) an action of trefpafs v'l et
armis\\\ affault and battery will lie: taking or detaining a man's
goods are refpeflively trefpaffesj for which an action of trefpafs
'vi et aniiis, or on the cafe in trover and converiion, is given by
the law : fo alfo non-performance of promifes or undertakings is
a trefpafs, upon which an action of trefpafs on the cafe in ajfiunpfit
is grv^unded : and, in general, any misfeafance, or a6l of one
man whereby another is injurioufly treated or damnified, is a
tranfgreffion, or trefpafs in it's largeft fenfe ; for which we have
already feen% that, whenever the act itfelf is dire^ly and imme-
diately

a See pag. ijj.

%

Ch. 12. '. Wrong s. 209

diately injurious to the pcrfbn or properly of another, and there-
fore necefTarily accompanied with Ibme force, an aftioii of tref-
pafs vi et ar?nis will lie ; but, if the injury is only confequential,
a fpccial adion of trefpafs on the cafe may be brought.

B u T in the limited and confined fenfe, in which we are at
prefent to confider it, it iignifles no more than an entry on an-
other man's ground without a lawful authority, and doing i^ome
damage, however inconfiderablc, to his real property. For the
right of meufu and tuum, or property, in lands being once efta-
bliflicd, it follows as a neceflary confequence, that this right
muic be exclufivej that is, that the owner may retain to him-
felf the fole ufe and occupation of his foil : every entry there-
fore thereon without the owner's leave, and efpecially if contrary^
to his exprefs order, is a trefpafs or tranfgrellion. The Roman
laws feem to have made a dirett prohibition neceffary, in order
to conflitute this injury: qui alienum fundum ingredittir, -potejl
" a domino, fi is praeriderit, prohiberi fie i?igraediatitr^ .** But the
law of England, juftly conlidering that much inconvenience
may happen to the owner, before he has an opportunity to for-
bid the entry, has carried the point much farther, and has
treated every entry upon another's lands, (unlefs by the owner's
leave, or in fome very particular cafes) as an injury or wrong,
for fatisfaclion of which an aclion of trefpafs will lie ; but de-
termines the quatitum of that fuisficlion, by confidering hoW
far the offence was wilful or inadvertent, and by efliqiating the
value of the actual damage fuitained.

Every unwarrantable entry on another's foil the law entitles
a trefpafs by breaki?2g his cloje ; the v/ords of the writ of trefpafs
commanding the defendant to fliev/ caufc, qiiare claufum querentis
fregit. For every man's land is in the eye of the law inclofed
and fet apart from his neighbour's: and that either by a vilible
and material fence, as one field is divided from another by a
hsdge; or, by an ideal invifible boundary, exifling only in th?
Vol. hi." C c contem-

b Inji. ». I. li.

2IO Private Book III.

contemplation of law, as when one man*s land adjoins to another's
in the fame field. And every fuch entry or breach of a man's
clofe carries neceflarily along with it fome damage or other : for
if no other fpecial lofs can be aiTigned, yet ftill the words of the
writ itfelf fpccify one general damage, viz, the treading down
and bruifing his herbage %

One muft have a property (either abfolute or temporary) in
the foil, and aflual poffeflion by entry, to be able to maintain an
a(5lion of trefpafs: or at leaft, it is requifite that the party have
a leafe and poffeflion of the vefture and herbage of the land**.
Thus if a meadow be divided annually among the parilhioners
by lot, then, after each perfon's feveral portion is allotted they
may be refpedively capable of maintaining an action for the
breach of their feveral clofes^; for they have an exclufive inte-
reft and freehold therein for the time. But before entry and
adual poffeffion,one cannot maintain an adion of trefpafs, though
he hath the freehold in law^ And therefore an heir before entry
cannot have this adion againft an abator; though a diffeifee
might have it againft a diffeifor, for the injury done by the dif-
feifin itfelf, at which time the plaintiff was feifed of the land:
but he cannot have it for any ad: done after the diffeifin, until
he hath gained poffeflion by re-entry, and then he may well
maintain it for the intermediate damage done; for after his re-
entry the law, by a kind of y^j po/l/i?}iinii, fuppofes the freehold
to have all along continued in him^. Neither by the common
law, in cafe of an intrufion or deforcement, could the party kept
out of poffeflion fue the wrongdoer by a mode of redrefs, which
was calculated merely for injuries committed againft the land
while in the pojjejjion of the owner. But by the Itatute 6 Ann,
c. i8. if a guardian or truftee for any infant, a hufband feifed
jure uxoris, or a perfon having any eftate or intereft determinable
Upon a life or lives, fhall, after the determination of their re-

fpeftive

c F. N. B. 87, 88. f X Roll. Abr. jjj.

d Dyer. a8s. i Roll. Abr. 549. g 11, Rep. j.

e Cro. Eliz. 411.

Ch. 12. Wrongs.

211

refpediveinterefts, hold over and continue in pofleflion of the
lands or tenements, they are now adjudged to be trefpaflbrs; and
the reverfioner or remainder-man may once in every year, by
motion to the court of chancery, procure the ceftuy que vie, to be
produced by the tenant of the land, or may enter thereon in cafe
of his refuflil or wilful negle<5l. And by the ftatutes of 4 Geo.
II. c. 28. and II Geo. II. c. 19. in cafe after the determinatioa
of any term of life, lives, or years, any perfon fliall wilfully hold
over the fame, the lefTor is entitled to recover by action of debt,
either a rent of double the annual value of the premifes, in cafe
he hlnifclf hath demanded and given notice in writing to deliver
the pofTeflion ; or elfe double the ufual rent, in cafe the notice of
quitting proceeds from any tenant having power to determine
his leafe, and he afterwards neglects to carry it into due exe«
cution.

A M A N is anfwerable for not only his own trefpafs, but that
of his cattle alfo: for if by his negligent keeping they flray
upon the land of another (and much more if he permits, or
drives them on) and they there tread down his neighbour's her-
bage, and fpoil his corn or his trees, this is a trefpafs for which
the owner muft anfwer in damages. And the law gives the party
injured a double remedy in this cafe ; by permitting him to dif-
trein the cattle thus damnge-f enfant^ or doing damage, till the
owner fliall make him fatisfadion ; or elfe bv leavincr him to the
common remedy in foro confentiofo, by action. And the action
that lies in either of thefc cafes, of trefpafs com.mitted upon an-
other's land either by a man himfclf or his cattle, is the aflion
of trefpafs v'l et amiis ; whereby a man is called upon to anfwer,
square vi d annis daufiim ipjius A, apud B. fregit, et blada ipjius
A. ad valent'iam centum Jol'idorum ibidem miper crefcentia cum qui-
bufdam averiis depaflus fuit^ cotuidcavit et confianpfd^ &c^: for
the law always couples the idea of force with that of intrufion
upon tlje property of another. And herein, if any unwarrant-

C c 2 able.

h Regijlr, 94.

212 Private Book III.

able aci: of the defendant or his beafts In coming -upon the land
be proved, it is an ad of trefpafs for which the plaintiff muft
recover fome damages i fuch however as the jury Ihall think .
proper to alTefs.

In trefpaffes of a permanent nature, where the injury is con-
tinually renewed (as by fpoiling or confuming the herbage with
the defendant's cattle) the declaration niay allege the injury to
have been committed by continuation from one given day to ano-
ther (which is called laying the adion with a continuando) and
the plaintiff fhall not be compelled to bring feparate actions for
every day's feparate oSence'. But where the trefpafs is by one
orfevcral acls, each of which terminates in itfelf, and being
once done cannot be done again, it cannot be laid with a continu-
ando ; yet if there be repeated acts of trefpafs committed, (as cut-
ting down a certain number of trees) they may be laid to be done,
not continually, but at divers days and times within a given
period'".

In fome cafes trefpafs is juftifiable ; or, rather, entry on an-
other's land or hnufe fhall not in thofe cafes be accounted tref-
pafs: as if a man comes there to demand or pay money, there
payable : or to execute, in a legal manner, the procefs of the
law. Alfo a man may juftify entering into an inn or public
houfe, without the leave of the owner, firft fpecially afked ; be-
caufe, when a man profefles the keeping of fuch inn or public
houfe, he thereby gives a general licence to any perfon to enter
his doors. So a landlord may juftify entering to diftrein for rent
a commoner to attend his cattle, comraoning on another's land ;
and a reverfioner, to fee if any v/afte be committed on the eftate ;
for the apparent necefiity of the thing'. Alfo it hath been faid,
that by^the common law and cuflom of England the poor are
allowed to enter and glean upon another's ground aft«r the har-

veft,

i I Roil. Ahr. JiJ. Lord Raym. 14.0. 7 Mod. 151.

kSalk. 638,639. Lord Raym. 8x3. i 8 Rei>. i4«.

Ch. 12. Wrongs. 213

veft, without being guilty of trefpafs"': which humane provi-
fion fecms borrowed from the mofaical law". In hke manner
the common law warrants the hunting of ravenons beads of
prey, as badgers and foxes, in another man's land ; becaufe the
deftroying fuch creatures is profitable to the public". But in cafes
where a man mifdcmeans himfelf, or make^ an ill ufe of the au-
thority with which the law cntrufts him, he fhall be accounted a
trefpafler (^/j initio:^ as if one comes into a tavern and will not
go out in a reafonable time, but tarries there all night contrary
to the inclinations of the owner j this wrongful adt fhall affe(ft
and have relation back even to his firft entry, and make the
whole a treipafs''. But a bare non-feafance, as not paying for
the wine he calls for, will not make him a trefpailerj for
this is only a breach of contract, for which the taverner fhall
havean adion of debt or affumpfit againft him^ So if a landlord
diftreined for rent, and \vilfully killed the diftrefs, this by the
common law made him a trefpaffer ab initio ^• and fo indeed
would any other irregularity have done, till theftatute 1 1 Geo. II.
c. 19. which enacls, that no fubfequent irregularity of the land-
lord fhall make his firft entry a trefpafs j but the party injured
fliall have a fpecial aftlon on the cafe for the real fpecific injury
fuftained, unlefs tender of amends hath been made. But ftill,
if a reverlioner, who enters on pretence of feeing w^afte, breaks
the houfe, or ftays there all night ; or if the commoner who
comes to tend his cattle, cuts down a tree j in thefe and fimilar
cafes the law judges that he entered for this unlawful purpofe,
and therefore, as the ad which dcmonftrates fuch his purpofe is
a trefpafs, he fhall be eflcemed a trefpaffer ab initis\ So alfo in
the cafe of hunting the fox or the badger, a man cannot juftify
breaking the foil, and digging him out of his earth ; for though

the

m Gilb. Ev. 153. Tnals per pah. ch. ij. p Finch. L. 47. Cro. Jac. 148.

pag.438. ' q a Roll. Abr. 5C1.

n Levit. c. 19. v. p. & c. 23. v. za. Dent. r 8 Rep. 147.

c. 14.. V. 19, &c. s Finch, L. 47,

o Cro. Jac. 3ii, t 8 Rep, i^i.

214 Private Book III.

the law warrants the hunting of fuch noxious animals for the
public good, yet it is held " that fuch things mull: be done in an
ordinary and ufual manner ; therefore, as there is an ordinary
courfe to kill them, viz. by hunting, the court held that the
digging for thern was unlawful,

A MAN may alfo juftifyin an action of trefpafs, on account
of the freehold and right of entry being in himfelf ; and this
defence brings the title of the eftate in queftion. This is there-
fore one of the ways devifed, iince thedifufe of real ad;ions, to
try the property of eftates ; though it is not fo ufual as that by
ejeftment, becaufe that, being now a mixed action, not only gives
damages for the ejefbion, but alfo poflellion of the land : whereas,
in trefpafs, which is merely a perfonal fuit, the right can be only
afcertained, but no poflellion delivered ; nothing being recovered
but damages for the wrong com-mitted,

I N order to prevent trifling and vexatious actions of trefpafs,
as well as other perfonal actions, it is (inter alia) enafted by
flatutes 43 Eliz.c. 6. and 22 and 23 Car. II. c. 9. §. 136. that
where thejury, who try an action of trefpafs, give lefs damages
than forty (lullings, the plaintiff' fhall be allowed no more cofts
than damages j unlefs the judge fliall certify under his hand that
the freehold or title of the land came chiefly in quefl:ion. But
this rule now admits of two exceptions more, which have beeij
made by fubfequent ftatutes. One is by fi:atute 8 & 9 W. Ill,
c. II. which enacfts, that in all actions of trefpafs, wherein it
fiiall appear that the trefpafs was wilful and malicious, and it Ue
fo certified by the judge, the plaintiff" fliall recover full cofts.
Every trefpafs is "juilful^ where the defendant has notice, and is
efpecially forewarned not to come on the land ; as every trefpafs
is malicious^ though the damage may not amount to forty fliiU
lings, \^'here the intent of the defendant plainly appears to be to

harrafs

u Cre. Jac. sax.

Ch. 12. Wrongs. 215

harrafs and diftrefs the plaintiff. The other exception is by (la-
tute 4 & 5 W. &: M. c. 23. which gives full cofts againft any
inferior tradefman, apprentice, or other diflblute perfon, who
is convicted of a trcfpafs in hawking, hunting, fiftiing, or
fowling upon another's land. Upon this ftatute it has been ad-
judged, that if a perfon be an inferior tradefman as a clothier
for inftance, it matters not what qualification he may have in
point of eftate j but, if he be guilty of fuch trcfpafs, he fliall be
liable to pay full cofts ''.

w LorU Raym. 149.

ai6 Private Book III.

Chapteji the thirtkenth.

Of NUSANCE.

A THIRD fpecles of real injuries to a man*s lands and
tenements, is by nufance. Nufanccj nocummtum^ or an-
noyance, lignifies any thing that worketh hurt, inconvenience,
or damage. And nuiances are of two kinds ; public or common
nufances, which affect the public, and are an annoyance to all
the king's fubjecls j for whicli reafon we mufl refer them to the
clafs of public wrongs, or crimes and mifdemefnors: ?,ud pri-
vate nufances J which are the objects of our prefent coniidera-
tion, and may be defined, any thing done to the hurt or annoy-
ance of the lands, tenements, or hereditaments of another *.
We will therefore, firft, mark out the feverai kinds of nufances,
and then their refpective remedies.

I. I N difcufTing the feverai kinds of nufances, we will confi-
der, firft, fuch nufances as may affect a man's corporeal heredi-
taments, and then thofe that may damage fuch as are incorporeal.

I. First, as to corporeal inheritances. If a man builds a
houfe fo clofe to mine that his roof overhangs my roof, and
throws the water off his roof upon mine, this is a nufance, for
which an action will lie**. Likewife to erect a houfe or other
buildings fo near to mine, that it Hops up my anticnt lights and

windows,

a fiuch. L. i8». F. N. B. 184.

Ch. tg. Wrongs* 217

windows, is a nunince of a fimilar nature*^. But in this latter
cafe it is neceflary that the windows be a?2tient, that is, have fub-
filied there time out of mind; ocherwife there is no injury done.
For he hath as nuich right to build a new edifice upon his ground,
as I have upon mine: fince every man may do what he pleafes
upon the upright or perpendicular of his own foil j and it was my
folly to build fo near another's ground '^ Alfo, if a perfon keeps
his hogs, or other noifome animals, fo near the houfe of anothei^
that the ftench of them incommodes him and makes the air un-
wholfome, this is an injurious nufance, as it tends to deprive
him of the ufe and benefit of his houfe^ A like injury is, if
one's neighbour fets up and exercifes any offenfive trade ; as a
tanner's, a tallowchandler's, or the like: for though thefe are
lawful and necefTary trades, yet they fhould be exercifed in re-
mote places; for the rule is, "7?f utere tuo, uf alienum mn lae-
" das:'" this therefore is an actionable nufance ^ So that the
iiufances which affect a man's dwelling may be reduced to thefe
three: i. Overhanging it; which is alfo a fpecies of trefpafs,
for ci/j'us eft folum ejus eft ufque ad coelum-. 2. Stopping antient
lights: and, 3. Corrupting the air with noifome fmells: for
light and air are two indifpenfable requifites to every dwelling.
But depriving one of a mere matter of pleafure, as of a fine
profpecl, by building a wall, or the like; this, as it abridges
nothing really convenient or necefTary, is no injury to the fufferer,
and is therefore not an actionable nufance*^.

A s to nufances to one*s lands : if one ere^bs a fmelting houfe
for lead fo near the land of another, that the vapor and fmoke
kills his corn and grafs, and damages his cattle therein, this is
held to be a nufance''. And by confequence it follows, that if
one does any other act, in itfelf lawful, which yet being done in
that place neceffarily tends to the damage of another's property,
it is a nufance: for it is incumbent on him to find feme other
Vol. hi. D d place

c 9 Rep. 58. f Cro. Car. 510.

d Cro. Eliz. iiS. Salk, 4jy. g 9 Rep. 58.

e J) Rep, j8. hi Roll. Abr. 8p.

2i8 Private Book III.

place to do that act, where it will be lefs offenfive. So alfo, if
iTiy neighbour, ought to fcour a ditch, and does not, whereby my
land is overflowed, this is an aclionable nufance'.

V/ I T H regard to other corporeal hereditaments: it is a nufance
to ftop or divert water that ufes to run to another's meadow or
mill'"; to corrupt or poifon a water-courfe, by ere6ling a dye-
lioufe or a lime-pit for the ufe of trade, in the upper part of the
flream'; or in Ihort to do any aft therein, that in it's confe-
quences mull; neceffarily tend to theprejudice of one's neighbour.
So clofely does the law of England enforce that excellent rule of
gofpel-morality, of " doing to others, as we would they fhould
*' do unto ourfelves.'*

2. As to incorporeal hereditaments, the law carries itfelf with
the fame equity. If I have a way, annexed to my eftate, acrofs
another's land, and he obftrufts me in the ufe of it, either by
totally flopping it, or putting logs acrofs it, or ploughing over it,
it is a nufance: for in the firll cafe I cannot enjoy my right at
all, and in the latter Icannotenjoy itfo commodioufly as I ought"".
Aifo, if 1 am entitled to hold a fair or market, and another per-
fon fets up a fair or market fo near mine that it does me a pre-
judice, it is a nufance to the freehold which I have in my mar-
ket or fair". But in order to make this out to be a nufance, it is
neceffary, i. That my market or fair be the elder, otherwife
the nufance lies at my own doqr. 2. That the market be erefted
within the third part of twenty miles from mine. For fir Mat-
thew Hale" conilrues the dieta^ or reafonable day's journey, mem-
tioned by Braclon*', to be twenty miles: as indeed it is ufually
underRood not only in our own law'', but alfo in the civil", from
which we probably borrowed it. So that if the new market be

not

5 Hale on F. N. B. 417. o on F. N. B. 184.

k F. N. B. 18, V. P /• 3- c. 16.

1 9 Rep. 59. 2 Roll. Ahr. 14T. 4 z Inft. %(it .

ni F. N. B. 183. 1 Roll. Abr. 140, r Ff. a. n. z.
ii r. N. B. 184. % Roll. Abr. 140.

Ch. 13. Wrong s. 219

not within feven miles of the old one it is no nufance: for it is
held rcafonable that every man fliould have a market within on^;
third of a day's journey from his own homcj that, the day be-
in^ divided into three parts, he may fpend one part in going,
another in returning, and the third in tranfacling his neccfTary
bufmefs there. If fuch market or fair be on the fame day with
mine, it \s frma facie -X nufance to mine, and there needs no
proof of it, but the law will intend it to be fo: but if it be on
any other day, it 7nay be a nufance; though whether it is fo or
not, cannot be intended or prefumed, but I muil make proof of
it to thejury. If a ferry is erected on a river, fo near another
antient ferry as to draw away it's cuflom, it is a nufance to the
ovv^ier of the old one. For where there is a ferry by prefcrip-
tion, the owner is bound to keep it always in repair and readi-
nefs, for the eafe of all the king's fubjeclsj otherwife he may
be grievoufly amerced^: it would be therefore extremely hard
if a new ferry were fuffered to fhare his profits, which does not
alfo fliare his burthen. But, where the reafon ceafes, the law
alfo ceafes with it: therefore it is no nufance to erect a mill fo
near mine, as to draw away the cuflom, unlefs the miller alfo
intercepts the water. Neither is it a nufance to fet up any trade
or a fchool, in neighbourhood or rivalfl:iip with another : for by
fuch emulation the public are like to be gainers ; and, if the new
mill or fchool occalion a damage to the old one, it is da?nnum
ah f que injuria'^ ^

II. Let us n^xt attend to the remedies, which the law has
given for this injury of nufance. And here I mufl premife that
the law gives no private remedy for any thing but a private
wrong. Therefore no adion lies for a public or common nu-
fance, but an indictment only : becaufe the damage being com-
mon to all the king's fubjects, no one can affign his particular
proportion of it ; or, if he could, it would be extremely hard,
if every fubject in the kingdom were allowed to harrafs the of-
fender with feparate actions. For this reafon, no perfon, natural

D d 2 or

s A Roll. Abr, 140. t Hale onf, N. B. JS4,

220

Private Book III.

or corporate, can have an action for a public nufance, or punilh
it ; but only the king in his public capacity of fupreme gover-
nor, and pater-fam'iUas of the kingdom ". Yet this rule admits
of one exception; where a private perfon fuffers fome extraor-
dinary damage, beyond the reft of the king*s fubjecls, by a public
nufance : in which cafe he fhall have a private fatisfacVion by
adlion. As if, by means of a ditch dug acrofs a public way,
which is a common nufance, a man or his horfe fuffer any injury
by falling therein ; there, for this particular damage, which is
not common to others, the party fhall have his aftion "'. Alio if
a man hath abated, or removed, a nufance which oiTended him
(as we may remember it was Itated, in the lirft chapter of this
book, that the party injured hath a right to do) in this cafe he is
entitled to no action''. For he had choice of two remedies;
either without fuit, by abating it himfelf, by his own mere ad
and authority; or by fuit, in which he may both recover damages,
and remove it by the aid of the law : but, having made his elec-
tion of one remedy, he is totally precluded from the other.

The remedies by fuit, are i . By action on the cafe for
damages; in which the party injured fhall only recover a fatis-
fadion for the injury fuftained; but cannot thereby remove the
nufance. Indeed every continuance of a nufance is held to be a
frelh one^; and therefore a freili adion will lie, and very ex-
emplary damages will probably be given, if, after one verdidj:
againft him, the defendant has the hardinefs to continue it. Yet
the founders of the law of England did not rely upon probabilir
ties merely, in order to give reHef to the injured. They have
therefore provided two other actions; the aj/ife of nufance, and
the writ of quod permlttat projiernere : which not only give the
plaintiff fatisfaclion for his injury pafl, but alfo ftrike at the root
and remove the caufe itfclf, the nufance that occafioned the in-
jury. Thefe two adions however can only be brought by the

tenant

\\ Vaugh. 341. 341. X 0 Rfp- SS'

W Co. Litt/s<J. J R<p. 73. y a Leon. pi. lap. Cro. Eliz. 40*.

Ch. 13. Wrongs. 221

tenant of the freehold ; fo that a lelTec for years is confined to
his action upon the cafe^.

2. A N affife of nu fame is a writ, wherein it is flated that the
party injured complains of fome particular fact done, ad nocu-
mentum liberi tenementifui, and therefore commanding the flieriff
to fummon an affife, that is, a jury, and view the premifes, and
have them at the next commiffion of affifes, that juftice may be
done therein": and, if the affife is found for the plaintiff, he
fliall have judgment of two things; i. To have the nufancc
abated; and 2. To recover damages''. Formerly an affife of
nufance only lay againft the very wrongdoer himfelf who levied
or did, the nufance ; and did not lie againft any perfon to whon;
he had aliened the tenements, whereon the nufance was fituated.
This was the immediate reafon for making that equitable provi-
fion in ftatute Weftm. 2. 13 Edw. I. c. 24. for granting a limi-
lar writ, in cafu confimUi^ where no former precedent was to be
found. The ftatute enacts, that " de caetero non recedant queren-
" tes a curia domini regis, pro eo quod tenemeritum transfertur de um
«' in aliujii;'' and then gives the form of a new writ in this cafe:
which only differs from the old one in this, that, where the af-
fife is brought againft the very, perfon only who levied the nu-
fance, it is laid, " quod A. (the wrongdoer) injufle lev avit tale
«' nocumentuni'y' but, where the lands are aliened to another
perfon, the complaint is againft both ; " quod A. (the wrongdoer)
" et B. (the aliene) levaverunf" '* For every continuation, as was
before faid, is a frefli nufance ; and therefore the complaint is as
well grounded againft the alienee who continues it, as againft
the alienor who firft levied it.

3. Before this ftatute, the party injured, upon any aliena-
tion of the land wherein the nufance was fet up, was driven to
his quod permittat proflernere ; which is in the nature of a writ of

right

z Finch. L. 189., b 9 Rep. 5^-

a F. N. 15. 183. c ibid. ^

222 Private Book III.

right, and therefore fubjecb to greater delays ''. This is a writ
commanding the defendant to permit the plaintiff to abate, quod
permit t at -projlernere^ the nufance complained of; and, unlefs he
fo permits, to fummon him to appear in court, and fhew caiife
why he will not% And this writ lies as well /or the alienee of
the party firft injured, as aga'injl the alienee of the party firft
injuring ; as hath been determined by all the judges ^ And the
plaintiff Ihall have judgment herein to abate the nufance, and
to recover damages againft the defendant.

Both thefe actions, of ajfife of nufance, and of quod permittat
froflernere, are now out of ufe, and have given way to the action
on the cafe ; in which, as was before obferved, no judgment can
be had to abate the nufance, but only to recover damages. Yet
as therein it is not neceffary that the freehold fliould be in the
plaintiff and defendant refpectively, as it muft be in thefe real
actions, but it is maintainable by one that hath poffeflion only,
againft another that hath like poffeffion, the procefs is therefore
eafier : and the effect will be much the fame, unlefs a man has
a very obftinate as well as an ill-natured neighbour ; who had
rather continue to pay damages, than remove his nufance. For
in fuch cafe, recourfe muft at laft be had to the old and fure re-
medies, which will effedually conquer the defendant's perverfe-
jnefs, by fending the ftieriff with his pjfe comm'itatus, or power of
the county, to level it.

a a Inft. 405. f 5 Rep. les, loi.

ef. N. C. i;(4.

Ch. 14 Wrongs. 223

Chapter the fourteenth.
Of waste.

THE fourth fpecies of injury, that may be offered to one^s
real property, is by wdjle, or deftruction in lands and te-
nements. What fiiail be called wafte was conlidered at large in
a former volume % as it was a means of forfeiture, and thereby
of transferring the property of real eftates. I fhall therefore here
only beg leave to remind the ftudent, that wafle is a fpoil and
deftruclion of the eflate, either in houfes, woods, or lands ; by
demolifliing not the temporary profits only, but the very fubftance
of the thing; thereby rendering it wild and defolate: which the
common law expreffes very lignificantly by the word vajfum'. and
that this vajlum^ or wafte, is either voluntary or permiflive ; the
one by an actual and defigned demolition of the lands, woods, and
houfes ; the other arifmg from mere negligence, and want of
fufficient care in reparations, fences, and the like. So that my
only^bufmefs is at prefent to fhew, to whom this wafte is an in-
jury; and of courfe who is entitled to any, and what, remedy
by aclion,

I. The perfons, who may be injured by wafte, are fuch as
have fome interefl in the eftate wafted : for if a man be the ab-
lolute tenant in fee-ftmple, without any incumbrance or charge
on the premifes, he may commit whatever wafte his own indif-

cretion

a See Vol. TI. ch. 18,

2 24 Private Book III.

cretlon may prompt him to, without being impeachable or ac-
countable for it to any one. And though his heir is fure to be
the fufferer, yet ne?no efi baeres vhentis : no man is certain of
fucceedino- him, as well on account of the uncertainty which
fhall die firft, as alfo becaufe he has it in his own power to con-
ftitute what heir he pleafes, according to the civil law notion of
an haeres natus and an haeres faflus ; or, in the more accurate
phrafeology of our Englifh law, he may aliene or devife his ef-
tate to whomever he thinks proper, and by fuch alienation or
devife may difmherit his heir at law. Into whofe hands foever
therefore the eftate wafted comes, after a tenant in fee-fimple,
though the wafte is undoubtedly damnum^ it is damnum abfque
injuria.

One fpecies of interefi, which is injured by wafte, is that of
a perfon who has a right of common in the place wafted j efpe-
cially if it be common of eftovers^ or a right of cutting and
carrying away wood for houfe-bote, plough-bote, 'b'c. Here, if
the owner of the wood demolifhes the whole wood, and thereby
deftroys all poflibility of taking eftovers, this is an injury to
the commoner, amounting to no lefs than a dilTeilin of his com-
ttion of eftovers, if he choofes fo to confider it ; for which he
has his remedy to recover polleftion and damages by alTife, if in-
titled to a freehold in fuch common: but if he has only a chat-
tel intereft, then he can only recover damages by an adion on
the cafe for this wafte and dcftruclion of the woods, out of which
his eftovers were to ifTue ''.

But the moft ufual and important intereft, that is hurt by
this commiflion of wafte, is that of him who hath the remain-
der or reverfion of the inheritance, after a particular eftate for
life or years in being. HerCj if the particular tenant, (be it the
tenant in dower or by curtefy, who was anfwerable for wafte at
the common law*", or the leiTce for life or years, who was lirft

jnade

b F. N. R. 5p. pRcp. iij. c i Infl. zpp.

Ch. 14. Wrongs. 225

made liable by the llatutes of Marlbiidgc'' and of Glocefler^) if
the particular tenant, I lay, commits or fufFcrs any wallc, it is a
manifell injury to him that has the inheritance, as it tends to
mangle and difmcmber it of it's moft defirable incidents and or-
naments, among which timber and houfes may jullJy be reckoned
the principal. To him therefore in remainder or reveriion the
law hath given a remedy ; that is, to him to whom the inberit-
a?ice appertains in expectancy ^. For he, who hath the remainder
for life only, is not entitled to lae. for waile ; iince hisintereft may
never perhaps come into pofleffion, and then he hath fuifered no
injury. Yet a parfon, vicar, arch-deacon, prebendary, and the
like, whoarefeifed in right of their churches of any remainder
or reveriion, may have an adion of walle-, for they, in many
cafes, have for the benefit of the church and of the fucceflbr a
fee-fimpie qualifie'd : and yet, as they are not feifed in their own
right, the writ of wafte Ihall not fay, ad exhaeredat'ionetn ipfius,
as for other tenants in fee-fmiple ; but ad exhaeredatioium cccU^
fiae^ in whofe right the fee-fimple'is holden ^

II. The redrefs for this injury of wafte is of two kinds,
preventive, and corrective : the former of which is by writ o^
eflrepemeiit, the latter by that oiwafle.

I. EsTREPEMENT is an old Frcuch word, fignrfying the
fame as wafte or extirpation : and the writ of eflrepement lay at
the common law, after judgment obtained in any aclion real'',
and before polTeiTion was delivered by the flieriff; to ftop any
wafte which the vanquiftied party might be tempted to commit
in lands,ri^vhich were determined to be no longer his. But, as
in fome cafes the demandant may be juftly apprehenfive, that
the tenant may make wafte or ejlrepement pending the fuit, well
knowing the weaknefs of his title, therefore the ftatute of Glo-
■cefter' gave* another writ of efirepeiiient, pendente placito^ com-
VoL. III. E e manding

A 5i Hen. III. c. 13. g JbU. ^41.

e 6 Edw, I. c. 5. 1, I In». 318.

f Ce. Lift. S3- ■ i 6 Edw. I. c. 13.

226 Private Book III.

manding the fherlff firmly to inhibit the tenant " nefac'iat vaf-
*' turn 'del e/l rep amentum -pendente placito dido itidifcuJfo^J'* And,
by virtue of either of thefc writs the fherifF may refift them that
do, or offer to do, wafle ; and, if otherwife he cannot prevent
thefn, he may lawfully imprifon the wafters, or make a warrant
to others to imprifon them : or, if necellity require, he may take
the pojfe comitatus to his 2i(iii\2iViCQ. So odious in the fight of the
law is wafte and defi:ru6lion '. In fuing out thefe two writs this
difference was formerly obferved ; that in actions merely poffef-
fory, where no damages are recovered, a writ oi eftrepement might
be had at any time pendente lite, nay even at the time of fuing
out the original writ, or firfl procefs : but, in an adion where
damages were recovered, the demandant could only have a writ
of eftrepement^ if he was apprehenfive of wafte after verdict had",
for, with regard to wafle done before the verdict was given, it was
prefumed the jury would confider that in affefling the quantum
of damages. But now it feems to be held, by an equitable con-
ftruclion of theflatute of Glocefter, and in advancement of the
remedy, that a writ o'i eftrepement, to prevent wafte, may be had
in every ftage, as well of fuch actions wherein damages are re-
covered, as of thofe wherein only pofTeflion is had of the lands:
for peradventure, faith the law, the tenant may not be of ability
to fatisfy the demandant his full damages". And therefore now,
in an action of wafte itfelf, to recover the place wafted and alfo
damages, a writ of eftrepement will lie, as well before as after
judgment. For the plaintiff cannot recover damages for more
wafte than is contained in his original complaint : neither is he
at liberty to aflign or give in evidence any wafte made after the
fuing out of the writ : it is therefore reafonablc that he fliould
have this ysivitoi preventive yx^xzt, fince he is in his prefent fuit
debarred of any farther remedial ", If a writ of eftrepement, forbid-
ding wafte, be directed and delivered to the tenant himfelf, as it may
be, and he afterwards proceeds to commit wafte, an a<5tion may

be

k Regil, 77. n lUd. 61.

1 1 Infl. 319. o J Rep. lift

xn F. N. JB. 60, Ci.

Chap. 14. Wrongs. 227

be carried on upon the foundation of this writ; wherein the only-
plea of the tenant can be, non fecit vajlum contra prohtb'>tione?n :
and, if upon verdid it be found that he did, the plaintiff may
recover cofts and damages'' ; or the party may proceed to puniUi
the defendant for the contempt: for if, after the writ direcled
and delivered to the tenant or his fervants, they proceed to com-
mit wafle, the court will imprifon them for this contempt of the
writ". But not fo, if it be direcled to the flieriff, for then it is
incumbent upon him to prevent the ejlrefement abfolutely, even
by raifing \\\tfoJj'ecomitalus^ if it can be done no other way.

Besides this preventive redrefs at common law, the courts
of equity, upon bill exhibited therein, complaining of wafle and
deftruclion, will grant an injunction or order to flay wafle, until
the defendant fliall have put in his anfwer, and the court fhall
thereupon make farther order. Which is. now become the moft
ufual way of preventing wafte.

2, A WRIT of w^^ is alfo an adion, partly founded upon the
common law and partly upon the flatute of Glocefter'' ; and may
be brought by him who hath the immediate eftate of inheritance
in reverlion or remainder, againfl the tenant for life, tenant in
dower, tenant by the curtefy, or tenant for years. This action is
alfo maintainable in purfuance of flatute'Weflm. 2. by one tenant
in common of the inheritance againfl another, who makes wafle
in the efiate holden in common. The equity of which flatute ex-
tends to joint-tenants, but not to coparceners : becaufe by the old
law coparceners might make partition, whenever either of them
thought proper, and thereby prevent future wafte, but tenants
in common and joint-tenants could not; and therefore the fta-
tute o-ave them this remedy, compelling the defendant either to
make partition, and take the place wafted to his own fliare, or
to give fecurity not to commit any farther wafte'. But thel'e te^

E e 2 Hants

p Moor. 100. s 13 Edw. T. c. u.

^ Hob- 8j. . • t i laft.403, 404.

T 6 Edw. I. c, J.

228 Private Book III.

Hants in common and joint-tenants are not liable to the penal-
ties of the ft: tute of Glocefter, which extends only to fuch as
have life-eftates, and do wafte to the prejudice of the inherit-
ance. The wafte however mufi: be fomething confiderable ; for
if it amount orily to twelve pence, or fome fuch petty fum, the
plaintilTfhali not recover in an action of wafte; nam de mi?wnis
nm curat lex"".

This action of wafte is a mixed action; partly real, fo far
as it recovers land, and partly perfonal, fofaras it recovers
damages. For it is brought for both thofe purpofes ; and, if
the wafte bje proved, the plaintiff fliall recover the thing or place
wafted, and alfo treble damages by the ftatute of Glocefter. The
writ of wafte calls upon the tenant to appear and fhew caufe,
why he hath committed wafte and deftruction in the place named,
ad exhaeredationem, to the diiinherifon, of the plaintiff'''. And
if the defendant makes default, or does not appear at the day
affigned him, then the flieriff is to take with him a jury of
twelve men, and go in perfon to the place alleged to be wafted,
and there enquire of the wafte done, and the damages ; and
make a, return or report of the fame to the court, upon which
report the judgment is founded''. For the law will not fuffer (o
heavy a judgment, as the forfeiture and treble damages, to be
paffed upon a mere default, without full affurance that the fact
is according as it is ftated in the writ. But if the defendant
appears to the writ, and afterwards fuffers judgment to go agaioft
him by default, or upon a nihil dicet, (when he makes no an-
fwer, puts in no plea, in defence) this amounts to a confeftion
of the wafte; ftnce, having once appeared, he cannot now pre-
tend ignorance of the charge. Now therefore the Iheriff fhall
not go to the place to enquire of the fact, whether any wafte
has, or has not, been committed ; for this is already afccrtained
by the filent confeffion of the defendant : but he Ihall only, ^s
in defaults upon other actions, make enquiry of the quantum of

■ damages

u Finch. L. 1?. X I'oph. 24,

w F. N. B. ■S5«

Ch. 14, Wrongs. 229

dama£Tcs^ The defendant, on the trial, may give in evidence
any thing that proves there was no wafte committed, as that the
dellruftion happened by lightning, tcmpeii:, the king's enemies,
or other inevitable accident\ But it is no defence to fay, that a
ftranger did the wafte, for againft him the plaintiff has no re-
medy : though the defendant is intitled to fue fuch ftranger in an
adion of trefpafs vi et annis, and ihall recover the damages he
has fuflered in confequence of fuch unlawful ad*.

When the wafte and damages are thus afcertained, either
by confeflion, verdid, or enquiry of the fheriff, judgment is
given, in purfuance of the ftatute of Glocefter, c. 5. that the
plaintiff (iiall recover the place wafted ; for which he has im-
mediately a writ o^ feifm, provided the particular eftate be ftill
fubftfting, (for, if it be expired, there can be no forfeiture of the
land) and alfo that the plaintiff fhall recover treble the damages
affeffed by the jury ; which he muft obtain in the fame manner
as all other damages, in actions perfonal and mixed, are obtained,
whether the particular eftate be expired, or ftiill in being,

y Cro. Eliz. i8, 190. a 'La.w o£ nifi prius. m,

55 Co, Litt. S3.

230 Private Book^ III,

Chapter the fifteenth,
Of subtraction.

UBTR action, which is the fifth fpecies of injuries af-
feeling a man's real property, happens, when any perfon
who owes any fuit, duty, cuftom, or fervice to another, with-
draws or neglecls to perform it. It differs from a diffeifin, in
that this is committed without any denial of the right, confift-
ing merely in non-performance ; that ftrikcs at the very title of
theparty injured, and amounts to an oufter oraftualdifpoffeflion.
Subtraction however, being clearly an injury, is remediable by
due courfe of law : but the remedy differs according to the na-
ture of the fervices ; whether they be due by virtue of any te-
nure, or by cuftom only.

I. Fealty, fuit of court, and rent, are duties and fervices
ufually iffuing and arifing ratione tenurae^ being the conditions
upon which the antient lords granted out their lands to their feu-
datories: wherebyit wasftipulated, thatthey and their heirs fhould
take the oath of fealty or fidelity to their lord, which was the feo-
dal bond qx commune vinculum between lord and tenant ; that they
fliould do fuit, or duly attend and follow the lord's courts, and
there from time to time give their afliftance, by ferving on juries,
either to decide the property of their neighbours in the court-
baron, or corred their mifdemefnors in the court-leet ; and,
laftly, that they fliould yield to the lord certain annual ftated
returns, in military attendance, in provifions, in arms, in mat-
ters of ornament or pleafure, in ruftic employments or praedial
^ ' labours,

Ch. 15- Wrongs. 231

labours, or (which is injlar omniimi) in money, which will pro-
vide all the reft ; all which are comprized under the one general
name of reditus, return, or rent. And the fubtraclion or non-
obfervance of any of thefe conditions, by negleding to fwear
fealty, to dofuit of court, or to render the rent or fervice refer-
ved, is an injury to the freehold of the lord, by diminifhing and
depreciating the value of his feignory.

The general remedy for all thefe is by dijlrefs ; and it is the
only remedy at the common law for the two firft of them. The
nature of diftrelTes, their incidents and confequences, we have
before more than once explained ^ : it may here fuffice to remem-
ber, that they area taking ofbeafts, or other perfonal property,
by way of pledge to enforce the performance of fomething due
from the party diftreined upon. And for the moft part it is pro-
vided that diftrelTes be reafonable and moderate ; but, in the cafe
of diftrefs for fealty or fuit of court, no diftrefs can be unrea-
fonable, immoderate, or too large '': for this is the only remedy
to which the party aggrieved is intitled, and therefore it ought
to be fuch as is fufliciently compulfory ; and, be it of what value
it will, there is no harm done, efpecially as it cannot be fold or
made away with, but muft be reftored immediately on fatisfac-
tion made. A diftrefs of this nature, that has no bounds with
regard to it's quantity, and may be repeated from time to time
until the ftubbornnefs of the party is conquered, is called a dif-
trefs infinite ; which is llfo ufed for fome other purpofes, as in
fummoning jurors, and the like.

Other remedies for fubtraftion of rents or fervices are,
I. By action of debt, for the breach of this exprefs contract, of
which enough has been formerly faid. This is the moft ufual
remedy, when recourfe is had to any action at all for the recovery
of pecuniary rents, to which fpecies of render almoft all free
fervices are now reduced, fince the abolition of the military te-
nures. But for a freehold rent, referved on a leafe for life, &Ci

no

a Sec pag. 6. 147. b Finch. L, jEj-

232 Private Book III*

no action of debt lay by the common law, during the continuance
of the freehold out of which it ilTued "^ : for the law would not
fuffer ar<?^/ injury to be remedied by an a6lion that was merely
■perfsnal. Howeverbytheftatutes 8 Ann.c. i4.and 5 Geo. III. c. 17.
actions of debt may now be brought at any time to recover fuch
freehold rents. 2. An aflife of mort d'anceflor or novel dijfeifin will
lie of rents as well as of lands''; if the lord, for the fake of
trying the pofTeflbry right, will eled to fuppofe himfelf oufted
or dilTeifed thereof. This is now feldom heard of; and all other
real actions, being in the nature of writs of right, and therefore
more dilatory in their progrefs, are intirely difufed, though not
formally abolifhed by law. Of this fpecics however is, 3. The
writ de confuetiidimhus et fervitiis, which lies for the lord againfl;
his* tenant, who witholds from him the rents and lervices due
by cuftom, or tenure, for his land^. This compels a fpecific pay-
ment or performance of the rent or fervice ; but there are alfo
others, whereby the lord Ihall recover the land itfelf in lieu of
the duty withheld. As, 4. The writ of cejfavit : which lies, by
the ftatutes of GloceRcr, 6 Edw. I. c. 4. and of Weftm. 2,
13 Edw. I. c. 21 & 41. when a man who holds lands of a lord
by rent or other fervices, neglects or cea/es to perform his fervices
for two years together ; or where a religious houfe hath lands
given it, on condition of performing fome certain fpiritual fer-
vice, as reading prayers or giving alms, and neglects it ; in either
of which cafes, if the ccjfer or neglect have continued for two
years, the lord or donor and his heirs fhall have a writ of cej/a»
vit to recover the land itfelf, eo quod tenens infaciendis fervit'iis
-per h'lennium jam cejfavit ^ . And in like manner, by the civil law,
if a tenant, (who held lands upon payment of rent or fervices,
or as they call it ^^ jure emphyteutico,' ) neglected to pay or per-
form them per totum triennimjij he might be ejected from fuch
emphyteutic lands ^. But by the flatute of Glocefter, the ceja-
vit does not lie for lands let upon fee-farm rents, unlefs they
have lain frefh and uncultivated for two years, and there be not

fulHcient

c 1 Roll. Ab* S9i^ f Jh'^- ao8.

d F. N. B. ij»j. g Cod. 4. 66. z,

e Hid, 151.

Ch. 15. Wrongs. 233

fafHcient diflrefs upon the premifes ; or unlefs the tenant hath fo
enclofed the land, that the lord cannot come uf>on it to diflrein''.
For the law prefers thelimple and ordinary remedies, by diftrefs,
or by the actions juft now mentioned, to this extraordinary one
of forfeiture for a ceffavlt ; and therefore the fame ftatute of Glo-
cefler has provided farther, that upon tender of arrears and da-
mage^ before judgment, and giving fecurity for the future per-
formance of the le^vices, the procefs fhall be at an end, and the
tenant fhall retain his land. And to this the ftatute of Weflm. 2.
conforms, fo far as may ft and with convenience and reafon of
law'. It is eafy to ohferve, that the ftatute"^ 4 Geo. II. c. 28.
(which permits landlords who have right of re-entry for non-
payment of rent, to ferve an ejeclmeat on their tenants, when
half a year's rent is due, and there is no diftrefs on the pre-
mifes) is in fome meafure copied from the anticnt writ oi cejjh'
vit : efpecially as it may be fatisficd and put an end to in a hmi-
lar manner, by tender of the rent and cofts within fix months
after. And the fame remedy is, in fubftance, adopted by ftatute
1 1 Geo. II. c. 19. §. 16. which enacls,' that where any tenant
at rack-rent fliall be one vear's rent in arrear, and fhaJl defert 'the
demifed premifes, leaving the fame uncultivated or unoccupied,
fo that no fufticient diftreis can be had; two juftices of the peace
(after notice aflixed on the premifes for fourteen days without
effe(5l) may give the landlord poiTeffion thereof, and thence-
forth the leafe fliali be void. 5. There is alfo another very ef-
fectual remedy, which takes place when the tenant upon a writ
of affife f or rent, or on a replevin, difowns or difclaims his te-
nure, whereby the lord lofes his verdict : in which cafe the lord :
may have a writ of ri^ht, fur difclaimer, grounded on this denial
of tenure; and ihall, upon proof of the tenure, recover back the
land itfelf fo holden, as a punifliment to the tenant for fuch his
falfe dilclaimer'. This piece of retaliating juftice, whereby the
tenant who endeavours to defraud his lord is himielf deprived of
theeftate, as it evidently proceeds upon feodal" principles, io it
Vol. hi. F f is

h F. N. R. zop. a InO:. 198. k See paj;. xo6.

I i Ihii. 401. 4<3o' 1 Finch, L, 170, 171.

234

Private

Book III.

18 exprefsly t0 be met with in the feodal conftitutions"": " va'
" /alius, qui abnegavii feudiim ^juj've cmdhionern, expcUabilur,^*

And, as on the one hand the antient law provided thefe fe-
veral remedies to obviate the knavery and punifli the ingratitude
of the tenant, fo on the other hand it was equally careful to, re-
drefs the opprefTion of the lord ; by furnifhing, i. The writ of ne
wjujle vexes^\ which is an antient writ founded on that chapter°of
magna carta, vyhich prohibits dillrefl'es for greater fervices than are
really due to the lord ; being itfelf of the prohibitory kind, and
yet in the nature of a writ of rights It lies, where the tenant
in fee-fimple and his anceftors have held of the lord by certain
fervices; and the lord hath obtained feifm of more or greater
fervices, by the inadvertent payment or performance of them by
the tenant himfelf. Here the tenant cannot in an avowry avoid
the lord's poffeflory right, becaufe of the feifin given by his own
hands ; but is driven to this writ, to diveft the lord's poirefiion,and
cftablilh the mere right of property, by afcertaining the fervices,
and reducing them to their proper flandard. But this writ does
not lie for tenant in tail; for he may avoid fuch feilin of the lord,
• obtained from the payment of his anceftors, by plea to an avowrjr
in replevin''. 2 . The writ of mefne, de medio ; which is alfo in the
nature of a writ of right"^, and lies, when upon a fubinfeudation
the mefne or middle lord ^ fufFers his under-tenant, or tenant /j^-
ravail, to be diftreined upon by the lord paramount, for the rent
due to him from the mefne lord^ And in fuch cafe the tenant
fliall havejudgment to be acquitted (or indemnified) by the mefne
lord ; and if he makes default therei-n, or does not appear origi-
nally to the tenant's writ, he fhall be forejudged of his mefnalty,
and the tenant fhall hold .ininjAiiately of the lord paramount
himfelf".

II. Thus

m Feud. /. i. t.i6.
l\ F. N. B. 10.

O C. 10.

p Booth. ia<S»

(I F. N. 0. IX. 3, Inft. xr.

r Booth. ij(5.

s See book II. ch. J.pag, ^p. Co,
t F. N. B. 13;.
u I Inlt. 374.

Ch. 15. Wrongs. 235

IT. Thus far df the remedies for fubtra(5Hon of rents or other
ferviccs due hy tenure. There are alfo other fervices, due by aii-
tient cujlorn and prefrription only. Such is that of doing fuit to
another*s mill: where the perfons, refidentin a particular place,
byufage time out of mind have been accuftomed to grind their
corn at a certain mill ; and afterwards any of them go to another
mill, and withdraw their fuit, (tlieiry^^?^, a fequendo) from the
antient mill. This is not o-nly a damage, but an injury, to the
owner ; becaufe this prefcription might have a very reafonable
foundation ; viz. upon the ereftion of fuch mill by the ancef-
tors of the owner for the convenience of the inhabitants, on
condition, that, when ereded, they fliould all grind their corn
there only. And for this injury the owner fhall have a writ de
fe6la ad nwlend'inunf ., commanding the defendant to do his fuit at
that mill, qiiam ad illudfaccre debet ^ etfolef, or fhew good caufe
to the contrary : in which action the validity of the prefcription
may be tried, and if it be found for the owner, he (hall recover
damages againft the defendant''. In like manner, and for like
reafons, ^he regifter^ will inform us, that a man may have a
writ of y^^ J ad furnnm., feda ad tcrrale^ et ad omnia alia hujuf-
modi ; for fuit due to \\\% furman^ his public oven -or bakehoufe ;
or to }\\%torrale^ his kiln, ormalthoufe; when a perfon's ancef-
tors have erected a convenience of that fort for the benefit of the
neighbourhood, upon an agreement (proved by immemorial cuf-
tom) that all the inhabitants fliould ufe and refort to it, when
erected. But befidesthefe fpecial remedies for fubtradions, ta
compel the fpecific performance of the fervice due by cuftom ;
an action on the cafe will alfo lie for all of them, to repair the
party injured in damages. And thus much for the injury of fub-
traCtion.

Ff 2

w F. N. B. 113. y fol. 153,

X Co. Entc. 4151.

236

Private Book III,

Chapter the sixTEbN t'h.

Of disturbance.

'N,

THE fixth and laft fpcclesof real injuries is that of ^///?«r-
hance\ which is ufually a wrong done to fom^ incorporeal
hereditament, by hindering or difcjuieting the owners in their
regular and lawful enjoyment of it*. I fliall confider live forts
of this injury ; viz, i. Difturbance of yrtf«<:/-?//^J". 2. Difturbance
di common. 3. Difturbance of "zx'^Tyj". 4. Difturbance oi tenure*
5, Difturbanc-e oi patronage.

I. Disturbance oi franchifei happens, when a man has the
franchife of holding a court-leet, of keeping a fair or market,
of free- warren, of laking toll, of feiling waifs or eftrays, or, (iu
fhort) any other fpecies of franchife whatfoever; and he is dif-
turbed or incommoded in the lawful exercife thereof. As if an-
other by diftrefs, menaces, or perfuaiions, prevails upon the
fuitors not to appear at my court : or obftrud:s the paftage to my
fair or market ; or hunts in my free-warren; or refufes to pay
me the accuftomed toll; or hinders me from feifing the waif or
eftray, whereby it efcapes or is carried out of my liberty ; in
every cafe of this kind, which it is impoflible here to recite or
fuggeft, there is an injury done to the legal owner ; his property
is damnified, and the profits arifing from fuch his franchife are
diminifhed. To remedy which, as the law has given no other

writ,

a Finch. L. iSy,

Ch. i6. Wrongs. ^37

writ, he is therefore entitled to fue for damages by a fpecial ac-
tion 072 the cafe : or, in cafe of toll, may take a diilrefs if he
pleafes''.

II. TiiE difturbance of fo;;w7W« comes next to be confidered ;
where any a(5l is done, by which the right of another to his com-
mon is incommoded or diminiflied. This may happen, in the
fi-ril place, where one who hath no right of common, puts his
cattle into the land; and thereby robs the cattle of the com-
moners of their refpeclive lliares of the pafture. Or if one, who
hath a right of common, puts in cattle which are not common-
able, as hogs and goats; which amounts to the fanie inconve-
nience. But the lord of the foil may (by cuftom or pref£nption_,
but not without) put a llranger's cattle into the common*^ ; and
alfo, by a like prefcriptio.n for common appurtenant, cattle that
are not commonable may be put into the common*^. The lord
alfo of the foil may jullify making burrows therein, and putting,
in rabbets, fo as they do not encreafc to fo large a number as to-
tally to dcftroy the common*. But in general, in cafe the bcafts
of aflranger, or the uncommonable cattle of a commoner, be
found upon the land, the lord or any of the commoners may
diftrein them damage-feafant^ : or the com.moner may bring an
action on the cafe to recover damages, provided the injury done
be any thing confiderable ; £b that he may lay his adion with a
per quod, or alledge that thereby he was deprived of his common.
But for a trivial trefpafs the commoner has no aclion ; but the
lord of the foil only, for the entry and trefpals committed^.

Another diilurbance of common is by fiircharging it ; or
putting more cattle therein than the pafture and herbage will
fuftain, or the party hath a i;ight to do. In this cafe he that fur-
charges does an injury to the reft of the owners, by depriving
them of their refpective portions, or at leaft contracting them

into

b Cro. Eliz. 558, c Cro. EUz. 876. Cro. Jac. \<j%. Latw. 108.

c I Roll. Abr. 39^. fpRep. iii.

d Co. Litt, u;. g Lh'.d.

238

Private Book III,

into a fmaller compafs. This injury by furcharging can properly
fpeaking only happen, where the common is appendant ot appur-
tenant'^, and of courfe limitable by law ; or where, when ingrofi^
it is exprefsly limited and certain : for where a man hath com-
mon in gvofs^ fans nomhrs or without Jl'int^ he cannot be a fur-
charger. Hov/ever, even where a man is faid to have common
without ftint, flill there muft be left fufficient for the lord's own
beads' : for the law will not fuppofe that, at the original graot
of the common, the lord meant' to exclude himfelf.

The ufual remedies, for furcharging the common, are either
by diftreining fo many of the beafts as are above the number al-
lowed, or elfe by an action of trefpafs ; both which may be had
by the lord : or, laftly, by a fpecial action on the cafe for dar
mages ; in which any commoner may be plaintiff''. But the an-
tient and moft effectual method of proceeding is by writ of ad^
meafurement of pafture. This lies either where a common ap-
purtenant or in grofs is certain as to number, or where a maa
has common appendant or appurtenant to his land, the quantity
of which common has never yet been afcertained. In either of
thefe cafes, as well the lord, as any of the commoners, is entitled
to this writ of admeafurement ; which is one of thofe writs, that
are called vuontiel\ being directed to the IherifF, (vice comiti)
and not to be returned to any fuperior court, till finally executed
by him. It recites a complaint, that the defendant hath furcharged
fuperoneravit, the common: and therefore commands the flierifF
to admeafure and apportion it; that the defendant may not have
more than belongs to him, and that the plaintiff may have his
rightful Ihare. And upon this fuit all the commoners iliall be
admeafurycd, as well thofe who have not, as thofe who have,
furcharged the common ; as well the plaintiff, as the defendant".
The execution of this writ muft be by a jury of twelve men,

who

h See book IT. ch. 3. 1 t Inft. 169. Fingh. L. 314.

i I Roll. Ahr. 399. m F. N. B. ii5'

k Freem. 173.

Ch. i<5. Wrongs. 239

who are upon their oaths to afcertain, under the fuperintendance
of the flierifF, what and how many cattle each commoner is
entitled to feed. And the rule for this admeafurement is gene-
rally underftood to be, that the commoner Ihall not turn more
cattle upon the common, than arefufficient to manure and flock
the land to which his right of common is annexed 15 or, as our
antient law exprefled it, fuch cattle only as are levant and coti-
chant upcm his tenement": which being a thing uncertain before
admeafurement, has frequently, tht)ugh erroneoufly, occafioned
this unmeafured right of common to be called a common without
Jlint or fans nombre''', a thing which, though pollible in law,
does in facl very rarely exift.

I Fj after the admeafurement has thus afcertained the right,
the fame defendant furcharges the common again, the plaintiff
may have a wnt oi Jecond fur charge, de fecunda fuperoneration^^
which is given by the flatute Weflm. 2. 13 Edw. I. c. 8. and
thereby the fherifFis directed to enquire by a jury, whether the
defendant has in fact again furcharged the common, contrary to
the tenor of the lafl admeafurement : and if he has, he fhall
i then forfeit to the king the fupernumerary cattle put in, and
alfo lliall pay damages to the plaintiff ^ This procefs feems
highly equitable : for the firfl offence is held to be committed
I through mere inadvertence ; and therefore there are no damages
; or forfeiture on the firfl writ, which was only to afcertain the
j right which was difputed : but the fecond offence is a wilful
I contempt andinjuflice; and therefore punifhed very properly with
not only damages, but alfo forfeiture. And herein the right, be-
; ing once fettled, is never again difputed ; but only the fad is
i tried, whether there be any fecond furcharge or no : which gives
this neglected proceeding a great advantage over the modern me-
thod, by action on the cafe, wherein the quantum of common
belonging to the defendant mufl be proved upon every frefh trial,
for every repeated offence.

There

n Bro. Ahr. t.frejcn^tm. a8. p F. N B. raff- * Inft. 370,

o Hardr. 117.

240 Private Booii III.

There is yet another difturbance of common, when the
ownerof the land, or other perfon, fo enclofes or otherwife ob-
ftructs it, that the commoner is precluded from enjoying the be-
nefit, to which he is by law entitled. This may be done, either
by erecting fences, or by driving the cattle off the land, or by
ploughing up the foil ofthecommon"". Or it may be done by
eredting a warren therein, and Hocking it with rabbets in fuch
quantities, that they devour Ijhe \Vhole herbage, and thereby de-
ftroy the common. For in fuch cafe, though the commoner may
not deftroy the rabbets, yet the law looks upon this as an inju-
rious difturbance of his right, and has given him his remedy by
a6lion againft the owners This kind of difturbance does indeed
amount to a diifeifm, and if the commoner chufes to confider it
in that light, the law has given him an affife of novel dijfeifin
againft the lord, to recover the poffefTion of his common". Or
it has given a writ oi qiiodperni'ittat, againft any ftranger, as well
as the owner of the land, in cafe of fuch a difturbance to the
plaintiff as amounts to a total deprivation of his common;
whereby the defendant fhall be compelled to permit the plaintiff
to enjoy his common as he ought'. But if the commoner does
notchufeto bring 2ireal aclion to recover feilin, or to try the
right, he may (which is the eafier and more ufual way) bring
ana6lion on the cafe for his damages, inftead of an aflife or a
quodpermittat^.

There are cafes indeed, in which the lord may enclofe and
abridge the common ; for which, as they are no injury to any one,
fo no one is entitled to any remedy. For it is provided by the
ftatute of Merton, 20 Hen. III. c. . 4. that the lord may approve,
that is, enclofe and convert to the ufes of hufbandry (which is a
melioration or approvement) any wafte grounds, woods, or paf-
tures, in which his tenants have common appoidant to their ef-

tates j

q Cro. Eliz. i()8. t Finch. L. 175. F. N. B. 1x3.

r Crb. Jac. los. u Cro Jac, ipj.

s F. N. B. i7S>.

Ch. i6. Wrong s. 241

tates ; provided he leaves fufficient common to his tenants, ac-
cording to the proportion of their land. And this ii extremely
reafgnable: for it would be very hard if the lord, whofc an-
ceftors granted out thefe eftates to which the commons are ap-
pendant, fhould be precluded from making \\h:\K advantage he
can of the reft of his manor ; provided iucii advantage and im-
provement be no way derogatory from the former grants. The
ftatute V/eftm. 2. 13 Edw. I. c. 46. extends this liberty of ap-
proving, in like manner, againft all others that have common a/>-
furtenanty or in grofs^ as well as againft the tenants of the lord,
who have their common appendant ; and farther enactvS that no
aflife of novel dijeifin, for common, Ihall lie againft a lord for
erecting on the common any windmill, fheephoufe, or other n(j-
ceffary buildings therein fpecified: which, fir Edward Coke f.!.ys%
are only put as examples ; and that any other neccflary improve-
ments may be made by the lord, though in reality they abridge
the common, and make it lefs fu^cienc for the commoners. Ard
laftly, by ftatutes 29 Geo. II. c. 36. and 31 Geo. II. c. 41. it 13
particularly enaded, that any lords of waftes and commons, v»'ith
theconfent ot the major part, in number and value, of the com-
moners, may inclofe any part thereof, for the growth of timber
and underwood.

III. The third fpecles of difturbance, that of wajs, is very
firailar in it's nature to the laft : it principally happening when
a perfon, who hath a right to a way over another's grounds, by
grant or prefcription, is obftruclcd by inclofures, or other obfta-
cles, or by ploughing acrofs it ; by which means he cannot en-
joy his right of way, or atleaft not in fo commodious a manner
as he might have done. If this be a way annexed to his eftate,
and the obftruction is made by the tenant of the land, this brings
it to another fpecies of injury ; for it is then a nujance, for which
an aflife will lie, as mentioned in a former chapter ^ But if the
right of way, thus obftruded by the tenant, be only in grofs,
(that is, annexed to a man's perfon and unconneded with any
Vol. III. Gg . , lands

w » Infl. 475. X ch. xj. p. 418.

242 Private Book III.

lands or tenements) or if the obftruclion of a way belonging to
an houfe or land is made by a ftranger, it is then in either cafe
merely a diflurbance : for the obftruction of a way in grofs is no
detriment to any lands or tenements, and therefor^ does not fall
imder the legal notion of a nufance, vhich miift be laid, ad no-
cumentum liberi tenementP ; and the obftruclion of it by a ftranger
can never tend to put the right of way in difpute: the remedy
therefore for thefedifturbances is not by aflife or any real a<ftion,but
by the univerfal remedy of action on the cafe to recover damages^.

IV. The fourth fpecies of diftiirbance is that of difturbance
of tenure, or breaking that connexion, which fublifts between
the lord and his tenant, and to which the law pays fo high a re-
gard, that it will not fufi'er it to be wantonly diftblved by the act
of a third perfon. The having an eftate well tenanted is an ad-
vantage that every landlord muft be very fenfiblc ofj and there-
fore the driving away a tenant from off his eftate is an injury of
no fmall confequence. If therefore there be a tenant at w*ill of
any lands or tenements, and a ftranger either by menaces and
threats, or by unlawful diftrefies, or by fraud and circumvention,
or other means, contrives to drive him away, or inveigle bim to
leave bis tenancy, this the law very juftly conftrues to be a wrong
and injury to the lord*, and gives him a reparation in damages
againft the offender by a fpecial action on the cafe.

V. T H E fifth and laft fpecies of difturbance, but by far the
moft conftderable, is that of difturbance oi patronage '^ which is
an hindrance or obftrudion of a patron to prefent his clerk to a
benefice.

This injury was diftinguiffied at common law from another
fpecies of injury, called ufurpation ; which is an abfolutc oufter
or difpoffcffion of the patron, and happens when a ftranger, that
hath no right, prefenteth a derk, and he is thereupon admitted

and

y F. N. B. 183. a Hal. Anal. c. 40, 1 Roll. Abr. ic8.

z U^leonF. N. £• iSi« Lutw. iit, iifr

Ch. i6. , ^ Wrong s. 24^

and inftltiited''. In which cafe, of ufurpation, the patron loft
by the common law not only his turn of prefenting^ro hac vice,
but alfo the abfolute and perpetual inheritance of the advowfon,
fo that he could not prclent again upon the next avoidance, un-
lefs in the mean time he recovered his right by a real action, ^7>,
a writ of ri^bt of advowjof . The reafon given for his loiing the
prefent turn, and not ejecting the ufurper's clerk, was, that the
final intent of the law in creating this fpecies of property being
to have a fit perfon to celebrate divine fervice, it preferred the
peace of the church (provided a clerk were once admitted and
inilituted) to the right of any patron whatever. And the patron
alfo loft the inheritance of his advowfon, unlefs he recovered it
ina writof riglit, becaufe by fuch ufurpation he was put out of
pofiTeflion of his advowfon, as much as when by actual entry and
Gufter he is difteifed of lands or houfes; fince the only poffellion,
of which an advowfon is capable, is by actual prefentation and
admiflion of one's clerk. And therefore, when the clerk was
once inftituted (except in the cafe of the king, where he muft ***

alfo be inducled"*.) the church was abfolutely /?///; and the ufur-
per becanieyd'//!^.'/ of the advowfon. Which feifin or poffellion it
was impollible for the true patron to remove by any poffeffory
action, or other means, during the plenarty or fullnefs of the
church; and when it became void afreih^ he could not prefent,
fince another had the right of poffeffion. The only remedy there-
fore, which the patron had left, was to try the mere right in a
writ of right of advoivjoi ; which is a peculiar writ of right,
framed for this fpecial purpofe, but in every other refped cor-
refponding with other writs of right^: and, if a man recovered
therein, he regained his advowfon and was entitled to prefent at
the next avoidance*". But in order to fuch recovery he muft al-
lege a prefentation in himfelf or fome of his anceftors, which
proves him or them to have been once in poffeffion : for, as a
grant of the advowlon, during the fullnefs of the church, con-

■ G g 2 veys

b Co. Litt. 177. e F. N. B. 30,

c 6 Rep. 49. f lyji, 36,

d Ibid.

244 Private Book III.

veys no manner of polTeilion for the prefent, therefore a pur-
chafer, until he hath prefented, hath no adual feiiin whereon to
ground a writ ot right^. Thus flood the common law.

But bifliops, in antient times, either by carelefTnefs or col-
lufion, frequently inftituting clerks upon the prefentation of ufur-
pers, and thereby defrauding the real patrons of their right
of pofTellion, it w as in fubllance enadled by ftatute Weftm. 2.
1 3 Edw. I. c. 5. §. 2. that if a poiTeflory adiori be brought within
fix months utter the avoidance, the patron fhall (notwithftaaiding
fuch ufurp'Vi;.on and inftitution) recover that very prefentation;
which gives back to him the (eifin of the advowfon. Yet llil!, if
the true patron omitted to bring his action within fix months,
the feiiin was gained by the ufarper, and the patron to recover
it was driven to the long and iiszardous procefs of a writ of
right. To remedy which it wai further enacted by ftatute
7 Ann. c. 18. tli^t no uiuipatiork ihall difplace the eftate or inte-
reft of the patron, or turn it to a mere right ; but that the true
patron may pixfent upon the next avoidance, as if no fuch ufur-
pation had happened. So tiiat the title of ufurpation is now
mticli narrowed, and the ;aw fiands upon this reafonable founda-
tion : that if 1 flnmL'er ufurps my prefentation, and I do not
purfue iny rig'it within fix months, I fliall loofe that turn with-
out remedy, for the peace of the church, and as a punifhment
for my own negligence ; but that turn is the only one I fliall
lofe thereby. Ufurpation now gains no right to the ufurper,
with regard to any future avoidance, but only to the prefent va-
cancy : it cannot indeed be remedied after fix months are paft ;
but, during thofe lix months, it is only a fpecies of difturbance.

Disturbers of a right of advowfon may therefore be thefe

three perfons ; the pfeudo-patron, his clerk, and the ordinary:

the pretended patron, by prefcnting to a church to which he has

no sight, and thereby making it litigious or difputable ; the

clerkj by demanding or obtaining inftitution, which tends to and

promotes

g 1 Inft. 3^7.

Cli. 1 6. Wrongs. 245

promotes the fame Inconvenience ; and the ordinary, by refufing
to admit the real patron's ckrk, or admitting the clerk of the
pretender. Thefe difturbances are vexatious and injurious to him
who hath the right: and therefore, if he be not wanting to
himfelf, the law (befides the writ of right of advowfon, which
is a final and conclufive remedy) hath given him two inferior
poiTeffory aclions for his relief; an affife of darrein frefentment,
and a writ of quare mpedit ; m which the patron is always the
plaintiff, and not the clerk. For the law fuppofes the injury to
be offered to him only, by obftrudingor refufmg the admiiTion
of his nominee ; and not to the clerk, who hath no right in him
till inftitution, and of courfe can fuffer no injury. ~

I. An aflife of darrein prefentment, or lafl prefentation, lies
when a man, or his anceftors, under whom he claims, have
prefented a clerk to a benefice, who is inflituted; and afterwards
upon the next avoidance a flrangerprefents a clerk, and thereby
difiurbs him that is the real patron. In which cafe the patron
fliall have this writ"", direcled to the flieriff to fummon an afilfe
or jury, to enquire who was the laft patron that prefented to
the church now vacant, of which the plaintiff complains that
he is deforced by the defendant : and, according as the aflife
determ.ines that queftion, a writ fhall iflfue to the bifhop ; to
inftitute the clerk of that patron, in whofe favour the determi-
nation is made, and alfo to give damages, in purfuance of fta-
tute Wellm. 2. 13 Edw. I. c. 5. This queftion, it is to be ob-
ferved, was. before the ftatute 7 Ann. before-mentioned, entirely
conclufive, as between the patron or his keirs and a flranger : for
till then, the full pofTeiTion of the advowfon was in him who pre-
fented laft and his heirs ; unlefs, fince that prefentation, the
clerk had been evicted within fix months, or the rightful patron
had recovered the advowfon in a writ of right, which is a title
faperior to all others. But that ftatute having given a right to
any perfon to bring a quare impedit, and to recover (if his title be
good) notwithftanding the laft prefentation, by whomfoever

made^

h F, N. B. 31.

246 Private Book III.

made ; affiles of darrein prefentmenf, now not being in any wife
concluiive, have been totally difufed, as indeed they began to be
before ; a quare impedit being a more general, and therefore a
more ufual action. For the affife of darrein prefentment lies only
where a man has an advowfon by defcent from his anceftors ;
but the writ o( quare i?npedit is equ3i]\y remedial whether a man
claims title by defcent or by purchafe'.

2. I PROCEED therefore, fecondly, to inquire into the na-
ture" of a writ of quare impedit, now the only action ufed in
cafe of the difturbance of patronage: and fliall firftpremife the
ufual proceedings previous to the bringing of the writ.

Upon the vacancy of a living the patron, we know, is bound
to prefent within fix calendar months', otherwife it will lapfe to
the bifliop. But, if the prefentation be made within that time,
the bifhop is bound to admit and inftitute the clerk, if found
fufficient"* ; unlefs the church be full, or there be notice of any
litigation. For if any oppolition be intended, it is ufual for
each party to enter a caveat with the billiop, to prevent his in-
ftitution of his antagonift's clerk. An inftitution after 2i caveat
entered is void by the ecclefiaftlcal law"; but this the temporal
courts pay no regard to, and look upon a caveat as a mere nul-
lity°. But if two prelentations be offered to the bifhop upon
the fame avoidance, the church is then faidto become litigious ;
and, if nothing farther be done, the bifhop may fufpend the
admiffion of either, and fuffer a lapfe to incur. Yet if the pa-
tron or clerk on either fide requefl him to award a jus patronatus^
lie is bound to do it. A jus patronatus is a commiflion from the bi-
fhop, dire6led ufually to his chancellor and others of competent
learning ; who are to fummon a jury of fix clergymen and fix
laymen, to inquire into and examine who is the rightful pa-
tron'';

1 ^ Inft. 35S. m See hook I. ch. 11.

k See Bofwell's cafe. 6 Rep. 48. n i Burn. 107, /

1 See book II. cb. 18. o i Roll. Rep. ij>i.

Ch. i6. Wrong s. 247

tron *' ; and if, upon fuch enquiry made and certificate thereof
returned by thecommillionerSj he admits and inftitutes the clerk
of that patron whom they return as tlie true one, the bifhop fe-
cures himfelf at all events from being a difturber, whatever pro-
ceedings may be had afterwards in the temporal courts r

The clerk refufed by the bifhop may alfo have a remedy
againft him in the fpiritual court, denominated a duplex querela'^ :
which is a complaint in the nature of an appeal from the or-
dinary to his next immediate fuperior ; as from a bifhop to the
arch-bifhop, or from an arch-bilhop to the delegates : and if the
fuperior court adjudges the caufe of refufal to be infufficient, it
will grant inflitution to the appellant.

Thus far matters may go on in the mere ecclefiaflical courfe;
but in contefled prefentations they feldom go fo far; for, upon
the firil delay or refufal of the bifhop to admit his clerk, the pa-
tron ufually brings his writ of quare i?npedit againfl; the bilhop
for tlie temporal injury done to his property, in diflurbing him
in his prefcntation. And, if the delay arifes from the bifhop
alone, as upon pretence of incapacity, or the like, then he only
is named in the writ; but if there be another prefentation fet up,
then the pretended patron and his clerk are alfo joined in the ac-
tion ; or it may be brought againfl the patron and clerk, leaving
out the bilhop; or againfl the patron only. But it is mofl ad-
vifeable to bring it againll all three : for if the bifhop be left
out, and the fuit be not determined till the fix months are pafl^
the bifhop is entitled to prefent by lapfe; for he is not party to
the fuit': but, if he be named, no lapfe can poflibly accrue till
the right is determined. If the patron be left out, and the writ
be brought only againfl the bifhop and the clerk, the fuit is of
no effect, and the writ fhall abate ^; for the right of the patron
is the principal queflion in the caufe'. If the clerk be left out,

and

p I Rum. i^, 17, s Hob. 315.

q Ibid. 113. t 7 Rep, ij.

r Cro. Jac. ^3.

148

Private Book IIL

and has received inftitution before the a<^ion brought (as is fome-
times the cafe) the patron by this fuit may recover his right of
patronage, but not the prefent turn ; for he cannot have judg-
ment to remove the clerk, unlefshe be made a defendant, and
party to the fuit, to hear what he can allege againft it. For which
reafon it is the fafer way always to infert them, all three, in
the writ.

The writ of quare impedit " commands the difturbers, the
bifhop, the pfcudo-patron, and his clerk, to permit the plaintiff
to prefent a proper perfon (without fpecifying the particular clerk)
to fuch a vacant church, which pertains to his patronage ; and
which the defendants, as he alleges, do obflrucl : and unlefs
they fo do, then that they appear in court to fliew the reafon why
they hinder him.

Immediately on the fuing out of the quare impedit, if the
plaintiff fufpecls that the bifliop will admit the defendant's or
any other clerk, pending the fuit, he may have a prohibitory
writ, called a«^ admittas "'j which recites the contention begun
in the king's coiirts, and forbids the bifhop to admit any clerk
■whatfoever till fuch conte'ntion be determined. And if the bi-
fhop doth, after the receipt of this writ, admit any perfon, even
though the patron's right may have been found in 21 jure patro-
natus, then the plaintiii, after he has obtained judgment in the
quan impedit, may remove the incumbent, if the clerk of a
ftranger, by writ oi fcire facias^: and fhall have a fpccial action
againfl the bifhop, called a quare incumhravit ; to recover the
prefentation, and alfo fatisfadion in damages for the injury done
him by incumbering the church with a clerk, pending the fuit,
and after the ne admittas received ^ But if the bifhop has in-
cumbered the church by inflituting the clerk, before the 7ie ad'
mittas iffued, no quare incumbravit lies; for the bifhop hath no
legal notice, till the writ oine admittas is ferved upon him. The

patron

u F. N. B. ivx X * Sid. 94.

w Mi. 3J. 3f F. N. B. 4»,

Ch. 1 6. Wrongs. 249

patron is therefore left to his quare imped'it merely ; which, as was
before obferved, now lies fince the ftatufce of Weftm. 2.) as well
upon a recent ufurpation within fix months paft, as upon a diflur-
bancc without any ulurpation had.

I N the proceedings upon a quare impedit, the plaintiff mud fet
out his title at length, and prove at leaft one prefentation In him-
felf, his anceftors, or thofe under whom he claims ; for he muft re-
cover by the ftrength of his own right, and not by the weaknefs of
the defendant's ^: and he muft alfo fhew a difturbance before the
iiclion brought ^ Upon this the bifliop and the clerk ufually dif-
claim all title: fave only, the one as ordinary, to admit and Infti-
tute ; and the other as prefentee of the patron, who is left to de-
fend his own right. And, upon failure of the plaintiff in making
lout his own title, the defendant is put upon the proof of his, In or-
der to obtainjudgmentforhimfelf, if needful. But if the right b^
found for the plaintiff, on the trial, three farther points are alfo
to be enquired: i. If the church be full ; and, if full, then of Vv'hofa
prefentation : for if it be of the defendant's prefentation, then the
clerk Isremoveablebywrit brought indue time. 2. Of what value
the living is : and this in order to afiefs the damages which are di-
rected to be given by the ftatute of Wef^m. 2. 3. In cafe of ple-
narty upon an ufurpation, whether lix calendar^ months have paffed
between the avoidance and the time of bringing the aclion : for
then it would not be within the ilatute, which permits an ufur^
patlon to be devefled by a quare imped'it ^hvonght infra tempusjemef-
tre. So that plenarty is dill a fufiicient bar in an a(flion of quare
hnpedit^hrou'^ht above fix months after the vacancy happens; as it
wasuniverfally by the common law, however early the aclion was
commenced.

I F it be found that the plaintiff hath the right, and hath com-

inenced his aclion in due time, then he fliall have judgment to rc-

VoL. III. H I\ cover

2 Vaugh. 7, 8. h i Iiift. 361.

a Hob, ipj, '^

2^0 Private Book IIL

cover the prcfentation ; and, if the church be full by inftitutlon of
any clerk, to remove him : unlefs it were ^Wed pendente lite by lapfe
to the ordinary, he not being party to the fuit ; in which cafe the
plaintiff lofes his prefentation pro hac vice, but lliali recover two
years' full value of the church from the defendant the pretended
patron, as a fatisfaclion for the turn loft by his difturbance : or,
in cafe of his infolvency, he fliall be imprifoned for two years "^.
But if the church remains ftiil void at the end of the fuit, then
whichever party the prefentation is found to belong to, whether
plaintiff or defendant, fhall have a writ directed to the bifhop ad
admit t end u?n ciericiwi'^, reciting the judgment of the court, and or-
dering him to admit and inflitutethecierkof the prevailing party ;
and, if upon this order he does not admit him, the patron may fue
tht bifhop in a writ of quare non admifit^, and recover ample fatis*
faction in damages.

Besides thefe poffeffory actions, there may be alfo had(as hath
before been incidentally mentioned) a writ o^ fight of advowfon^
which refemblcs other writs of right ; the only diflinguifliing ad-
Vantage now attending it, being, that it is more conclulive than a
qiiare impedit ; fince to an action of quare impedit a recovery hadt
in a writ of right may be pleaded in bar.

T H E R E is no limitation with regard to the time within which
iiny actions touching advowfons are to be brought ; at lead none
later than the times of R.ichard I and Henry III : for by ftatute
I Mar. ft. 2. c» 5. the Itatute of limitations, 32 Hen. VIII. c. 2.
is declared not to extend to any writ of right of adowfon, quar6
impedit, or ^ffi^e. oi darrein prefentment, (.w jus patronatus. And
this upon very goodreafon ; becaufe it may very ealily happen that
the title to an advowfon may not come in queftion, nor the righc
have opportunity to be tried, within fixty years ; which is the
longeft period of limitation affigned by theftatuteof Henry VIII.
For ffr Edward Coke^ tells us, that there was a parfon of one o(

hii

c Stat. Wcdm. ^. il Edw, I. c, 5. §. 3. <• Ib'id 47.

d f. N. B. 38, f I Infl. 115.

Chap. 16. Wrongs. 251

Ins churches, that had been incumbent there above fifty years ;
nor are hiftances wanting wherein two fucceilive incumbents have
continued for upwards of a hundred years^ Had therefore the
laft of thefe incumbents been the clerk of a ufurper, or had been
prefented by lapfc, it would have been neceffary and unavoidable-
for the patron, in cafe of a difpute, to have recurred back above a
century, in order to have fhewn a clear title and feilin by prcfcn-
, tation and admiflion of the prior incumbent. But though, for
thefe reafons, a limitation is highly improper with refpecl only
to the length of time ; yet, as the title of advowfons is for vrant
of fome limitation, rendered more precarious than that ofany other
hereditament, it might not perhaps be amifs if a. limitation were
eftablifiied with refpecl to the number of avoidances ; or,rather,
if a limitation were compounded of the length of time and the
number of avoidances together: for inftance, if no feilin were ad-
mitted to be aliedged in any of thefe writs of patronage, after fixty
years and three avoidances were paft.

In awrit of 5'::.y?r£'/;;7^^^/V, which is almofl the only real ac-
tion that remains in common ufe, and alfo in the allife of darrein
prefo'dment, and writ bf right, the patron only, and not the
clerk, is allowed to fue the difturber. But, by virtue of feveral
acts of parliament^, there is one fpecics of prefentations, in which
a remedy, to be fued in the temporal courts, is put into the hands
of the clerks prefented, as well ag of the owners of the advow-
fon. I rnean the prefentation to fuch benefices, as belong to,
Roman catholic p3,trons ; which, according to their feveral coun-
ties, are veiled in and fecured to the two univerfities of this king-
dom. And particularly by thellatute of 12 Ann. ft. 2. c..i4.§. 4,
a new method of proceeding is provided ; viz» that, befidcs the
writs oi quare impedit, which the univerfities as patrons are en-
titled to bring, they, or their clerks, may be at liberty to file a

H h 2 . bill

I

g The two lart incumbents of the rectory was admitteJ in 1(550, the latter in 1700,
of Chelsfield cum Faniborough in Kent, and died in 1751.

continued loi years ; of whom the forniei; ' h Stat. 3 Jac. I. c. %. i \\'. Sz M. c. 16 .

la Ann. (I. ;. c. .'4. ii Geo. II. c. i- .

252 Private Book III.

bill in equity againft any perfon prefenting to fiich livings, and
difturbing their right of patronage, or his cejiui que trujl^ or any
other perfon whom they have caufe to fufpeft; in order to com^
pel a dilcovery of any fecret trufts, for the benefit of papifts, in
evafion of thofe laws whereby this right of advowfon is vefted
in thofe learned bodies : and alfo (by the ftatute 11 Geo. II.) to
compel a difcovery whether any grant or conveyance, faid to be
made of fuch advowfon, were made bona fde to a proteftant
purchafer, for the benefit of proteftants, and for a full confide-
ration ; without which requifites every fuch grant or conveyance
of- any advowfon or avoidance is abfolutely null and void. This
is a particular law, and calculated for a particular purpofe: but
m no iiiilance but this does the comm.on law permit the clerk
himfelf to interfere in recovering a prefentation, of which he is
afterwards to have the advantage. For befides that he has (as
was before obferved) no temporal right in him till after inflitution
and induction; and, as he therefore can fufFer no wrong, is con-
fequently entitled to no remedy ; this exclufion of the clerk from
being plain tift' feem.s alfo to arife from the very great honom" and
regard, which the law pays to his facred function. For it looks
upon the cure of fouls as too arduous and important a tafk to be
eagerly fought for by any ferious clergyman : and therefore will
not permit him to contend openly at law for a charge and trufl,
v.'hich it prcfumes he undertakes with diffidence.

But when the clerk is in full poffelTion of the benefice, the
law gives him the fame pofTelTory remedies to recover his glebe,
his rents, his tithes, and other ecclefiaftical dues, by writ of
entry, aflife, ejectment, debt, or trefpafs, (as the cafe may hap-
pen) which it furnifhes to the owners of lay property. Yet he
ihall not have a writ of right, nor fuch other fimilar writs as arQ
grounded upon the mere right ; becaufe he hath not in him the
.Intire fee and right' : but he is intitled to a fpecial remedy called
a Vint of juris iitrmij which is fometimes ftiledthe parfon*s writ

of

iF. N. B.V9.

Cli. i6. Wrongs. 253

of iigtit'% being the higheft writ which he can have'. This 1 ies
for a parfon or a prebendary at common law, and for a vicar by
flatute 14 Edw. III. c. 1 7. and is in the nature of an aflife, to en-
quire whether the tenements in queflion are frankalmoign be-
longing to the church of the demandant, or elfe the lay fee of
the tenant'". And thereby the demandant may recover lands and
tenements belonging to the church, which were aliened by the
predecefTor ; or of which he was difleifed ; or which were reco-
vered againft him by verdict, confeffion, or default, without
praying in aid of the patron and ordinary; or on which any per-
fon has intruded lince the predeceflbr's death". But fmce the re-
ftraining ftatute of 13 Eliz. c. 10. whereby the alienation of the
predecelTor, or a recovery fuffered by him of the lands of the
church, is declared to be abfolutely void, this remedy is of very
littleufe,unlefs where the parfon himfelf has been deforced for
more than twenty years^jfor the fucceflbr, at any competent time
after his acceflion to the benefice, may enter, or bring an ejed-
ment.

k Bootli. jir. * n F. N. B. 4S, 45,

1 F. N. B. 4«- aBcoth. sji, •

jTi Regiflr. 3a.

254 Private Book III.

Chapter the seventeenth.

Of INJURIES PROCEEDING FROM OR AFFECTING,

THE CROWN.

AVING in the nine preceding chapters confidered the in-
juries, or private wrongs, that may be offered by one fub-
jecl to another, all of which are redrelTed by the command and
authority of the king, fignified by his original writs returnable in
his feveral courts of juftice, which thence derive a jurifdiclion of
examining and determining the complaint ; I proceed now to in-
quire of the mode of redrefling thofc injuries to which the crown
itfelf is a party: which injuries are eitha' where the crown is the
aggreflbrjand which therefore cannot without a folecifm admit of
the fame kind of remedy^ ; or elfe is the fufferer, and which then
are ufually remedied by peculiar forms of procefs, appropriated to
the royal prerogative. In treating therefore of thefe, we will
confider firft, the manner of redrefling thofe wrongs or injuries
which a fubjecl may fuffer from the crown, and then of redrefling
thofe which the crown may receive from a fubjecl,

I. That the king can do no wrong, is a neceflary and fun-
damental principle of the Englifh conftitution : meaning only,
as has formerly been obferved'', that, in the firft place, whatever
may be amifs in the conduct of public affairs is not chargeable

perfonally

a Ero. Abr, t. petition. la. /. prercgctivc. a. b Book I. ch. 7. pag. 343— ?4(J.

Gh. 17. Wrongs. ^g^

perfonally on the king; nor is he, but his minifters, accountable
for it to the people: and, rccondly, 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 "•
Whenever therefore it happens, that, by mifinformation or inad-
vertence, the crown hath been induced to invade the private rights
of any of it's fubjefls, though no adion will lie againft the fo-
vereign'', (for who fhall command the king^ ?) yet the law hath
furnifhed the fubject with a decent and refpedful mode of re-
moving that invafion, by informing the king of the true ftate of
the matter in difpute : and, as it prefumes that to know of an
injury and to redrefs it are infeparable in the royal breaft, it then
iffues as of courfe, in the king's own name, his orders to his
judges to do juftice to the party aggrieved.

The diftance between the fovereign and his fubjec^s is fuch
that it rarely can happen, that any -perfonal injury can imme-
ciiitely and directly proceed from the prince to any private man:
and, as it can fo feldom happen, the law in decency fuppofes that
it never will or can happen at all; becaufe it feels itfelf incapable
of furnifhing any adequate remedy, w^ithout infringing the dig-
nity and deftroying the fovereignty of the royal perfon, by fet-
ting up fome fuperior power with authority to call him to ac-
count. The inconveniency therefore of a mifchief that is barely
poffible, is (as Mr. Locke has obferved^) well recompenfed by the
peace of the public and fecurity of the government, in the per-
fon of the chief magiftrate being fet out of the reach of coer-
cion. But injuries to the rights oi property can fcarcely be com-
mitted by the crown without the intervention of it's officers ;
for whom the law in matters of right entertains no refpedl or
delicacy, but furnifhes various methods of detecting the errors
or mifconducl of thofe agents, by whom the king has been de-
ceived, and induced to do a temporary injullice.

The

c Plow. S87. e Finch. L. 83.

I Jenkins. 78. f ou Gov. p. a. §. joj,

25<5

Private Book lit

The common law methods of obtaining polTeffion or reftitu-
tion from the crown, of either real or perfonal property, are, i. By
petition de droit, or petition of right, which is faid to owe it's
original to king Edward the firft^ 2. By monjlrans de droit, ma-
nifeftation or plea of right: both of which may be preferred or
profecuted either in the chancery or exchequer''. The former is
of ufe, where the king is in full poffeffion of the hereditaments
or chattels, and the party fuggefts fuch a right as controverts the
title of the crown^ grounded on facts difclofed in the petition
itfelf J in which cafe he m.uft be careful to ftate truly the whole
title of the crown, otherwife the petition lliall abate': and then
upon this anfwer being endorfed or underwritten by the king,
foit droit fait al partie {\tt right be done to the party ^) a com-
miflion fhall ilTue to inquire of the truth of this fuggeftion^j
after the return of which, the king's attorney is at liberty to
plead in bar ; and the merits fliall be determined upon ifTue or
demurrer, as in fuits between fubjecl and fubject. Thus, if a
difleifor of lands, which are holden of the crown, dies feifed
without any heir, whereby the king \s prima facie intitled to the
lands, and the pofleflion is caft on him either by inqueft of office,
or by aft of law without any office found; now the diffeifee Ihall
have remedy by petition of right, fuggefling the title of the
crown, and his own fuperior right before the difleifin made '. But
where the right of the party, as well as the right of the crown,
appears upon record, there the party fhall have monfirans de droit,
vjhich is putting in a claim of right grounded on facts already
acknowleged and eftablifhed, and praying the judgment of the
court, whether upon thofe facts the king or the fubjecl: hath the
right. As if, in the cafe before fuppofed, the whole fpecial mat-
ter is found by an inqueft of office, (as well the difTeifin, as the
dying without any heir) the party grieved fhall have monflraju de
droit at the common law*". But as this feldom happens, and

the

g Bro. Air, t.prero^, i. Fitzh. /ih, t. j State Tr. vH. 134.

error. 8. k Skin. 60O. Raft. Entr. j^di.

h Skin. Cop. 1 Bro. Abr. t. fctUlon, xo, 4 Rep. 58.

i fineh, L, ajfi, m 4 Rep. 55.

Ch. 17. Wrongs. 257

the remedy by petition was extremely tedious and cxpenfivc, that
by monjlrans was much enlarged and rendered almoll univerfal by
fcveral (latutes, particularly 36Edw. III. c. 13. and 2^3 Edw. VI.
c. 8. which alio allow inquifitions of" office to be traverfed or
denied, wherever the right of a fubjccl is concerned, except in
a very few cafes". Thefe proceedings are had in the petty bag
office in the court of chancery : and, if upon either of them the
right be determined againft the crown, thejudgtnent is, quod '
manus domin'i regis amoveantur et pojjejjlo rcjVituatur peteiit'i, faho
jiiredomini regis" ; which laft claufe is always added to judgments
.againft the king", to whom no laches is ever imputed, and whofe
right (till fome late liatutes'') was never defeated by any limita-
tion or length of time. And by fuch judgment the crown is in-
llantly out of poiTeffion''; fo that there needs not the indecent in-
terpoiition of his own officers to transfer the feihn from the
king to the party aggrieved.

II. The methods of redreffing fuch injuries as the crown
may receive from afubjecl, are,

I. B Y fuchufual common law adions, as are confiflent with
the royal prerogative and dignity. As therefore the king, by rea-
fon of his legal ubiquity, cannot be diiTeifed or difpoffeired of any
real property which is once vefted in him, he can maintain no
action which fuppofes a difpoifefTLon of the plaintiff j fuch as an
affife or an ejecfment ' : but he may bring a quare i?npedit\ which
ahvays fuppofes the complainant to be feifed or poilexTed of the,
advowfon : and he may profecute this writ, as well as every
other, as well in the king's bench as the common pleas, or in
whatever court he pleafes. So too he may bring an action of
trefpafs for taking away his goods ; but not for breaking his clofc,
or any other injury done upon his foil or pofieffion ''. It would
be equally tedious and difficult, to run through every minute
Vol. III. I i diilinctiori

D Skin. ()o8. r Ihi(>. 459.

o % l,-,(l 6c,i. 'R.^a. Eiur. 4^:3. ■ s V.VO. Abr. t. prercgatlve.^o-

p Kindi. L. 460. t F. N. B. 3i.

<1 ji Jac. I. c. i. 9 Geo. III. c. 16. V Bio. Ahr. t. prcrog. 130. F. N. B. 50.

258

Private Book III.

dillinclion that might be gleaned feom our antlent books with
regard to this matter ; nor is it in any degree neceffary, as much
eafier and more effeclual remedies are iifaally obtained by luch
prerogative modes of procefs, as are peculiarly confined to the
crown.

2. S u c H is that of inquijition or inquejl of office : which is an
enquiry made by the king's officer, his fheriif, coroner, or ef-
cheator, virtute o/pc'u, or by writ to them fent for that purpofe,
or by commillioners fpecialiy appointed, concerning any matter
that intities the king to tiic poffeflion of lands or tenement?,
goods or chattels". This is done by a jury of no determinate
number ; being either twelve, or lefs, or more. As, to enquire,
whether the king's tenant for life died feifed, whereby the re-
verfion accrues to the king: whether A, who held immediately
of the crown, died without heirs ; in which cafe the lands belong '
to the king by efcheat : wliether B be attainted of treafon ;
■whereby his cftate is forfeited to the crown : whether C, who
lias purchafed lands, be an alien ; which is another caufe of for-
feiture : whether D be an idiot a iiat'ivitate ; and therefore, to-
gether with his lands, appertains to the cuflody of the king :
and other queftions of like import, concerning both the circum-
ilances of the tenant, and the value or identity of the lands.
Thefe inquefts of office v/ere more frequently in practice than at
prefent, daring the continuance of the military tenures amongft
us : when, upon the death of every one of th^ king's tenants,
an inqueft of office was held, called an inquifitio -pofl mortem^ to
enquire of what lands he died feifed, who was his heir, and of
W'hatage, in order to intitle the king to his marriage, v/ardfhip, ^
TtWti, pr'imer-feifin, or other advantages, as the circumilances of
the cafe might turn out. To fuperintend and regulate thefe en-
quiries the court of wards and liveries was inflituted by Itatute
32 lien. VIII. c. 46. which M-as aboliflied at the refloration of
king Charles the fecond, together with the oppreffive tenures

lipon which it v/as founded.

Vf I T \%

\\ Finch. L. 313, 4, 5-

Ch. 17. Wrongs. 25^

W I T H regard to other matters, the inquefts of office flill re-
main in force, and are taken upon proper occafions ; being ex-
tended not only to Jands, but alfo to goods and chattels perfonal,
as in the cafe of wreck, trcafure-trove, and the like; and efpe-
cially as to forfeitures for o3e.iccs. For every jury which
tries a man for treafon or felony, every coroner's inqucil that fits
upon Afelo d^ fe, or one killed by chancemedley, is, not only,
with regard to chattels, but alfo as to real interefts, in all re-
fpeds an inquefl of ofhce: and it they find the treafon or felo-
ny, or even the flight of the party accufed (though innocent) the
king is thereupon, by virtue of this office found, intided to have
his forfeitures; and alfo, in the cafe of chancemedley, Ue or his
grantees are entitled to fuch things, by way of deodand, as have
moved to the death of the party.

These inquells of office were devifed by law, as an authentic
means to^give the king his right by folemn matter of record j
without which he in general can neither take, nor part from, any
thing". For it is a part of the liberties of England, and greatly for
the fafety of the uibjecl, that the king may not enter upon or fsife
any man's poflellions upon bare fiirmifes without the intervention
ofajury"". It is however particularly enacted by the ftatute
33 Hen. VIII. c. 20. that, in cafe of attainder for high treafon,
the king (hall have the forfeiture inflantly, without any inquifi-
tion of office. And, as the king hath no title at all to any pro-
perty of this fort before office found, therefore by the ftatute
18 Hen. VI. c. 6. it was enacted, that all letters patent or grants
of lands and tenements before office found, or returned into the
exchequer, fhali be void. And, by the bill of rights at the re-
volution, I W. & M. 'ft. 2. c. 2, it is declared, that all grants
and promifes of fines and forfeitures of particular perfons before
conviction (which is here the inqueit of office) are illegal and
void ; Y/hich indeed was the law of the land in the reign of
Edward the third'^.

I i 2 With

w Finch L. 8i. y i Inft. 48,

X Gilb. bift. cxch. 131. Hob. 347.

6o

Private

Book III.

♦'

With regard to real property, if an oElce be found for the
king, it puts him in immediate polTeflion, without the trouble of
a formal entry, provided a fubject in the like cafe would have
had aright to enter; and the king fhall receive all the mefne or
intermediate profits from the time that his title accrued*. As
on the other hand, by the articuli fuper cartas^, if the king's
efcheator or llierifFfeife lands into the kings hand without caufe,
upon taking them out of the king's hand again, the party fliall
have the mefne profits reftored to him.

I N order to avoid the poffeffion of the crown, acquired by the
finding of fuch office, the fubjecl may not only have his petition
cfriobt, which difclofes new facls not found by the office, and
his monftrans de droits which rehcs on the facts as found ; but
alfo he may (for the moft part) traverfe or deny the matter of
fact itfelf, and put it in a courfe of trial by the common law pro-
cefs of the court of chancery : yet ftill, in fome fpecial cafes,
he hath no remedy left but a mere petition of right''. Thefe
■ traverfes, as well as the ?nonJlrans de droit, were greatly enlarged
and regulated for thebeneht of the fubject, by the ftatutes be-
fore-mentioned, and others^ And in the traverfes thus given
by ftatute, which came in the place of the old petition of right,
the party traverfmg is confidered as the plaintiff'^; and mull there-
fore make out his own title, as well as impeach that of thecrown,
and then fhail have judgment quod manus domini regis armvean-
tur, &c.

3'

V/here the crown hath unadvifedly granted any thing
by letters patent, which ought not to be granted", or where the
patentee hath done an acT: that amounts to a forfeiture of the

grant^

z Finch. L. 315;, 3^^'
a i8 Etlw. I. ft. 3. c. 19.
b Finch. L. 3i4'

c Stat. 34 Edw. III. c. I
13. a & 3 Edw. VI. c.
d Eaw of uifi p>-ii:s. loz.
e See book II. ch. zi.

3. 36 Edw. Ill,
8.

Ch. 17.

Wrongs.

261

grant^ the remedy to repeal the patent is by writ oi fare facias
in chancery''. This may be brought either on the part of the
king, in order to relume the thing granted ; or, if the grant be
injurious to a fubjecl, the king is bound of right to permit him
(upon his petition) to ufe his royal name for repealing the patent
m2i fare facias^, Andfo alio, if upon office untruly found for
the king, he grants the land over to another, he who is grieved
thereby, and traverfes the office itfelf, is intitled before iflue
joined to -^ fare facias againft the patentee, in order to avoid the
grant'.

4* An information on behalf of the crown, Hied in the ex-
chequer by the king's attorney general, is a method of fuit for
recovering money or other chattels, or for obtaining fatisfadtion
in damages for any perfonal wrong" committed in the lands or
other pofTeffions of the crown. It differs from an information
filed, in the court of king's bench, of which we fhall treat in the
next book; inthat/Z;/j- is inftituted to redrefs a private wrong,
by which the property of the crown is afi'eded, that is calcula-
ted to punilli IbmepubHc wrong, or heinous mifdemefnor in the
defendant. It is grounded on no writ under feal, but merely
on the intimation of the king's officer the attorney-general, who
" gives the court to underftand and be informed of" the matter
in queftion; upon which the party is put to anfwer, and trial
is had, as in fuits betvv'een fubjecland fubject. The mofl ufual
informations are thofe of intrufion and debt : intrufion for any
trefpafs committed on the lands of the crown', as by entering
thereon without title, holding over after a leafe is determined,
taking the profits, cutting down timber, or the like ; and debt^
upon any contract for monies due to the king, or for any forfei-
ture due to the crown upon the breach of a penal ftatute. This
is moll commonly ufed to recover forfeitures occafioned by tranf-
greffing thofe laws, which are enacted for the eftabUfliment and

fupport

f Dyer. ip8.

g 3 Lev. lio. 4 Lift, 88.
344.

h i Ventr.

i Bro. Air. i.fcire facias. 69. 185.

k Moor, 37S,

1 Cro. Jac. *ij. I LeoH. 48, Savil, 49.

262

Private

Book III:

fupport of the revenue: others, which regard mere matters of
police and public convenience, being ufually left to be inforced
by common informers in the qui tarn informations or actions,
of v/hich we have formerly fpoken". But after the attorney
general has informed upon the breach of a penal law, no other
information can be received". There is alio an information in
rem^ when any goods are fuppofed to become the property of the
crown, and no man appears to claim them, or to difpute the
title of the king. As antiently in the cafe of treafure-trove,
wrecks, waifs, and eftrays, fcifed by the king's officer for his ufe.
Upon fuch feifure an information was ufually filed in the king's
exchequer, and thereupon a proclamation was made for the
owner (if any) to come in and claim the effects ; and at the fame
time there iffued a commifTion of appra'ijement to value the goods
in the officer's hands : after the return of which, and a fecond
proclamation had, if no claimant appeared, the goods were fup-
pofed derelict, and condemned to the ufe of the crown". And
when, in later times, forfeitures of the goods themfeives, as
well as perfonal penalties on the parties, were inflicted by act
of parliament for tranfgreffions againilthe laws of the cuftoms
and excife, the fame procefs was adopted in order to fecure fuch
forfeited goods for the public ufe, though the offender himfelf
had efcaped the reach of juflice.

5. A WRIT of quo warranto is in the nature of a writ of
right for the king, againfl him who claims or ufurps any office,
franchife, or liberty, to inquire by what authority he fupports
his claim, in order to determine the right". It hes alfo in cafe
of non-ufer or long neglect of a franchife, or mif-ufer or abufe
of it ; being a writ commanding the defendant to fhew by what
warrant he exercifes fuch a franchife, having never had any grant
of it, or having forfeited it by neglect or abufe. This was ori-
ginally returnable before the king's juflices at Weflminflcr"; but

aftei'-

m See pag. i(Jo.

n Hard. aoi.

• Gilb. hift. of «xch. ch. 13.

p Finch. L. 311. a Inft. aSi.

4 old Nat. 3rev, fol. 107. edit. 1534.

Ch. 17. Wrongs. 2^3

aftcrwiirds only before the juftices in eyre, by virtue of the fta-
tiites of quo warranto, 6 Edw. I. c. i. and i8 Edw. I. ft. 2.-
biit fin cethbrcjuft ices have given place to the king's temporary
commifiioners of aflife, the judges on the feveral circuits, this
branch of the ftatutcs hath loft it's effect ' ; and writs of quo
ivarranto (if brought at all) nmft now be profccuted and deter-
mined bci^orc the king'sjuftices at Weftminfter. And in cafe of
judgment for the defendant, he fhali have an allowance of his
franchife but in cafe of judgment for the king, for that the
party is intitled to no fuch franchife, or hath difufed or abufcd
it, the franchife is citherfeifcd into the king's hands, to be granted
out again to whomever he ihall pleafc ; or, if it be not fuch a
franchife as may fubfift in the hands of the crown, there is
merely judgment of oufur, to turn out the party who ufurpedit'.

The judgment on a writ of quo warranto (being in the na-
ture of a writ of right) is final and conclufive even againft the
crown". Which, together with the length of it's procefs, probably
occafioned that difufe into which it is now fallen, and introduced
a more modern method of profecution, by information filed in
the court of king's bench by the attorney general, in the nature
of a writ of quo warranto ; wherein the procefs is fpeedier, and
the judgm.ent not quite fo decifivc. This is properly a criminal
method of profecution, as well to punifli the ufurper by a fine
for the ufurpation of the franchife, as to oufl him, or feife it
for the crov/n : but hath long been applied to the mere purpofcs
of trying the civil right, feifing the franchife, or oufling the
wrongful pofieffor ; the fine being nominal only.

During the violent proceedings that took place in the latter
end of the reign of king Charles the fecond,it was among other
things thought expedient to new-model moil of the corporation
towns in the kingdom; for which purpofe many of thofe bodies

■were

r i Inft. 49«. Raft. Eatr, 540. t Cro. Jac- ijy. i Show. zSo.

s i luft. 49!). u I Sid. \iS. 3, Show. 47. la Moel. asj.

264

Private Book III.

were perfuadeci to furrender their charters, and informations in
the nature of quo warranto were brought againft others, upon a
fuppofed, or frequently a real, forfeiture of their franchifes by
neglect or abufe of them. And the confequence was, that the
liberties of moll of them were feifed into the hands of the king,
•who granted them frefli charters with fuch alterations as were
thought expedient; and, during their ftate of anarchy, the crown
named all their magiftrates. This exertion of power, though
perhaps mfununojure it was for the moft part ftri6tly legal, gave
a great and jufl alarm ; the new-modeUing of all corporadons
being a very large ftride towards eftabliihing arbitrary power :
and therefore it was thought necelTary at the revolution to bridle
this branch of the prerogative, at leaft fo far as regarded the
metropoHs, by flatute 2 W. & M. c. 8. which enacls, that the
franchifes of the city of London jQiail never be forfeited again
for any caufe whatfoever.

This proceeding is however now applied to the decifion of
corporation difputes between party and party, without any inter-
vention of the prerogative, by virtue of the flatute 9 Ann. c. 20.
which permits an information in nature of quo ivarraiito to be
brought with leave of the court, at the relation of any perfon
defiring to profecute the fame, (who is then filled the relator)
ao^ainft any perfon ufurping, intruding into, or unlawfully hold-
ingfany franchife or oilice in any city, borough, or town corpo-
rate; provides for it's fpeedy determination ; and directs that, if
the defendant be convicted, judgment of ouiler (as well as a fine)
may be given againft him, and that the relator fliail pay or re-
ceive cofls according to the event of the fuit.

6. The v^rito^ mandamus^ is alfo made by the fame ftatute
9 Ann. c. 20. a moft full and effectual remedy, in the firft place,
for refufal of admifiion where a perfon if intitled to an office or
place in any fuch corporation ; and, fecondly, for wrongful re-
moval, when a perfon is legally pofleiied. Thefe are injuries,

for

w See pag. no. ,

Ch. 17. Wrongs. 26 §

for which though redrcfs for the party interefted may be had by
afllfe,or other means, yet as the fnmchifes concern thepubHc, and
may affedl the adminiftration of juilice, this prerogative writ alfo
iflucs from the court of king's bench ; commanding, upon good
caufc (Iiewn to the court, the party complaining to be admitted
or reftored to his office. And the ilatute requires, that a return
be immediately made to the firfi; writ of ?najidamus ; which re-
turn may be pleaded to or traverfed by the profecutor, and his
antagonift may reply, take iffue, or demur, and the fame pro-
ceedings may be had, as if an action on the cafe had been brought
for making a falfe return : and, after judgment obtained for the
profecutor, he fliall have a peremptory writ of mandamus to com-
pel his admiflion or reftitution; which latter (in cafe of an ac-
tion) is effecled by a writ of reftitution^. So that now the writ"
of mandamus, in cafes within this ftatute, is in the nature of au
action, and a writ of eiTor may be had thereon -\

This writ o^ mandamus may aUb be ifflicd, in purfuance of
the ftatute 1 1 Geo. I. c. 4. in cafe u'ithin the regular time no
election fhall be made of the mayor or other chief ofiicer of any
city, borough, or town corporate, or (being made) it fhall after-
wards become void; to require the eleftors to proceed to electicn,
and proper courts to be held for admitting and fwearing in the
magiftrates fo refpedtively chofen.

W E harve now gone through the whole circle of civil injurieSj
and the redrcfs which the laws of England have anxioufly pro-
vided for each. In which the ftudent cannot but obferve, that
the main difficulty which attends their difcufiion arifes frotn
their great variety, which is apt at our firft acquaintance to breed
a confufiori of ideas, and a kind of diftraclion in the memory :
a difficulty not a little increafed by the very immethodical ar-
rangement, too juftly compbined of in our antient writers ;
but which will infenfibly wear away when they come to be re-
VoL. III. • K k confidered,

X II Rep. 7?. yi P. Wms. 351.

266 P R I V A»T E Book 111.

confidered, and we are a little familiarized to tliofe terms of art
in which the language of our anccflors has obfcurcd them<.
Terms of art there will unavoidably be in all fciences ; the caly
conception and thorough compi'ehenfion of which mufl de-
jpend upon frequent ufe : and, the more fubdivided any branch of
icience is, the more terms muft be ufed to exprefs the nature of
their feveral fubdivifions, and mark out with fufficient precifion
the ideas they are meant to convey. This difliculty therefore,
however great it may appear at firft view, will ilirink to nothing
upon a nearer approach ; and be rather advantageous than of any
dilTervice, by imprinting a clear and diflincl notion of the nature
of thefe feveral remedies. And, fuch as it is, it arifes princi-.
pally from the excellence of our Englifii laws ; which adapt their
redrefs exactly to the circumftances of the injury, and do not
fiu-nifli one and the fame action for different wrongs, which are
impoffible to be brought within one and the fame defcription :
whereby every man knows what fatistaftion he is entitled to ex-
pett from the courts of juftice, and as little as poflible is left in
the bread of the judges, whom the law appoints to adminifler,
and not to,prefcribe the remedy. And I may venture to afiirm,
that there is hardly a pofiible injury, that can be offered either to
the perfon or property of another, for which the party injured
may not find a remedial writ, conceived in fuch terms as are pro-
perly adapted to his own particular grievance.

I N the feveral perfonal actions which we have curforily ex-
plained, as debt, trefpafs, detinue, adion on the cafe, and the
like, it is eafy to obferve how plain, perfpicuous, and limple tlie
remedy is, as chalked out by the antient common law. In real
aiftions for the recovery of landed and other permanent property,
as the riffht is more intricate, the feodal or rather Norman re-
medy by real actions is fomewhat m.ore complex and difficult,
and attended with fome delays. And fmce, in order to obviate
thofe difiiculties, and retrench thofe delays, we have permitted
the rights of rcal property to be drawn into quettioii in mixed
or perfonal fuits, wc arc (it mull be owned) obliged to have re-

courfe

Ch. 17. ' Wrongs. ' -267

. couifc to fucli arbitrary ficllons and expedisnts, that iinlefs we
had developed their principles^ and traced ,out their progrefs
and hiitory, ourprelcnt fyftem of remedial jurifprudence (in
refpec't of landed property) would appeai- the moll intricate
and unnatural, that ever was adopted by a free aiid enlightened
people.

But this intricacy of our legal procefs will be found, when
attentively confidered, to be one of thofe troubleforpe, but not
dangerous, evils which have their root in the frame of our confti-
tution, and which- therefore can never be cured, without hazard-
ing every thing that is dear to us. In abfolute governments, when
. new arrangements of property and a gradual change of manners
have deftroyed the original ideas, on which the laws were devifed
and eflabliihed, the prince by his edict may promulge a new
code, morefuited to the prcf^nt emergencies. But when laws
are to be framed by popular afiemblies, even of the reprefenta-
tive kind, it is too Herculean a talk to begin the work of legif-
lation afreih, and extract a new fyftem from the difcordant opi-
nions of more thanlii^e hundred counfellors. A fmgleleglflator
or an enterprizing fovereign, a Solon or Lycurgus, a Juftinian or
a Fi^ederick, may at any time form a concife, and perhaps an
uniform, plan of jufiice ; and evil betide that prefumptuous'fub-
jecT v/ho queftions it's wifdom or utility. But who, that is ac-
quainted with the diiHculty oi new modelling any branch of our
ftatute laws (tho' relating but to roads or to pariili-fettlements)
will conceive it ever feafible to alter any fundamental point of the
common law, with all it's appendages and confequents, and fet
up another rule in it's (lead ? When therefore, by the gradual in-
fluence of foreign trade and domeftic tranquillity, the fpirit of our
military tenures began to decay, and at length the whole llruc-
turewas removed, the judges quickly perceived that the forms
and delays of the old feodal actions, (guarded with their feveral
outworks of eifoins, vouchers, aid-prayers, and a hundred other
form.idable intrenchments) were ill-fuited to that more fimple
and commercial mode of property which fucceeded the former, ,

K k 2, , and

768 Private Book III."'

and.requlredamorc fpeedy declfion of right, to facilitate ex-
change and alienation. Yet they wifely avoided foliciting any
great legillative revolution in the old eftabhfhed forms, which
rnight have been produclive of confequences more numerous and
extenfive tha;n the moft penetrating genius could forefee ; but left
them as they were, to langu;lh in obfcurity and oblivion, and en-
deavoured by a feries of minute contrivances to accommodate fuch
perfonal actions, as were then in ufe, to all the moft ufefwl purpo-
ies of remedialjuftice : and where, through the dread of inno-
vation, they hefitated at going fo far as perhaps their good fenfe
would have prompted them, they left an opening for the more
liberal and enterprizing judges, who have fate in our courts of
equity, to Ihev/ them their error by fupplying the omiffions of
the courts of law. And, fince the new expedients have been
refined by the practice of more than a century, and are fufficiently
known and underftood, they in general anfwer tli^ purpofe of
doing fpeedy and fubftantial juftice, much better than could now^
be efFe6led by any great fundamental alterations. The only dif-
ficulty that attends them arifes from their fictions and circuities,
but, when once we have difcovered the proper clew, that laby-
jinth is eafily pervaded. We inherit an old Gothic caftle, eredted
in the days of chivalry, but fitted up for a modern inhabitant.
The moated ramparts, the embattled towers, and the trophied
halls, are magnificent and venerable, but ufelefs. The inferior
•apartments, nov/ converted into rooms of convenience, are chear-
ful and commodious, though their approaches are winding and
diihcult.

In this part of our difquifitions I however thought it my duty
to unfold, as far as intelligibly I could, the nature of thefe r '
aftions, as well as of perfonal remedies. And this not only : .
caufe they are flill in force, ftill the law of the land, thotj; -
pbfolete and difufed ; and may perhaps, in their turn, be her.
after with fome neceilary corredions called out again into co?
Iiion ufe J but alfo becaufe,as a fenfible writer has well obferv

" wlu

s Hawk. Abr. Co. Litt. pref.

Ch. 1 7.

Wrongs.

a

a

269

whoever confidcrs how great a coherence there is between the
feveral parts of the law, and how much the reafon of one
cafe opens and depends upon that of another, will I prefume
*' be far from thinking any of the old learning ufelefs, which
" will fo much conduce to the perfeft underftanding of the mo-
" dern." And befides I ihould have done great injuflice to the
founders of our legal conftitution, had I led the ftudent to ima-
gine, that the remedial inftruments of our law were originally
contrived in fo complicated a form, as we now prefent them to
his view: had I, for inftance, intirely pafled over the dired and
obvious remedies by affifes and writs of entry, and only laid be-
fore him the modern method of profecuting a writ of ejedment,

270 Private Book III-

Chapter the eighteenth.
Of the pursuit of REMEDIES by ACTION;

AND, FIRST, OF THE ORIGINAL WRIT.

A VIN G, under the head oiredrefs by fuit in courts^ pointed
out in the preceding pages, in the firil place, the nature
and feveralyJ)£'^/Vi' of courts of juflice, wherein remedies are ad-
miniftred for all forts of private wrongs; and, in the fecond
place, fhewn to which of thefe courts in particular application
rnuft be made for redrefs, according to the diftinflion of inju-
ries, or in other words, what v/rongs are cognizable by one court,
and what by another; I proceeded under the title oi injuries
cognizable by the courts of cojjvmonlaiv, to define and explain the
fpecifical remedies by aclion, provided for every poffible degree
of wrong or injury ; as well fuch remedies as are dormant and
out of ufe, as thofe which are in every days practice, appre-
hending that the reafon of the one could never be clearly com-
prehended, without fome acquaintance with the other : and, I
am now, in the laft place, to examine the manner in which thefe
feveral remedies are ■purjued and applietl, by aclion in the courts '
of common law; to which! fliall afterwards fubjoin a brief ac-
count of the proceedings in courts of equity.

. In

Ch. 18. Wrongs. 271

I N treating of remedies by aclion at common law, I fliall
confine myfclf to the modern method of praclice in our courts of
judicature. For, though I thought it necellary to throw out a
few obfervations on the nature of real actions, however at pre-
fent difufed, in order to demonftrate the coherence arwi unifor-
mity of our legal conflitution, and that there was noninjury fo
obilinate and inveterate, but which might in the end be eradi-
cated by fome or other of thofe remedial writs j yet it would be
too irklbmeatalk to perplex both my readers and myfelf with
explaining all the rules of proceeding in thefe obfolete actions ;
which arc frequently mere poficive eftablifhments, the fornia et
figura jiidicn^ and conduce very little to illuftrate the reafon and
fundamental grounds of the law. Wherever I apprehend they
may at all conduce to this end, Illiall endeavour to hint at them
incidentally.

What therefore the fludcnt may expect in this and the fuc-
ceedin'g chapters, is an account of the method of proceeding in
and profecuting a fuit upon any of the perfonal writs we have
before fpoken of, in the court of common -pleas at Weftminfter ;
that being the court originally canilituted for the profecution of
all civil actions. It is true that the courts of king's bench and
exchequer, in order, without intrenching upon antient forms, to
extend their remedial influence to the neceffities of modern times,
hav-e now obtained a concurrent jurifdiction and cognizance of
civil fuits : but, as caufes are therein conducted by much the
fame advocates and attorneys, and* the feveral courts and their
judges have an entire communication with each other, the me-
thods and forms of proceeding are in all material refpefts the
fame in all of them. So that, in giving an abftract or hiftory *
of the progrefs of a fuit through the court of common pleas, we

fliaU

a In deducing this hiftory the ftudent from experience and attendance on the

mufl not expert authorities to be conflantly courts. The compiler muft therefore be

cited; as prnftical knowlege is not fo much frequently obliged to rely upen his owa

to Ik learned from any books oi law, as oI)fervations ; which in general he ha^h been

ftudious

72

P R I V A T £

Book III,

fliall at the fame time give a general account of the proceedings
of the other two courts ; taking notice however of any. confider-
able difference in the local pradtice of each. And the fame ab-
ftrad will moreover afford us fome general idea of the conduct
of a caufe in the inferior courts of common law, thofe in cities
and boroughs, orin the court-baron, or hundred, or county court:
all which^ conform (as near as may be) to the example of the
fuperior tribunals, to which their caufes may probably be, in
fome flage or other, removed.

The mofl natural and perfpicuous way of conlidering the fub-
jecl before us, will be (1 apprehend) to purfue it in the order and
method wherein the proceedings themfelves foUow each other;
rather than to diftrad and fubdivide it by any more logical ana-
lylis. The general therefore and orderly parts of afuit are thefe;
T. The original writ: 2. Theprocefs: 3. The pleadings: 4. The
iffue or demurrer: 5. The trial: 6. The judgm.ent, and it's
incidents: 7. The proceedings in nature of appeals: 8. The
execution.

First, then, of the original, or original writ ; which is the
beginning or foundation ofthefuit. When a perfon hath recei-
ved an injury, and thinks it worth his while to demand a fatis-
faclion for it, he is to confider with himfelf, or take advice, what
redrefs the law has given for that injury j and thereupon is to

make

ftuJious to avoid, where thofe of any otfaer
might be had. To accompany and illuftrate
thefe remarks, fuch gentl»tnen as are Je-
Jigned for the profeflion will find it necef-
fary to perufe the books of entries, antient
and modern ; which are tranfcripts of pro-
ceedings that have been had in fome par-
ticular adtions. A book or two of techni-
cal learning will alfo be found very conve-
nient ; from which a man of a liberal edu-
cation and tolerable underftanding may
glean pro re nafa as much as is fufficient for
bis purpofc. Tbefc books of praU.ke, as they

are called, are all pretty much on a level, in
point of conipofit ion and folid inftruftion 5
fo that that which bears the lateO editiori
is ufually the bed. But Gilberfs hi'Iory and
praBicc of the court of common pleas is a book
of a very different ftanip ; and though (like
the reft of his pofthumons works) it has fuf-
fered mod gfofsly by ignorant or carele/s
traufcribcrs, yet it ]\as traced out the rcafon
of many parts of our modern praiflice, from
the feodal inftitutions and the piimitive con-
ftruftion of our courts, in a moft clear and
ingenious manner.

%

Ch. 1 8. Wrongs. 273

make application or fnit to the crown, the fountain of all juf-
tice, for that particular fpecific remedy which he is determined
or advifed to purfue. As, for money due gn bond, an adion of
debt ; for goods detained without force, an action of det'mue or
trover-, or, if taken with force, an aclion of trefpafs vi et armis ;
or, to try the title of lands, a writ of entry or action of trefpafs
in ejedment; or, for any confequential injury received, a fpecial
action on the cafe. To this end he is to fue out, or purchafe by
paying the ftated fees, an original or original writ, from the court
of chancery, which is the officina juftitiae^ the lliop or mint of
juftice , wherein all the king's writs are framed. It is a manda-
tory letter from the king in parchment, fcaled with his great
feaP, and directed to the flieriff of the county wherein the in-
jury is committed or fuppofed fo to be, requiring him to com-
mand the wrongdoer or party accufed, either to do juftice to the
complainant, or elfe to appear in court, and anfwer the accufa-
tion againft Iiira. Whatever the flieriff does in purfuance of this
writ, he muft return or certify to the court of common pleas,
together with the writ itfelf : which is the foundation of the
jurifuiction of that court, being the king's warrant for the judges
to proceed to the determination of the caufe. For it was a maxim
introduced by the Normans, that there Ihould be no proceedings
in common pleas before the king's juftices without his original
writ ; becaufe they held it unfit that thofe juftices, being only
the fubftitutes of the crown, fhould take cognizance of any thing
but what was thus exprefjy rd'ferred to their judgments How-
ever, in fmall actions, below the value of forty lliillings, which
are brought in the court-baron or county court, no royal writ
is necefiary: but the foundation of fuch fuits continues to be (as
in the times of the Saxons) not by original writ, but by plaint '^ j
that is, by a private memorial tendered in open court to the pudge,
wherein the party injured fets forth his caufe of aftion : and the
judge is bound of commion right to adminifter juftice therein,
without any fpecial mandfte from the king. Now indeed even
Vol. III. LI . the

b Finch. L. 137. d INIirr. c. j §. 3.

c Flet. /. 1. c. 34,

274 Private Book III.

the royal writs are held to be demandable of common right, on
paying the-uiual fees : for any delay in the granting them, or
letting an unufual or exorbitant price upon them, would be a
breach of magna carta, c. 29, " niiUi vendetnus, iiuUi negab'unus,
** aiit d'l^eremus jiijl'itlam vel redum.'"

Original writs are either- optional or peremptory ; or in
the language of our law, they are either 2i praecipe, or a ^xjitefe-
cerit fecuriinf . The praecipe is in the alternative, commanding
the defendant to do the thing required, or fhew the reafcn where-
fore he hath not done it^ The ufc of this writ is where fome-
thing ce^rtain is demanded by the plaintiff, which is in the power
of the defendant himfelf to perform ; as, to rcftore the poflef-
iioa of land, to pay a certain liquidated debt, to perform a fpe-
cific covenant, to render an account, and th^ like : in all which
cafes the writ is drawn up in the form of 2i praecipe or command,
to do thus or fliew caufe to the contrary ; giving the defendant
his choice, to redrefs the injury or ftand the fuit. The other
fpecies of orighial writs is called ?ifi feceiit te fecurum, from the
words of the writ; which directs the flieriffto caufe the defen-
dant to appear in court, without any optiongiven him, provided
the plaintiff' gives the fheriff fecurity effeclually to profecute his
claim ^. This writ 'is in ufe, where nothing is fpccifically de-
manded, but only a fatisfaclion in general ; to obtain which and
minifter complete redrefs, the intervention of fome Judicature is
neceiTary. Such arc writs of trefpafs, or on the cafe, wherein
no debt or other fpecilic thing is iued for in certain, but only
damages to be affeiTed by a jury. For this end the defendant is
immediately called upon to appear in court, provided the plain-
tiff gives good fecurity of profecuting his claim. Both fpecies
of writs are tefte'd, or witneffed, in the king's own name ; " wit*
" nefs ourfelf at Weftminfter," or wherever the chancery may-
be held,

* .The

e Finch. L. 157. g Append. N". II. §. i.

f Aipeud. N^.III. §. I.

Ch. 1 8. VVr o n g, 3. 275

T H E fecurity here fpokcn of, to be given by the plaintifT for
profccutingliis claim, is common to both writs, tliouch it gives
denomination only to the latter. The M^hole of it is at prefent
become a mere matter of form ; and John Doe and Richard Roe
are always retnrned as the (landing pledges for this purpolc. The
antient ufe of them Avas to anfwer for the plaintiff; who in cafe
he brought an aclion Vv-ithout caufe, or failed in the profecution
of it when brought, was liable to an amercement from the crown
for raifinga falfc accufation ; and fo the form of the judgment
ftiil is'\ In like manner as by the Gothic conftitutionvS no per-
fon was permitted to lay a complaint againft another, " 7:1/1 fiib
" fcriptura aut fpec'ijicat'ione triiim tcjl'ntm^ quod a6f'rone?}i 'vellet per^
'-^ feqiii':''' and, as by the laws of Sancho I, king of Portugal,
damages were given againil a plaintiff who profecutcd aground-
lefs action".

The day, on which the defendant is ordered to appear in
court, and on which the flicriffis to bring in the writ and report
how far he has obeyed it, is called the return oi the writ; it
being then returned by him to the king's juflices at Weflminfler.
And ic is always made returnable at the diliance of at leafl fifteen
days from the date ovfefie, that the defendant may have time to
come up to Weftminfter, even from the moft remote parts of the
kingdom ; and upon fome day in one of the four ter7ns, in which
the court fits for the difpatch of buunefs.

These terms are fuppofed by Mr Selden' to have been in-
flituted by William the conqueror : but hr Henry Speiman.hath
clearly and learnedly ffiewn, that they were gradually formed
from the canonical conftitutions of the church ; beins: indeed no
other than thofe Icifure feafons of the year, which were not oc-
cupied by the great feflivals or falls, or which were not liable tp *
the general avocations of rural bufmeis. Throughout all chrif-

Ll 2 tendomj

h Finch. L. 189. isj, k Mod. Un. Hift. xxli. 4J»

i Sti»nih. dcjurc Cither. I. 5. c, 7, I J,w. ^/;^. /. z, .5. 9,

276

Private Book III.

tendom, invery early times, the whole year was one continual
term for hearing and deciding caiifcs. For the chrillian magif-
trates, to diftingiiifli themfelves from the heathens, who were
extremely fuperftitioiis in the obfervation of their diesfajli et -ne-
fajli, went into a contrary extreme, and adminiftred juflice up-
on all days alike. Till at length the church interpofed and ex-
empted certain holy feafons from being profaned by the tumult
of forenfic litigations. As, particularly, the time of advent and
chriftmas, which gave rife to the winter vacation; the tiijie of
lent and eafter, which created that in the ipring ; the time of
pentecoft, which produced the third j and the long vacation,
between midfummer and michaelmas, which was allowed for
the hay time and harveft. All lundays alfo, and fome peculiar fef-
tivals, as the days of the purification, afcenfion and fome others,
vvTre included in the fame prohibition ; which was eftabliflied
by 2. canon of the church, A. D. 517. and was fortified by an
imperial conftitution of the younga' Tlieodofius, comprized in-
the Theodofian code".

After WARDS, when our own legal conftitution came to be
fettled, the commencement and duration of our law terms were
'appointed with an eye to thofe canonical prohibitions ; and it was,
ordered by the laws of king Edward the confeiTor", that from
advent to the oclave of the epiphany, from feptuagefitna to the
oclave of eafter, from the afcenfion to the octave of pentecoft,
and from three in the afternoon of all faturdays till monday
morning, the peace of God and of holy church lliall be kept
throughout all the kingdom. And fo extravagant was afterwards
the regard that was paid to thefe holy times, that though the
author of the mirror° mentions only one vacation of any confi-
derable length, containing the months of Auguft and Septem-
ber, yet Eiitton is exprefb", that in the reign of king Edward the
firft no fecular plea could be held, nor any man fv/orn on the

evange-

m Spelinrin of the terms. o c. 3. §. 0.

n c: 3. de liinpofrrjs ct dichis pads, Y: ^- ih

Cli. i8. Wrongs. 277

evangelifts'', in the times pf advent, lent, pentecoft, harveft and
vinta<'-e, the days of the great licanies, and all folemn fcftivals.
But he adds, that the bifliops and prelates did neverthelefs grant
difpenfations, (01 which many are prcferved in l^yvcvtr's foedera
of the time of king Henry the third) that afiifes and juries might
be taken in feme of thefe holy feafons upon reafonable occa-
fions. And foon afterwards a general difpenfation was eflabliflied
in parhunent, by ftatute Wellm. i. 3 Edw. I. c. 51. which de-
clares, that " forafmuch as it is great charity to do right Unto
" all men at all times when need fhall be, by the affent of all
*' the prelates it was provided, that afiifes oi novel d'ljfcifin mort
" d* anceftor, smd darrein pre/entment flrould be taken in advent,
" feptuageiima, and lent, even as well as inquefts may be taken ;
" and that at the fpecial requeft of the king to the bifliops/* The
portions of time, that were not included within thefe prohibited
feafons, fell naturally into a fourfold divifion ; and, from fome
fellival or faint's day that immediately preceded their commence-
ment, were denominated the terms of St Hilary, of Eaftcr, of
\ the holy Trinity, and of St Michael : which terms have been
fince regulated and abbreviated by feveral acts of parliament ;
particularly Trinity term by ftatute 32 Hen. VIII. c. 2. and Mi-
chaelmas term by ftatute 16 Car. I. c. 6. and again by ftatute
24 Geo. II. c. 48.

Th E R E are in each of thefe terms ftateddays called days in bank^
dies in banco ; that is, days of appearance in the court of com-
mon pleas, called ufually banciim or commune bancvm, to dlftin-
guiih it from bancum regis or the court of king's bench. They
are generally at the diftance of about a w^eek from each other,
and regulated by fome feftival of the church. On fome one of
thefe days in bank all original writs muft be made returnable ;
and therefore they are generally called the returns of that term ;
vhereof every term has more or lefs, faid by the mirror"" to have
. -en originally fixed by king Alfred, but certainly fettled as early
le ftatute of 51 Henry III. ft. 2. But though many of the

return

s8. ■ t c. J. §. 108.

278

Private Book III.

return days are fixed upon fundays, yet the court never fits to
receive thefe returns till the mcnday after ': and therefore no
proceedings can be had, or judgment can be given, or fuppofed
to be given on the funday^

The firfl return in every term is, properly fpeaking, the firft
day in that term; as, for inftance, the odave of St Hilary, or
the eighth day incluiive after the feaft of that faint ; which fall-
ing on the thirteenth of January, the o6lave therefore or firft day
of Hilary term is the twentieth of January. And thereon the
court fits to take efoigns, or excufes for fuch as do not appear ac-
cording to the fummons of the writ^ wherefore this is ufually
called the e/fo!g?i day of the term. -But the perfon fummoned has
three days of grace, beyond the return of the writ, in which to
make his appearance ; and if he appears on the fourth day in-
cluiive, the quarto die po/l, it is fufficient. For our fturdy an-
ceftors held it beneath the condition of a freeman to be obliged
to appear, or to do any other act, at the^ precife time appointed
or required. The feodal law therefore always allowed three dif-
tinctdays of citation, before the defendant was adjudged contu-
macious for not appearing" : preferving in this refpecl the Ger-
man cuHom, of which Tacitus thus fpeaks"', " illud ex libertate
" vltlum^ quod non fimid nee jiijfi convemunt: fed et alter et tertius
" dies cundatiom coeuntium ahjumitur" And a fimilar indulgepce
prevailed in the Gothic conftitution : " illud enim iiiniiae Uhertatis
" indicium^ concejfa toties impunities non parendi ; nee enim trinisyz^-
*' dicii confeffibus poenam perditae caufac contiimax meruit^ ,^^ There-
fore, at the beginning of each term, the court does not fit for
difpatch of bufmefs till \ht fourth day, as in Hilary term on the
twenty third of January, and in Trinity term, by. ftatute
32 Hen. VIII. c. 21. not till the fixth day; which is therefore
ufually called and fet down in the almanacs as the firft day of the
term.

s Regiftr. 19. Snlk. (,%-,. 6 Mod. ixo. u Feud. /.a. t. xz.

t I Jon. 156. Swaiin Be Bioonie. B. R, w demor. Germ. c. rr.

Mi(h. 5. Gee. III. et in Dom. Proi. i-;66. x Sdcrnh. dejafe Coth. I. 1. c. C.

CIi. 19. Wrong s. 279

Chapter the nineteenth.

Of process.

T^HE next flep for carrying an the fuit, after filing out the
original, is called the procefs ; being the means of com-
pelling the defendant to appear in court. This is fometin>es called
vriglnal procefs, being founded upon the original writ ; and alfo
to diflinguifli it from tnejne or intermediate procefs, which iffues,
pending the fuit, upon fome collateral interlocutory matter; as to
fummon juries, witneffes, and the Hke\ Mefne procefs is alfo
fometimes put in contradiftinclion to fmal procefs, or procefs of
execution; and then it iignilies all fuch procefs as intervenes be-
tween the beginning and end of a fuit.

But procefs, as we are now to coniider it, is the method
taken by the law to compel a compliance with the original writ
of which the primary ftep is by giving the party notice to obey
it. This notice is given upon all real praecipes, and alfo upon all
perfonal writs for injuries not againft the peace, hy fummonsi
which is a warning to appear in court at the return of the ori-
ginal writ, given to the defendant by two of the flieriff's mef-
fengers cd.\\ed fummoners, either in perfon or left at his houfe or
land'': in like manner as in the civil law the firft procefs is by
perfonal citation, in Jus vocando''. This warning on the land is

, given

a Finch. L.43ff, c fy. 3. 4. i,

b Ibid. 344. 35i.

28o Private Book III.

given, in real actions, by ereding a white flick or wand on the
defendant's grounds'^; (which ftick or wand among the northern
nations is called the bacuhcs niinciatorius^) and by Itatute 31 Eliz.
c. 3. the notice muft alfo be proclaimed on fome funday before
thedoorof the parifh church. ^

I F the defendant difobeys this verbal monition, the next pro-
cefs is by writ of attachment, or po?ie, lo called from the words
of the writ^, '■'■ pone fer vadiian et fahos plegios , put by gage and
" fafe pledges A. B. the defendant, &c'* This is a writ, not if-
fuing out of chancery, but out of the court of common pleas,
being grounded on the non-appearance of the defendant at the
return of the original writ; and thereby the fheriffis commanded
to attach him, by taking gage, that is, certain of his goods,
which he fhall forfeit if he doth not appear^; or by making him
ilndfafe pledges or fureties, M^ho fliall be amerced in cafe of his
non-appearance''. This is alfo the firft and immediate procefs,
without any previous fammons, upon actions of trefpafs vl et
armis, or for other injuries, which though not forcible are yet
trefpafTes againit the peace, as deceit and con/piracy ' ; where the
violence of the wrong requires a more fpeed '^ remedy, and
therefore the original writ commands the defendant to be at once
attached, without any precedent warning^'",

I F, 2St&Y attachment, the defendant neglects to appear, he not
only forfeits this fecurity, but is moreover to be Li-rther com-
pelled by writ of di firing- as ', oi' dijjrefs, infinite / which i;} a fub-
fequent procefs ifTuing from the court of common pleas, cona-
manding the flieriiT to diOrein the defendant from time to time
and continually afterwards, by taking his goods and the profits
of his lands, which he forfeits to the king if he doth not appear '".

In

A Dalt. of (her. c. 31. i Finch. L. 305. 351.

e Stienli. de jure Stieon. I. t. c. tf. k Append. N°. II. §. T.

f Append, N°. III. §. j. 1 Append. N°. III. §. 3,.

g Fiach. L. 345. m Finch, L. 35*,
h QAt. i]i«r. c. 32.

Ch. 19. Wrongs. 281

In like manner as by the civil law, if the defendant abfconds, fo
that the citation is of no effed, " fiiittitur adverfarius in pjjejfio-
" nemhononimejus'

.11 »

An d here by the common, as well as the civil, law the pro-
cefs ended in cafe of injuries without force : the defendant, if
he had any fubltance, being grzKlually ftripped of it all by re-
peated diihefles, till he rendered obedience to theking'b writ ;
and, if he had no fubftance, the law held him incapable of
making fatisiaction, and therefore looked upon allfarther procefs
as nugatory. And beiides, upon feodal principles, the perfon of
a feudatory was not liable to be attached for injuries merely civil
left thereby his lord fnould be deprived of his perfonal fervices.
But, in cafes of injury accompanied with force, the law, to
punifn the breach of the peace and prevent it's difturbance for
the future, provided alfo a procefs againft the defendant's perfon,
in cafe he neglected to appear upon the former procefs of attach-
ment, or had no fabilance whereby to be attached ; fubjefting
his body toimprifonment by the writ of capias ad refpondendunf .
But this immunity of the defendant's perfon, in cafe of peace-
able though fraudulent injuries, producing great contempt of the
law in indigent wrongdoers, a capias was alfo allowed, to arreft
the perfon, in actions oi account, though no breach of the peace
be fuggefted, by the ftatutes of Marlbridge, 52 Hen. III. c. 23.
and Weftm. 2, 1 3 Edw. I. c. 1 1. in actions of debt^ and detinue, by
ftatute 25 Edw. III. c. 17. and in all adions on the cafe, by
ftatute 19 Hen. VII. c. 9. Before which laft ftatute a practice had
been introduced of commencing the fuit by bringing an original
writ of trefpafs quare claufum fregit, for breaking the plaintiff's
clofe, vi et armis ; which by the old common law fubjected -the
defendant's perfon to be arrefted by writ of capias : and then af-
terwards, by connivance of the court, the plaintiff might pro-
ceed to profecute for any other lefs forcible injury. This prac-
tice (through cuflom rather than neceflity, and for faving fome
trouble and expenfc^, in fuing out a fpecial original adapted to the
Vol. III. M m parti-

n F/. i. 4. 19. o. 3 Rep. 14.

282 Private Book III.

particular injury) flill continues in almofl all cafes, except in
aclions of debt; though now, by virtue of the ftatutes above
cited and others, a capias might be had upon almoll every fpecies
of complaint.

If therefore the defendant beins: fummonedor attached makes
default, and neglects to appear; or if the fherifi return^ ^nibil,
or that the defendant hath nothing whereby he may be fummon-
ed, attached, or diilrcined; the capias now ufuaily iffues^, being
a writ commanding the iheriil to take the body of the defend-
ant if he may be found in his bailiwick or county, and liim
fafely to keep,To that he may have him in court on the day of
the return, to anfwer to the plaintiff of a plea of debt, or tref-
pafs, &c, as, the cafe may be. This writ, and all others fubfe*
quent to the original vvTit, pot ifTuing out of chancery but from
the court into which the original was returnable, and being
grounded on what has pafled in that court in confequence of the
Iherifi's return, are cdlled J udiciaf, not original, writs ; they ifTue
under the private feal of that court, and not under the great feal
of England ; and are tejie'd, not in the king's name, but in that
of the chief juftice oijly. And thefe feveral writs being grounded
on the flieriif's return, muft refpeclively bear date the fame day
on which the writ immediately preceding was returnable.

This is the regular and orderly method of procefs. But it
3S nowufual in practice, to fue out the capias in the firfi: inftancc,
upon a fuppofed return of the fiieriff; efpecially if it be fufpecled
that the defendant, upon notice of the action, willabfcond : and
afterwards aficlitious original is drawn up, with a proper return
thereupon, in order to give the proceedings a colour of regula-
rity. When this capias is delivered to the fheriiT, he by his un-
der-fheriff grants a warrant to his inferior oflicers, or bailiffs, to
execute it on the defendant. And, if the llieriff of Oxfordlhire
(in which county the injury is fuppofed to be committed and the
adionis laid) cannot find the defendant in his jurifdiclion, he

returns

P Append, N°. III. 5. i-

Ch. 19. Wrong s. 283

returns that he is not found, non eft inventus^ in his bailiwick :
whereupon another writ iil'ues, called a teftatum capias'^, di-
rected to the llieriil'of the county where the defendant is fup-
* pofed to refide, as of Berkfhirc, reciting the former writ, and
that it is teftificd^ teftatum tft^ that the defendant lurks or wanders
in his bailiwick, wherefore he is commanded to take him, as in
the former capias. But here alfo, when the action is brought ia
one county and the defendant lives in another, it is ufual, for
faving trouble, time, and expenfe, to make out 2i t eft atimi capias
at the firit ; fuppofmg not only an original, but alfo a former ca-
pias, to have been granted, which in fact never was. And tliis
liclion, being beneiicial to all parties, is readily acquiefced in and
is now become the fettled practice ; being one among many in-
flaaces to illuftrate that ma.^ini of law, that in Jidione jurii cow
Jiftit aequitas.

But v/here a defendant abfconds, and the plaintiff would
proceed to an outlawry againll him, an original writ muft then
be fued out regularly, and after that a capias. And if ths ilicriif
cannot find the defendant upon the firll writ of capias, and yq-
twvns 2. 7ion eft inventus, there iifues out an alias writ, and after
that a pluries, to the fame effect as the former"": only alter
thefe words " we command you," this claufe is inferted, " as
" wGhivefornterl)," or, *' as we have often, commanded you ;
*' ftcut alias," or, '^Jicut pluries, praecepimus." And if a ncn ejl in-
ventus is returned upon all of them, then a writ of exigent of
exigi facias may be fued out% which requires the flieriff to
caufe the defendant to be proclaimed, required, or exacted, in
five county courts fuccefiively, to render himfelf; and, if he does,
then to take him, as in a capias : but if he does not appear,
and is returned quinto exaclus, he fhall then be outlawed by the
coroners of the county. Alfo by ftatutes 6 Hen. VIII. c. 4. an4
3 1 Eliz. c. 3. whether the defendant dwells within the fame or
.another county than that wherein ihcexige?7t is fued out, aw; /f

M m 2 cf

q Apjiead. N°. III. §. ». $ Bid.

r IbU.

284 P R I V A T E Book III.

ofproclamatkr} fhall iiTue out at the fame time with the exigent,
commanding the fherilf of the county, wherein the defendant
dwells jto make .three proclamations thereof in places the moil; no-
torious, and moll likely to come to his knowledge, a month be-
fore the outlawry fliall take place. Such outlaivry is putting a
man out of the proteclion of the law, fo that he is incapable to
bring any action for redrefs of injuries; and it is alfo attended
with a forfeiture of all one's goods and chattels to the king.
And therefore, till fome time after the conqueft, no man could
be outlawed but for felony ; but in Braclon's time, and fcme-
,what earlier, procefs of outlawry was ordained to lie in all ac-
tions for trefpalTes vi et armis'^. And llnce, by a variety of fta-
tutes(the fame which allow the writ of r^?/'/i7j before-mentioned)
procefs of outlawry doth lie in divers actions that are micrely
civil ; provided they be com.menced by original and not by bill.'*
Ifafter outlawry the defendant appears publicly, he may be arretted '
by 2i^'v\t oi capias utlagatinr^^ 2ind committ^d^till the outlav/ry
be reverfcd. Which reverfal may be had by the defendant's ap-
pearing perfonally in court (and in the king's bench without any
perfonal appearance, fo that he appears by attorney, according
toftatvite 4&5 W. & M. c. 18.) and any plauiible caufe, how-
ever flight, w ill in general be fufHcient to reverfe it, it being
confidered only as a procefs to compel an appearance. But then
the defendant muft pay full cofts, and put the plaintiff in the
fame condition, as if he had appeared before the writ oiexigi
facias was awarded.

Such is the iirfl procefs in the court of common fhas. In the
hin^s bench they may alfo (and fi'cquently do) proceed in certain
caufes, particularly in actions of ejectment 'and trefpafs, by ori^
ginal writ, with attachnient and capias thereon^' ; returnal)le, not
at Weflminfter, where the common pleas are now fixed in con-
fequence of magna carta^ but " uhicunque fiierimus in Anglia"

where-

t Appena. N". III. §. j. x Append. N«. HI. §. j.

u Co. Litt. ia8. y Ibid. N". II. §. i.

w I Sid. i5p,

Ch. 19. Wrongs. 285

vvherefoever the king fliall then be in England ; the king's bench
being removeable into any part of England at the plcalure and
dilcretion of the crown. But the more ufual method of pro-
ceeding therein is without any original, but by a peculiar fpecies
of procefs entitled a bill of Middle/ex y and therefore fo entitled,
becaufe the court now fits in that county ;. for if it fate in Kent,
it would then be a bill of Kent. For though, as the juftices of this
court have, by it's fundamental conRitution, power to determine
all offences and trefpailes, by the common law and cufiom of the
realm^j it needed no orimnal writ from the crown to g:ive it cos^-
nizagce of any mifdemelnor in the county wherein it relides;
yet as, by this court's coming into any county, it immediately
fuperfcded the ordinary adminiftration ofjuftice by the general
commiuions of eyre and of oyer and terminer''^ a procefs of it's
own became necefl'ary, within the county where it fate, to brin^j
in fuch perfons as were accufed of committing 2iHY fjrcible injury.
The bill of Middlefex"' is a kind Oi capias, directed to the flieriff
of that county, and commanding him to take the defendant, and
; ive him before our lord the king at Weftminfter on a day pre-
iixed, to anfwer to the plaintiiFof a plea of trefpafs. For this
' accufation of trefpafs it is, that gives the court of king's bench
jurifdiclion in other civil caufes, as was formerly obferved ; lince
hen once the defendant is taken into cuitody of the marihall
or prifon-keeper of this court, for the fuppofed trefpafs, he
being then a prifoner of this court, may here be profecuted for
any other fpecies of injury. Yet, in order to found* this jurif-
diction, it is notnecefiary that the defendant be adually the
marfliall's prifoner ; for, as foon as he appears, or puts in bail
to the procefs, he is deemed by fo doing to be in fuch cuftody
of the marihall, as will give the court a jurifdidion to proceeds
And, upon thefe accounts, in the bill or procefs a complaint of
trefpafs is always fuggefted, whatever elfe may be the real caufe
of adlion. T^iis bill of Middlefex rnufl be ferved on the defen-
dant by the flieriiT, if he finds him in that county : but, if he

returns

z Bro. Ahr. t. oyer <b- dctcnmner. 8- b Append. No. Ill, §. 3.

a bi:o. Abr. t.jurijdicfm. 66. 3 Infh 17, c 4 loll. 7a. '

286 Private Book III.

returns " nonefl inventus ^^ then there iflues out a writ oi latitat^ ^ '
to the fiierifF of another county, as Berks ; which is iimilar to
the tejiaitun capias in the common pleas, and recites the bill of
Middlefex and the proceedings thereon, and that it is teftified
that the defendant" latitat et difcurrit^^ lurks and wanders about
in Berks; and therefore commands the (herift to take him, and
have his body in court on the day of the return. But, as in the
common pleas the teftatiim capias may be fued out upon only a
fuppofed, and not an adual, preceding capias ; fo in the king's
bench a latitat is ufually fued out upon only a fuppofed, and not
an actual, bill of Middlefex, So that, in facl, a latitat m^y be "
called the firft procefs in the court of king's bench, as the tefta-
tiim capias is in the common picas. Yet, ^as in the common pleas,
if tJie defendant lives in the county wherein the aclion is laid, a
common capias fuffices ; fo in the king's bench likewife, if he
lives in Middlefex, the procefs mull ftill be by bill of Middlefex
only.

In the exchequer the firfl procefs is by writ of g-z^ro minus ^ in
order to give the court a jurifdiction over pleas between party
and party. In which writ^ the plaintiff is alleged to be the king's
farmer, or debtor, and that the defendant hath done him the in-
jury complained of, quo minus fufficiens exiftit^ by which he is
the lefs able, to pay the king his rent, or debt. And upon this
the defendant may be arrefted as upon a capias from the com-
mon picas*

Thus differently do the three courts fet out at firfl, in the
commenceme^itof afuit; for which the reafon is obvious : fince
by this means the two courts of king's bench and exchequer en-
title themfelves to hold plea in fubjecls caufes, which by the
original conflitution of Weflminfler-hall they were not em-
powered to do. Afterwards, when the caufe is once drawn into
the refpeclive courts, the method of purfuing it is "pretty much
the fame in all of them.

If

<L Apiend. N«. III. §• ^. c iVid. §. 4:.

Ch. 19. Wrongs. 287

I F the flieriff hiw found the defendant upon any of the for-
mer writs, the capjas, latitat &c, he was antiently obliged to
take ]iim into cuftody, in order to produce him in court upon
the return, however fmall and minute the caufe of aclion might
be. For, not having obeyed the original fummons, he had fliewn
a contempt of the court, and was no l-opger to be truftcd at
large. But when the fummons fell into difufe, and the capias
became in fact the firft procefs, it was thought hard to imprifon
a man for a contempt which was only fuppofed: and therefore
in common cafes by the gradual indulgence of the courts (at
length authorized by llatute 12 Geo. I. c. 29. which was amended
by ftatute5 Geo. II. c. 2 7. and made perpetual by ftatute 21 Geo. Hi
c. 3.) the fheriff or his officer can now only perfonally feive the
defendant with a copy of the writ or procefs, and with notice
in writing to appear by his attorney in court to defend this ac-
tion ; which in elled reduces it to a mere fummons. And if the
defendant thinks proper to appear upo-n this notice, his appear-
ance is recorded, and he puts in fureties for his future attendance
and obedience ; which fureties arc called common bail, being the
fame two imaginary pcrfons that were pledges for the plaintiff's
profecution, John Doe and Richard Roe. Or, if the defendant
does not appear upon the return of the writ, or within four(or,
in fome cafes, eight) days after, the plaintiff may enter an ap-
pearance for him, as if he had really appeared ; and may iiie
common bail in the defendant's name, and proceed' thereupon as
if the defendant had done it himfelf.

B u T if the plaintiff will make affida-oit, or affert upon oath,
that the caufc of action amounts to ten pounds or upwards, then
in order to arrcfl the defendant, and make him put in fubflantial
fureties for his appearance, called y^f'a'j/^^//, it is required by
flatute 13 Car. II. ft. 2. c. 2. that the true caufe of aftion fliould
be expreffed in the body of the writ or procefe. This ftatute
(without any fuch intention in the makers) ha.d like to have
puftcd the king's bench of all it's jmifdiclion over civil injuries

without

288 Private Book III;

without force : for, as the bill of Middlefex was framed only for
aclions of trefpafs, a defendant could not be arrefted and held to
bail thereupon for breaches of civil contracts. But to remedy
tfiis inconvenience, the officers of the king.'s bench devifed a me-
thod of adding what is called a claufe of ac et'iamto the ufual
complaint of trefpafs ; the bill of Middlefex commanding the de-
fendant to be brought in to anfwer the plaintiff of a plea of tref-
pafs, and alfo to a bill of debt*" : the complaint of trefpafs givinp-
cognizance to the court, and that of debt authorizing the arreft.
In return for v/hich, lord chief juftice North a few years after-
wards, in order to fave the fuitors of his court the trouble and ex-
penfeoffuing out fpecial originals, directed that in the common
j[)leas, befides the ufual complaint of breaking the plaintiff's clofe,
a clauie of ac et'iam might be aifo added to the writ of capias^
containing the true caufe of aclion ; as, " that the faid Charles
" the defendant may anfwer to the plaintiff of a 4plea of trefpafs
*' in breakiii^g his clofc: and alfo, ac etiam, may anlwer him, ac-
" cording to the cuftom of the court, in a certain plea of trefpafs
" upon the cafe, upon promifes, to the value of twenty pounds,
<c e^-^s." The fum fworn to by the plaintifi^ is marked upon "the
back of the writ; and the fheriff, or his officer the bailiff', is then
obliged actually to arreft or take into.cuftody the body of the de-
fendant, and, having fo done, to return the writ with a ' cep co}>
pus endorfed thqfeon.

A N arreji muft be by corporal felfmg or touching the defend-
ant's body; after which the bailiff may juftify breaking open
the houfe in which he is, to take him : otherwifc he has no fuch
power ; but milft watch his opportunity to aiTeil him. For every
man's houfe is looked upon by the law to be his caff le of defence
and afylum, wherein he iliould fulfer no violence. Which prin-.
ciple is carried fo far in the civil law, that For the moft part not
fo much as a common citation or fummons, m»uch lefs an arreft,
can be executed upon a man within his own walls''. Peers of

the

•

f Append. N°. LIT. §. 3. life of lord Giiilfcrd. 95,

g Lilly pra(ft. Reg. t, ac ctiam. North's h Ff. i. 4. U\ — ai.

Ch. 19. Wrongs. 289

the realm, members of parliament, and corporations, are privi-
lep-cd from arrefts ; and of courfe from outlawries'. And aijainft
them the procefs to inforce an appearance mufl be by fummons
and dillrefs infinite, infiiead of a capias^ Alfo clerks, attorneys,
and all other perfons attending the courts of juflice (for attor-
neys, being officers of the court, are always fuppofed ta be there
attending) arc not liable to bearrefted by the ordinary procefs of
the court, but muft be fued by /'/"//(called ufually a bill of privi-
lege) as being perfonally prefent in court'". Clergymen perform-
ing divine fervice, and not merely flaying in the church with a
fraudulent defign, are for the time privileged from arrefts, by
ftatute 50 Edw. III. c. 5. and i Ric. II. c. 16. as likewife mem-
bers of convocation adlually attending thereon, by ftatute 8 Hen. VI .
c. I. Suitors, vvitneiTes, and other perfons, neceflarily attend-
ing arty courts of record upon bufmefs, are not to be arrefted
during their actual attendance, which includes their neceflliry
coming and returning. And no arreft can be made in the king's
prefence, nor within the verge of his royal palace, nor in any
place where the king's jultices are actually fitting. The king
hath moreover a fpecial prerogative, (which indeed is very fel-
dom exerted ') that he may by his wrii of protedion privilege a
defendant from all perfonal, and many real, fuits for one year at
u time, and no longer; in refpect of his being engaged in his
fervice out of the realm "'. And the king alfo by the common
law might take his creditor into his protection, fo that no one
might fue or arreft him till the king's debt were paid'^ : but by the
ftatute 25 Edw. III. ft. 5. c. 19. notv/ithftanding fuch protection,
another creditor may proceed to judgment againft him, with a
Vol. III. N n ftay

i Whitelock of psrl. zo<i, 107. " jcft to other mens afi^ons ; left flie might

k ^ro. Abr. t. bille. z9. 11 MoJ. 163. *' bethought to delay jutlice." But king

1 Sir Edward Coke infosms us, (i Inft. William, ia i69i, granted one to lord Cuttj,

131.) that herein " l»e could fay n<vhing of to proccdl him from being outlavved Ly his

" his own experience ; fcr albeit queen Eli- tayloi : (3 Lev. 331.) which is the bft that

*« zabeth mairtaincd many wars, yet fiie appears up:>u our books.

«' granted few or no protedions ; and her m Fijich. L. 454. 3 Lev. 331.

" rcafon was, that he was no fit fubjeift to n F. N. 13, j3. Co.Litt. 131.

" be employed in bor fervice, that was fub- ,

290 Private Book IIL

ftay of execution, till the king's debt be paid ; nnlefs fiich cre-
ditor will undertake tor the king's debt, and then he fhall have
execution for both. And, laftly, by ftatute 29 Car. II. c. 7. no
arreft can be made, nor procefs ferved upon a funday, except for
treafon, felony, or breach of the peace.

When the defendant is regularly arrcfted, he muft either go
to prifon, for fafe cuftody ; or put in fpecia I half to the fhcriff.
For, the intent of the arrelt being only to compel an appearance
in court at the return of the writ, that purpofe is equally an-
fwered, whether the fherifi detains his perfon, or takes fufficient
fecurity for his appearance, called bail (from the French word,
bailler, to deliver) becaufe the defendant is bailed, or delivered,
to his fureties, upon their giving fecurity for his appearance ; and
is ftippofed to continue in their fi iendly cuftody in {lead of going
to gaol. The method of putting in bail to the fh^iff is by en-
tering into a bond or obligation, with one or more fureties (not
liclitlouo pcrfons, as in the former cafe of common bail, but real,
fubflantial, re^ponfible bondfmcn) to infure the defendant's ap-
pearance at the return of the writ ; which obligation is called
the ballbond°. The fherilF, if he pleafes, ?nay let the defend-
ant go without any fureties ; but that is at his own peril : for,
after once taking him, the fheriff is bound to keep him faftly,
fo as to be forthcoming in court ; otherwife an action lies againft
him for an efcape. But, on the other hand, he is obliged, by
ftatute 23 Hen. VI. c. 10. to take (if it be tendered) a lufficient
bailbond: and, by ftatute 12 Geo. I. c. 29. the fheriff fhall take
bail for no other fum than fuch as is fworn to by the plaintiff,
and endorfed on the back of the writ.

U p o i<r the return of the writ, or within four days after,
the defendant muft appear according to the exigency of the writr
This appearance is effecled by putting in and juftifying bail to
the adlon ; which is commonly called putting in bail above. If
this be not done, and the bail that were taken by the fheriff

below

o Append. N". III. §. j.

Ch. 19. Wrong s. 291

bchw -M'c rcfponfibk perfons, the plain tiff' mny takcan affign-
meat from the fheriff of the bail-hond (under the ftatutc 4 &
5 Ann. c. 16.) and bring an aclion thereupon agauift the Iheriff's
bail. But if the bail, fo accepted by the fheriff, be infolvent
perfons, the plaiiuifF may proceed againil the fheriff himfclf,
by calHng upon him, firif , to return the writ (if not already
done) and afterwards to bring in the body of the defendant.
And, if the flicriff does not then caufe fufficient bail to be put
in above, he will himfelf be refponfible to the plaintiff.

* The bail above, or bail to the aflion, muii be put in either
in open court, or before one of the judges thereof; or elfe, in
the country, before a commifiioner appointed for that purpofe by
virtue of the ftatutc 4 W. & M. c. 4. which muft be tranf-
rnitted to the court. Thefe bail, who muft at! eaft be two in
number, muft enter into a recoGrnizance'' in court or before the
judge or commiliioner, whereby they do jointly and fev^erally
undertake, that if the defendant be condemned in the adion
he ftiall pay the cofts and condemnation, or render himfelf a
prifoner, or that they will pay it for him : which recognizance
is tranfmitted to the court in a flip of parchment intitled a hail ,
f'lece'^. And if required, the bail muft j^ftify themfelves in
court, or before the commiliioner in the country, by- fwearing '
themfeb.'es houfe-keepers, and each of them to be worth double
the fum for which they are bail, after payment of all their debts. .
This anfwers in fome meafure to the Jlipulat'to or fat'ijdatlo of
the Pioman laws% which is mutually given by each litigant party
to the other : by the plaintiff, that he will profecute his fuit,
and pay the cofts if he iofes his caufe ; in like manner as onr
law ftill requires nominal pledges of profecution from the plain-
tiff: by the defendant, that he fliall continue in court, and
abide the fentence of the judge, much like our fpecial bail %
but with this difference, that the fidejiijjores were there abfo-
lutely bound jitdicatiimfohere, to fee the cofts and condemna-

N n 2 , tiom

p Append. N". III. §.5. ' r Inft. /. 4. ^ 11. Ff. I. ». /. 8^^

<i Ibid.

292 Private Book III.

tion paid at all events : whereas our fpecial bail may be dlfchar-
ged, by furrendering the defendant into cuftody, within the time
allowed by law; for which purpofe they are at all times intitied
to a warrant to apprehend him".

Special bail is required (as ofcourfe) only upon actions of
debt, or actions on the cafe in trover or for money due, where the
plaintiff can fwear that the caufe of action amounts to ten pounds:
but in actions where the damages are precarious, being to be aifeffed
ad libitum by a jury, as in actions for word5,ejectment5 or trefpafs,
it is very feldom pofiible for a plaintiff to fwear to the amount of
his caufe of action; and therefore no fpecial bail is taken thereon,
unlefs by a judge's order or the particular directions of the court,
in fome peculiar fpecies of injuries,as in cafes of mayhem or atro-
cious battery; or upon fuch fpecial circumftances, as make it ab-
folutely neceffary that the defendant fhould be kept within the
reach of juftice. Alfo in actions againft heirs, executors, and ad-
miniftrators, for debts of the deceafed, fpecial bail is not de-
mandable : for the action is not fo properly againft them in per-
fon, as againft the effects of the deceafed in their poffeftion. But
fpecial bail is required even of them, inactions for a devajlavit,
or wafting the goods of the deceafed ; that wrong being of their
own committing.

Thus much iov procefs ; which is onJy meant to bring the
dcfendent into court; in order toconteft thefuit, and abide the de-
termination of the law. When he appears either in perfon as a
prifoner, or out upon bail, then follow the pleadings between th^
parties, which we fhall confider at large in the next, chapter.

s 2. Show. xoj. 6 Mod. 231,

Ch. 20. Wrongs.

293

Chapter the twentieth.
Of pleading.

PLEADINGS are the mutual altercations between the
plaintifF and defendant ; which at prcfent are fet down
and delivered into the proper office in writing, though formerly
they were ufually put in by their counfel ore tenus or viva voce^
in court, and then minuted down by the chief clerks, orpro-
thonotaries ; whence in our old law French tire pleadings are ^ #
frequently denominated the parol. Janf&U^

The firft of thefe is the declaration^ narratio or county an- »

tiently called the tale^ ; in which the plaintiff fets forth his caufe JoJji'^
of complaint at length: being indeed only an amplification or
expofition of the original writ upon which his action is founded,
with the additional circumftances of time and place, when and
where the injury was committed. But we may remember'' that,
in the king's bench, when the defendant is brought into court
by bijlof Middlefex, upon a fuppofed trefpafs, in order to give
the court a jurifdiclion, the plaintifF may declare in whatever
action, or charge him with whatever injury, he thinks proper ;
unlefs he has held him to bail by a fpecial ac etiam, which the
plaintifF is then bound to purfue. And fo alfo, in order to have
the benefit of a capias to fecure the defendant's perfon, it was
the antient practice and is therefore flill warrantable in the com-
mon

a Append. N«. II. §. ». Nf . III. §. tf. b Sec pag. 4^5. a8&.

2c;4 Private: Book III.

mon pleas, to foe out a writ of trefpafs quare claufam f regit, for
breaking the plaintiff's clofe; and when the defendant is once
brought in upon this writ, the plaintiff declares in whatever ac-
tion the nature of his aflual injury may require ; as an action of
covenant, or on the cafe for breach ofcontraft, or other lefs
forcible tranfgreffion^: unlefs, by holding the defendant to bail on
a fpecial acetiam, he has bound himfelf to declare accordingly.

c/iH dJ^ I N ^^'^^^ a6lions, where poffcffion of land is to be recovered,
or damages for an adual trefpafs, or for wafte, &c, affecting
land, the plaintiff muft lay his declaxation or declare his injury
to have happened in the very couniy and place that it really did

Jr^^i^^wrM.bappen; hut mtratifit or yiCiiou^^ for injuries that might have
happened any where, as debt, detinue, llander, and the like, the
plaintiff may declare in whui county he pieafes, and then the trial
muft be in that county in which the declaration is laid. Though
if the defendant will make affidavit, that the caufe of adion, if
any, arofe not in that but in another county, the court will di-
rect a change of the vemte, or vifne, (that is, the vicinia or
neighbourhood in v.hich the injury is declared to be done) and
will oblige the plaintiff to declare in the proper county. For the
ftatuted Ric. II. c. 2. having ordered ^// writs to be laid in their
proper counties, this, as the judges conceived, impowered them
to change the venue, if required, and not to iniift rigidly on
abating the writ : which practice began in the reign of James
the firff. And this power is difcretionally exelt:ifed, fo as not
to caufe but prevent a defect of juitice. Therefore the court will
not change the venue to any of the four northern counties, pre-
vious to the fpring circuit : bccaufe there the ailifes are holden
only once a year^ at the time of the fummcr circuit. And it will
fometimes remove the venue from the proper jurifditlion, (ef-
pecially of the narrow and limited kind) upon a fuggcftion,
duly fupported, that a fair and impartial trial cannot be had

therein*".

It

c 1 Ventr. iss)' ^ Stra. ^74. — Mylock v. SeMuc. Trhh

d i Salk. Cjo. f^GiO.llL B. R.

Tenutl

Ch. 20, Wrong s,

29s

I T is generally ufual in adions upon the cafe to let forth fe- l.

veral cafes, by different counts in the Came declaration ; fo that Cff^^^^*
if the plaintiff fails in the proof of one, he may fucceed in an-
other. As, in an aclion on the cafe upon an ajjiimpfit for goods CtM'^'*^^*^,
fold and delivered, the plaintiff ufually counts or declares, iirft/' ' '*''
upon a fettled and agreed price between him and die defendant ;
as that they bargained for twenty pounds : and left he fhould
fail in the proof of this, he counts likewife upon a quantum va'%i»^*itJ^,
lehant ; that the defendant bought other goods, and agreed to
pay him fo much as they were reafonably worth ; and thert avers
that they were worth other twenty pounds: and fo on in three
or four different fliapes ; and at laft concludes with declaring, that
the defendant had refufed to fulfil any of fehefe agreements,
whereby he is endamaged to fuch a value. And if he proves the
cafe laid in any one of his counts, though he fails in the reft,
he fhall recover proportionable damages. This declaration always ^ ^^
concludes with thefe words, " and thereupon he brings yz«V, &ci •JutU
" inde producit feclam, &c.'* By which word, fuit or feda, (a
fequendo) were antientiy underftood the witneffes or followers of
the plaintiff^ For in former times the law would not put the
defendant to the trouble of anfwering the charge, till the plaintiff
had made out atleaft a probable cafe^. But the actual produc-
tion of the Jidt, ihe/ecla, or foUotvers, is now antiquated •, and JctHj,
hath been totally difufed, at leaft ever iince the reign of Edward « ♦'^4

the third, though the form of itftill continues.

A T the end of the declaration are added alfo the plaintiff's
common pledges of profecution, John Doe and Ridiard Roe,V£Wa</.
which, as we before obferved'', are now mere names of form; /
though formerly they were of ufe to anfw^r to the king for the
amercement of the plaintiff, in cafe he. were nonfuited, barred
of his aftion, or had a verdict and judgment againft him*. For,
if the plaintiff neglects to deliver a declaration for two terms af-
ter

f Scl<l on Fortefc. c, ii. h See pag. 175.

g Braft. 400. Flet. /. s. c.C, 13 Buiftr. 17J. 4 Inft, 18^,

2^6 Private BookIIL

ter the defendant appears, or is guilty of other delays or defaults
againft the rules of law in any fubfequent ftage of the action, he
is adjudged not to follow or purfue his remedy as he ought to doj
jVonJuiJb ^"'l thereupon a jwnfiut^ or non profeqiiitKr, is entered; and he is
. / ^^'^^ t» be m7iprof.^d. And for thus deferting his complaint, after
^ jl(^\jvvvif %ffjj^ing a falfe claim or complaint (profaljo damorefuo) he fhall
I not only pay cofts to the defendant, but is liable to be amerced'

' Jlttfatlt to the king. A retraxit differs from a nonfuit, in that the one
i ' is negative, and the other pofitive : the nonfuit is a default and

negle6t of the plaintiff, and therefore he is allowed to begin his
fult again, upon payment of cofls; but 2. retraxit is an open and.
^c voluntary renunciation of his fait, in court, and by this he for

'd^Uiow.tinAKe^^'^^'^ lofcs his actiorp, A dij- continuance is fomewhat fimilar to a
nonfuit : for when a plaintiff leaves a chafm in the proceedings
of his caufe, as by not continuing the procefs regularly from day
to day, and time to time, as he ought to do, the fuit is difcon-
» tinned, and the defendant is no longer bound to attend ; but the
'''^■''-. plaintiff mufl begin again, by fuing out a new original, ufually
paying cofls to his antagonifl:. Antiently, by the demife of the
king, all fuits depending in his courts were at once difcontinued,
and the plaintiff was obliged to renew the procefs, by fuing out
a frefli writ from the fucceffor; the virtue of the former writ
being totally gone, and the (defendant no longer bound to attend
y in confequence thereof : but, to prevent the expenfe as well as

l,Cl.i^C,). delay attending this rule of law, the ftatute i Edw. VI. c. 7.
enacts, that by the death of the king no adion fhall be difcon-
tinued ; but all proceedings lliall fland good as if the fame king
had been living.

When the plaintiff hath ftated his cafe in the declaration, it
is incumbent on the defendant within a reafonable time to make
dU^^iir, his defence and to put in a flea-y or elfe the plaintiff will at once
juLii Mclk recover judgment by default, or ?uhildicit of the defendant.

bO ej^*t^ D E F E N c E, in it-s true legal fenfe, fignifies not a juftification,

/ ' protection, or guard, which is now it*s popular lignification ; but

merely

Ch. 20.

Wrongs.

97

merely an oppofing or denial (from the French verb defender) of the
truth or vaUdity of the complaint. It is the contcjlatio litis of the
civilians: a general afTertion that the plaintiff hath no ground of
aclion, which aflertion is afterwards extended and maintained in
his plea. For it would be ridiculous to fuppofe that the defend-
ant comes and defends (or, in the vulgar acceptation, juitirits) che
force and injury, in one line, and pleads that he is not guilty of the
trefpafs complained of, in the next. And therefore in actions of
dower, where the demandant does not count of any injury done,
but merely demands her endowment", and in aHifes of land,
where alfo there is no injury alleged, but mxcrely a queftion of
right Hated for the determination of the recognitors or jury, the
tenant makes no fuch defence'. In writs of entry!", wherenoinjury
is frated in the count, but merely the right of the demandant and
the defective title of the tenant, the tenant comes and defends
or denies his right jus fuiwi, that is (as I underftand it, though
with a fmall grammatical inaccuracy) the right of the demandant,
the only one exprefsly mentioned in the pleadings : or dCe denies
his own right to be fuch, as is fuggefted by the count of the de-
mandant. And in writs of right" the tenant always comes and
defends the right of the demandant and his ici^m^ jus praedifti S.
et feifinam ipfius°^ (or elfe the feiiin of his anceftor, upon which
he counts as the cafe may be) and the demandant may reply, that
the tenant unjuftly defends his, the demandant's right, and the
feifm on which he counts". AH which is extremely clear^ if we
underiland by defence an oppoftion or denial, but is otherwife in-
explicably difficult^.

The courts were formerly very nice and curious with refpccl

to the nature of the defence, fo that if no defence was made,

though a fuiHcient plea was pleaded, the plaintiff fhould recover

Vol. III. O o ]^^Z'

k R^ftal. entr. 234.
1 Booth of real aftions. iiG,
m. Vol. II. append. N". V. §. j.
n Append. N°. I. §. S-

o Co. Entr. i8i.
p Nov. Narr. 230, edit. 1S3.1..
4 The true reafon of this, fays Eooth, (on
real anions. 5)4.. in ) I could aevei yet find.

2p8 Private Book III.

judgment'^: and therefore the book, entitled novae narrationes or
the new talys\ at the end of almofl every count, narratio, or tale,
fubjoins fuch defence as is proper for the defendant to make. For
a general defence or denial was not prudent in every fituation,fince
thereby the propriety of the writ, the competency of the plaintiff,
and the cognizance of the court, were allowed. By defending the
force and injury the defendant waved all pleas of mifnofmer*^;
by defending the damages, all exceptions to the perfon of the
• plaintiff; and by defending either one or the other u'/'f/z and
where it fliould behove him, he acknowleged the jurifdic'bion
of the court ". But of late years thefe niceties have been very
defervedly difcountenanced"'; though they ftill feem to be law,
if infilled on''.

00gM > '• After defence made, the defendant mud put in his plea.

4 lA/ni/^^^^ before he pleads, he is intitled to demand one imparlance^ ^
Jtnjl^ ' or Ucentta loquendi, and may have more granted by confent of the
plaintiff; to fee if he can end the matter amicably without far-
ther fuit, by talking with the plaintiff: a practice, which is ^
fuppofed to have arifen from a principle of religion, in obedience
to that precept ofthegofpel, " agree with thineadverfary quickly
f " whilil thou art in the way with him \" And it may be obferved
that this gofpel precept has a plain reference to the Roman law of
the twelve tables, which exprefsly diredfed the plaintiff and de-
fendant to make up the matter, while they were in the way, or
going to the praetor ; — in via, rem iiti pacunt orate. There are
alfo many other previous llcps which may be taken by a defendant
YtMO. before he puts in his plea. He may, in real actions, demand a view

of

r Co. Litt. IJ7. dcvera, il acctpte In polar t!e conrte de comtjlre

s edit. 1534. ■ oil trier lour pie. (Mod. tcncnd. car. 408. edit.

t Thfeloil. dig. /. 14. c. i.'png. 357. I534-) See aifo Co. Litt- la;.

II En la defence font iij cbofes enteiidaiitz : w Salk. 117. Lord Raym. z8z.

fertnnt ijuil defende tort et force, home doyt x Cardi. 130. Lord Raym. 117.

■entendre qutlfc excufe de tort a luy funnys per y Append. N". III. §. 6.

eountCfCtfaitfepartie al pie ; et per tant qiiil z Gilb. Hift. Com. Pi. 35.

defende les damages, ilaffirmele partie able dejire 3. Matth, v. 25.

refpondu ; et per tant ^utl defeitde en et quant il

Ji(k

imAaf,

Ch. 20. * Wrongs. 299

of the thingin qucflion, in order to afcertain it's identity and
other circumftances. He may crave ^y^r'' of the writ, or of the ^^^
bond, or other fpecialty upon which the a6lion is brought; that
is to bear it read to him ; the generahty of defendants in the times
of antientfimphcity being fuppofed incapable to read it them-
felves: whereupon. the whole is entered verbatim upon the record,
and the defendant may take advantage of any condition or other
part of it, not ftated in the plaintitf's declaration. In real actions
alfo the tenant may pray in aid. or call for afiiilance of another,
to help him to plead, becaufe of the fceblencfs and imbecillity of
his own cflate. Thus a tenant for life may pray in aid of him
that hath the inheritance in remainder or reveriion ; and an in-
cumbent may pray in aid of the patron and ordinary : that is,
that they fiiall be joined in the action and help to defend the
title. F(5«f/j^r alfo is the calling in of fome perfon to anfwer the
action, that hath warranted the title to the tenant or defendant.
This we ftill make ufe of in the form of common recoveries",
which are grounded on a writ of entry ; a fpecies of action that
we may remember relies chiefly on the v^^eaknefs of the tenant's
title, who therefore vouches another perfon to warrant it. If the
vouchee appears, he is made defendant inftead of the vouchor :
but, if he afterwards makes default, recovery (hall be had againfl
the original defendant; and he fhall recover over an equivalent in
value, againfl the deficient vouchee. In aiiifes indeed, where the
principal queftion is whether the demandant or his anceftors were
or were not in pofleffion till the oufter happened, and the title of
the tenant is little (if at ail) difcuffed, there no voucher is allowed ;
but the tenant may bring a writ oi warrantia chartae againfl the
warrantor, to compel him to aflift him with a good plea or de-
fence, or elfe to render damages and the value of the land, if
recovered againll the tenant''. In many real actions alfo^, brought
by or againll an infant under the age of twenty one years, and
alfo in actions of debt brought againfl him, as heir to any de-
ccafed anceflor, either party may fuggefl the nonage of the in-

O 0 2 fant,

b Append. N". III..'§. 6. d F. N. B. 135.

c Vol. II, append. N". V. §. x. c Dyer. 137.

II ■ ■

goo Private Book III.

fant, and pray that the proceedings may be deferred till his full
ij age, or in our legal phrafe that the infant may have his age, and

(/k^gi Tntui thzt che parol may de?nur, tha.t is, that the pleadings may be ftaid ;

(Urrvu^, and then they ihall not proceed till his full age, unlefs it be ap-
parent that he cannot be prejudiced thereby^ But, by the fta-
tutesof Weftm. i. 3 Edw. I. c. 46. and of Glocefter 6 Edw. I.
c. 2. in writs of entry fur dijjeifin in fome particular cafes, and
in anions aunceftrel brought by an infant, the parol fhall not de-
mur: otherwife he might be deforced of his whole property,
and even want a maintenance, till he came of age. So likewife
in a writ of dower the heir fhall not iiave his asre; for it is
necelTary that the widow's claim be immediately determined, elfe
file may want a prefent fubfiftence^ Nor fhall an infant patron
have it; in a quare hnpedk^^ iince the law holds it neceflary
and expedient, that the church be immediately filled. It is in
thisfia^e alfo ofthecaufe, if at all, that coonizance of the fuit
muft be claimed or demanded ; when any perfon or body corpo-
rate hath the franchife, not only of /6(j/d///?g'^/^<2j- vfithin a parti-
cular limited jurifdiclion, but alfo of the cognizance of pleas :
and that, either without any words exclufive of other courts,
v/hich entitles the lojrd of the franchife, whenever any fuit that-
belongs to his jurifdiclion is commenced in the courts at Weil-
minfter, to demand the cognizance thereof; or with iuch exclu-
five words, which alfo entitle the defendant to plead to the ju-
I'ifdiclion of the court'. Upon this claim of cognizance, if al-
lowed, all proceedings fhall ceafe in the fuperior court, and the
plaintiff is left at liberty to purfue his remedy in the fpecial ju-
rifdi(5lion. As, when a fcholar or other privileged perfon of the
univerfities of Oxford or Cambridge is impleaded in the courts
at Weftminfter, for any caufe of aclion whatfoever, unlefs upon
a quelHon of freehold''. In thefe cafes, by the charter of thofe
learned bodies, confirmed by acb of parliament, the chancellor
or vice-chancellor may put in a claim of cognizance ; which,

if

f Fiiif L. 360. i 1 Lord Raym. 836. 10 Mod. ii6.

g I Poll. Alir. 137. k Scei\i£. S3,

iijii^. 138.

Ch. 20.

Wrongs.

301

if made in due time and form, and with due proof of the fact*
alleged, is regularly allowed by the courts'. It mufl be demand-
ed before any imparlance,for that is a fubmiflion tothcjurifdiclion ..j.
of the fuperior court: and it will not be allowed if it occafions
a failure of juftice", or if an action be brought againft the
perfon himfelf who claims the franchife, unlcfs he hath alfo a
power in fuch cafe of making another judge".

When thefe proceedings are over, the defendant mufl then
put in his excufe or plea. Pleas are of two forts ; dilatory pleas (^''^^**jf
and pleas to the attion. Dilatory pleas are fuch as tend merely to to-^kt a-t^*^^
delay or put of! the fuit, by queftioning the propriety of the re-
medy, rather than by denying the injury : pleas to the action are
fuch as difputc the very caufe of fuit. The former cannot be
pleaded after a general imparlance, which is an acknowlegement
of the propriety of the adion.

[.Dilatory pleas are, i . To the jurifdlfl'ion of the court : ^*
alleging, that it ought not to hold plea of this injury, it arifmg
in Wales or beyond fea; or becaufe the land in queflion is of
antient demefne, and ought only to be dem.anded in the lord's*
court, &c, 2. To the difabiUty of the plaintiff, by reafon whereof /&c^<*^^
he is incapable to commence or continue the fuit ; as, that he
is an alien enemy, outlawed, excommunicated, attainted oftrea-
fon or felony, under a praemunire^ not in rerum natura (being
only a fictitious perfon) an infant, a feme-covert, or a monk
profefTed. 3. In abatement: which abacement is eithdr of the

writ

/-

A-

1 Har^^ir. s«5-

m X Ventr. 3<53.

n Hob. 87. Yearbook, M. 8 Hen. VI.'io.
In this latter cafe the chancellor of Oxford
claimed cognisance of an ad ion of trrfpafs
brought againft himfelf; which was di fal-
lowed, becaufe he fliould not be judge in his
own caufe. The argument ufed by ferjeant
Rolfe, on behalf of the cognizance, is cu-
rious and worth tranfcribing, — Jeovous dirai

vn fable. En afctin temps fuit tin fnpe, ct

avoit fait tin grand offence, et le cardinals via-

drent a lay et difoyent a luy, " pecca'ii :" et il

ait, " judica nie :" et Us difoyent, " non pof-

^' fumus , quia caput es ecclefiae ; judica teip-

" fu>n :" et rapoJloF dit, " judico me crema-

•' ri;" et fuit comhujius ; et apres fuit ««

fainci. Et in ceo cas il fuit fon juge demene,

ct ifflnt neft pcis inconvenient que un home foil

juge demene.

302 Private Book III.

writ, or the count, for fome defect in one of them ; as by mif-
naming the defendant, which is called a mifnofmer ; givin^r him
a wrong addition, as efqulre inftead o^ knight ; or other want of
form in any material refpecl. Or, it may be, that the plaintiff
is dead; for the deathof either party is at once an abatement of
the fuit. And in adions merely perfonal, ariiing ex deMo, for
wrongs actually done or committed by the defendant, as tref-
pafs, battery, and flander, the rule is that aBio perfonalis moritur
cum perfona°', and it never fliall be revived either by or ao-ainft
the executors or other reprefentatives. For neither th£ execu-
tors of the plaintiff have received, nor thofe of the defendant
have committed, in their own perfonal capacity, any manner of
wrong or injury. But in adions arifmg ex contradu, by breach
of promife and the like, where the right defcends to the repre-
fentatives of the plaintiff, and thofe of the defendant have affets
to anfwer the demand, though the fuits fliall abate by the death
of the parties, yet they may be revived againft or by the execu-
tors'': being indeed rather actions againft the property than the
perfon, in which the executors have now the fame intereft that
their teftator had before.

These pleas to thejurifdiv5lion, to the difability, or in abate-
ment, were formerly very often ufed as mere dilatory pleas, with-
out any foundation of truth, and calculated only for delay ; but
now byftatute4 &5 Ann.c, i6. no dilatory plea is to be admit-
ted, without affidavit made of the truth thereof, or fome proba-
ble matter fliewn to the court to induce them to beheve it true.
And with refped: to the pleas themfelves, it is a rule, that no
exception fliall be admitted againft a declaration or writ, unlefs
the defendant will in the fame plea give the plaintiff a better''-
that is, fliew him how it might be amended, that there may not
be two objections upon the fame account.

All

o 4 Tnft. 315. \ Brownl, 139,

p Mar. 14.

Ch. 20. Wrongs. 303

All picas to the jurifdidion conclude to the cognizance of
the court ; praying " judgment, whether the court will have far-
^- ther cognizance of the fuit:" pleas to the difability conclude
to the pcrfon; by praying " judgment, if the faid A the plain-
*' tifl'ought to beanfwered:" and pleas in abatement (when the
fuit is by original) conclude to the writ or declaration ; by pray-
ing "judgment of the writ, or declaration, and that the fame
" may be quaflied," cajfetur, made void, or abated : but, if the
action be by bill, the plea muft pray " judgment of the bill/'
and not of the declaration ; the bill being here the original, and
the declaration only a copy of the bill.

W H F N thefe dilatory pleas are allowed, the caufe is either
difmifTed from that jurifdidion ; or the plaintiff is flayed till his
difability be removed ; or he is obliged to fue out a new writ, by
leave obtained from the court', or to amend and new frame his
declaration. But when on the other hand they are overruled as
frivolous, the defendant has judgment of re/pondeat oujler, or
to anfwer over in fome better manner. It is then incumbent on

ita to plead

^

2. A V -L E k to the aSl'ion-, that is, to anfwer to the merits of
the complaint. This is done by confefling or denying it.

A CONFESSION of the whole complaint is not very ufual, for
then the defendant would probably end the matter fooner ; or
not plead at all, but fuffer judgment to go by default. Yet fome-
times, after tender and refufal of a debt, if the creditor haraffes
his debtor with an adion, it then becomes necefTary for the de-
fendant to ackriowlege the debt, and plead the tender ; adding
that he has always been ready, tout temps prift, and ftill is ready,
uncore prijl, to difcharge it: for a tender by the debtor and re-
fufal by the creditor will in all cafes difcharge the colls*, but not
the debt itfelf j though in fome particular cafes the creditor will

totally

T Co. EHtr. J7r, s i Vent. »x.

304 Private Book HI,

totally lofe his money ^ But frequently the defendant confefTes
one part of the complaint (by a cognovit aBionem in refpecl
thereof) and traverfes or denies the reft: in order to avoid the
expenfe of carrying that part to a formal trial, which he has no
ground to litigate. A fpecies of this fort of confefiion is the
fayment of money into court : which is for the moft part necefTary
upon pleading a tender, and is itfelf a kind of tender to the
plaintiff; by paying into the hands of the proper oflicer of the
court as much as the defendant acknowleges to be due, together
V: with the cofts hitherto incurred, in order to prevent the expenfe

of any farther proceedings. This may be done upon what is cal-
led a motion-, which is an occaiional application to the court by
the parties or their counfel, in order to obtain fome rule or order
of court, which becomes necellary in the progrefs of a caufe ;
.yWid^: and itisufually grounded upon tlu affidavit, (the perfcd tenfe of
-^ the verb affido) being a voluntary oath before fome judg^e or

ofHcer of the court, to evince the truth of certain facts, upon
which the motion is grounded: though no fuch affidavit is ne-
ceflary for payment of money into court. If, after the money
paid in, the plaintiff proceeds in his fuit, it is at his own peril : for,
if he does not prove more due than is fo paid into court, he fhall
be nonfuited and pay the defendant cofts ; but he fhall ftill have
the money fo paid in, for that the defendant has acknowleged to
be his due. In the French law the rule of practice is grounded
upon principles fomewhat fimilar to this; for there, if a perfon
be fued for riiore than he owes, yet he lofes his caufe if he does
not tender fo much as he really does owe ''. To this head may
alfo be referred the practice of what is called a y^-/-^: whereby
the defendant acknowleges the juftice of the plaintiff's demand
on the one hand; but, on the other, fets up a demand of his
own, to counterballance that of the plaintiff, either in the whole
or in part : as, if the plaintiff fues for ten pounds due on a note
of hand, the defendant may fet off nine pounds due to himfelf
for merchandize fold to the plaintiff, and, in cafe he pleads fuch
fet-off, muft pay the remaining ballance into court. This an-

fwers

t J-itt. §. 338. Co. Litt, aop. V Sp. L. b. tf. c. 4,

Ch. 20. Wrongs. 305

fwers very nearly to the coinpenfatio^ ot J} op page, of the civil law % \^!a^O'-f-
and depends on the ftatutes 2 Geo. II. c. 22. and 8 Geo. 11. ' ^
c. 24. which enacl, that, where there are mutual debts between
the plaintiff and defendant, one debt may be fet againll the o-
ther, and either pleaded in bar, or given in evidence upon the
general iffue at the trial ; v/hich fhall operate as payment, and
extinguifli fo much of the plaintiff's demand.

Plea s, that totally deny the caufe of complaint are either
the genera! ifliie, or ifpecial plea, in bar. »

I. The general iffue, or general plea, is what traverfcs,C^^^**42^
thwarts, and denies at once the whole declaration ; without of-
fering any fpecial matter whereby to evade it. As in trefpafs
either vi etarmis, or on the cafe, non culpabilis, not guilty";
in debt upon contradl, nil debit, he owes nothing; in debt on
bond, non efl fadum, it is not his deed ; on an ajfirnipfd, non af-
futnpftt, he made no fuch promife. Or in real actions, tiul tort, tpo-
no wrong done; nul diffeijtn, no diifeifin ; and in a writ of right, J// '
the mife or iffue, is, that the tenant has more right to hold than the r-^tka^
demandant has to demand. Thefe pleas are called the general ilTuej^Af^-^ f* ^
becaufe, by importing an abfolute and general denial of what Js'^^^tv^*,^
alleged in the declaration, they amount at once to an iffue ; by p ^

which we mean a fact afHrmedon one fide and denied on the other.

Formerly the general iffue was feldom pleaded, except
when the party meant wholly to deny the charge alleged agai/rd
him. But when he meant to diflinguifh away or palliate the
charge, it was always ufual to fet forth the particular facls in
what is called a fpecial plea ; which was originally intended to /fuK>c<KtrMm.
apprize the court and the adverfe party of the nature and cir-
cumftances of the defence, and to keep the law and the facl di-
{lin<5i:. And it is an invariable rule, that every defence, which
cannot be thus fpecially pleaded, may be given in evidence, upon
the general iffue at the trial. But, the fcience of fpecial plead-
Vol. 111. P p ing

V Ff. i5. a. I. 11 Appendix, N°. II. $. 4*

306 Private Book III.

ing having been frequently perverted to the purpofesof chicane
and delay, the courts have of late in fome inftances, and the le-
giilature in many more, permitted the general iffue to be pleaded,
which leaves every thing open, the facb, the law, and the e-
quity of the cafe; and have allowed Ipecial matter to be given
in evidence at the trial. And, though it fhould feem as if much
confufion and uncertainty would follow from fo great a relaxa-
tion of the RricLnefs antiently cbferved, yet experience has fhcwn
it to be otherwife; eipecially with the aid of a new trial, in cafe
either party be unfairly furprized by the other.

yx.hcc^ 2. Special pleas, hi bar of the plaintifi"'s demand, are
very various, according to the circumftances of the defendant's
cafe. As, in real actions a general releafe or a fine, both of which
may deftroy and bar the plaintiff's title. Or, in perfonal actions
an accord, arbitration, conditions performed, nonage of the de-
fendant, or fome other fad which precludes the plaintifl from
^tx^i^-^'-'^^is action". A juflification is likewife a fpecial plea in bar; as
' ' in actions of affault and battery, yc72 ajfault demefne^ that it was

the plaintiff's own original affault ; in trefpafs, that the defend-
ant did the thing complained of in right of fome office which
warranted him fo to do ; or in an action of ilander, that the
plaintiff is really as bad a man as the defendant faid he was.

A L s o a man may plead the flatutes of limitation'^ in bar ; or

the time limited by certain acts of parliament, beyond Vv'hich

no plaintiff can lay his caufe of action. This, by the ftatute of

Z,^ 32 Hen. VIII. c. 2. in a writ of right h fixty years: in affifes,

writs of entry, or other poffeifory actions real, of the fcifin of

one's anceltors, in lands; and either of their feifin, or one's own,

S^c in rents, fuits, and icvwicts -y ffty years: and in actions real for

lands grounded upon one's own feifm or pofTcflion, fuch poffef-

^Q fion muft have been within thirty years. By ftatute i. Mar. ft. 2.

c. 5. this limitation does not extend to any fuit for advowfons,

, upon

w Append. N". III. §. 6. x See pag. i88.

Ch. 20. Wrongs. 307

upon rcafons given in a former chapter^. But by the ftatute
21 Jac. I. c. 2.a time of limitation was extended to the cafe of
the king; viz. fixty years precedent to 19 Feb. 1623^: but, ipo
this becoming ineffectual by efflux of time, the lame dace of li-
mitation was fixed by ftatutc 9 Geo. III. c. 16. to commence and
be reckoned backwards, from the time of bringing any fuit or
other procefs, to recover the thing in queftion ; fo that a poffef-
fion for 7/.Y/)' years is now a bar even againft the prerogative, in
derogation of the antient maxim" nullum tempiis occurrh rcgiy
By another ilatute, 21 Jac. I.e. 1 6. /w^-??/^ years is the time of '20
limitation in any writ of formedon : and, by a confequence,
Huenty jQ^YS is alfo the limitation in every action of ejectment ;
for no ejectment can be brought, unlels where the lefibr of the
plaintiff is entitled to enter on the lands% and by the flatutc
2 1 Jac. I. c. 16. no entry can be made by any man, unlefs within
twenty years after his right Ihall accrue. As to all perfonal ac-
tions, they areUmited by theftatute lall mentioned to 7z,v years -0
after the caufe of aciion commenced: except in fome peculiar
cafes therein fpecified ; and except alfo actions of affault, batte-
ry, mayhem, and imprifonment, which muft be brought within
four years, and actions for words, which raufl be brought within <^
two years, after the injury committed. And by the ftatute 9.
31 Eliz.c. 5. all fuits, indictments, and informations, upon any
penal ftatutes, where any forfeiture is to the crown, Ihall be fued
within two years, and where the forfeiture is to a fubjecl, within
c«^ year, after the offence committed ; unlefs where any other cn^'^c^
time is fpecially limited by the ftatute. Laflly, by ftatute
10 W. III. c. 14. no writ oi qvyqv, fcire facias, or other fuit,
Ihall be brought to reverfe any judgment, fine, or recovery, for
error, unlefs it be profecnted within twenty years. The ufe of
thefe flatutes of limitation is to preferve the peace of the king-
dom, and to prevent thofe innumerable perjuries which might
enfue, if a man were allowed to bring an action for any injury
committed at anv diflance of time. Upon both thefe accounts

P p 2 the

ySeepag. ICO. a Sec pag. io6^

z- 3 lurt. i^ii.

308 Private Book III. '

the law therefore holds, that " inferejl reipuhVicae ut fit finis li-
^^ tium ;" and upon the fame principle the Athenian laws in ge-
neral prohibited all adions, where the injury was committed _/?x'^
years before the complaint was made^. If therefore in any fuit,
the injury, or caufe of aclion, happened earlier than the period
exprefsly limited by law, the defendant may plead the ftatutes of
limitations in bar : as upon an alfiaupfit, or promife to pay mo-
ney to the plaintiff, the defendant may plead non ajfumpftt infra
fex annos ; he made no fuch promife within fix years j which is
an effeclual bar to the complaint.

A N ejloppel is likewife a fpecial plea in bar : which happens
where a man hath done fome a6l, or executed fome deed, which
eftops or precludes him from averring any thing to the contrary.
As if tenant for years (who hath no freehold) levies a fine to an-
other perfon. Though this is void as to ftrangers, yet it fhall work
as an eftoppel to the cogaizor ; for, if he afterwards brings an
action to recover thefe 1 mds, and his fine is pleaded againft him,
he fliall thereby be eftopped from faying, that he had no free-
told at the time, and therefore was incapable of levying it.

The conditions and qualities of a plea (which, as well as

the doftrine of eftoppels, will alfo hold equally, tnutatis jnutan-

dis, with regard to other parts of pleading) are, i. That it be

fmgle and containing only one matter; for duplicity begets con-

fufion. But by ftatute 4 & 5 Ann. c. 16. a man with leave of the

court may plead two or more difliind matters or fingle pleas j as

in an adion of affault and battery, thefe three, not guilty, fon

m affault demefne^ and the ftatute of limitations,' 2. That it be di-

^ re(^ and pofitive, and not argumentative. 3. That it have con-

J^ venient certainty of time, place and perfons. 4. That it anfwer

C the plaintiff's allegations in every material point. 5. That it be

fo pleaded as to be capable of trial.

Special

I1 P©tt, Ant. b. I. c. a J,

Ch. 20. Wrongs. 309

Special plcss are ufually in the a/Krmative, fometimes#/'*^^^-
in the negative, but they always advance fome new facl not men-
tioned in the declaration ; and then they mufl be averred to be
true in the common form : — " and this he is ready to verify."
■ — This is not neceffary in pleas of the general ifTue ; thofe always
containing a total denial of the facls before advanced by the other
party, and therefore putting him upon the proof of them.

It is a rule in pleading, that no man be allowed to plead
fpecially fuch a plea as amounts only to the general ifTue, or a
total denial of the charge ; but in fuch cafe he fhall be driven to
plead the general ilTue in terms, whereby the whole queftion is
referred to a jury. But if the defendant, in an affife or action of
trefpafs, be deiirous to^k-efer the validity of his title to the court
rather than the jury, he may flate his title fpecially, and at the
fame time give colour to the plaintiff, or liippofe him to have an
appearance or colour of title, bad indeed in point of law, but
of which the jury are not competent judges. As if his own true
title be, that he claims by feoffment with livery from A, by
force of which he entered on the lands in queflion, he cannot
plead this by itfelf, as it amounts to no more than the general
iffue, md tort, nul dijeifin, in aflife, or not guilty in an action of
trefpafs. But he may allege this fpecially, provided he goes far-
ther and fays, that the plaintiff claiming by colour of a prior deed
of feoffment, without livery, entered ; upon whom he entered ;
and may then refer himfelf to the judgment of the court which
of thefe two titles is the befl in point of law*^.

When the plea of the defendant is thus put in, if it does

not amount to an iffue or total contradiction of the declaration

but only evades it, the plaintiff may plead again, and reply to the

defendant's plea : either traverfmg it, that is, totally denying

it ; as if on an action of debt upon bond the defendant pleads

fohit ad diemy that he paid the money when due, here the plain-
tiff

c Dr. & St, d. ». c. 53.

."AaJo.

oio Private Book III.

tiffin his replication may totally traverfe this plea, by denying
that the defendant paid it: or he may allege new matter in con-
tradiction to the defendant's plea ; as when the defendant pleads
no award made, the plaintiff may reply, and fet forth an adtual
award, and aflign a breach*^, or the replication may ccnfefs, and
avoid the plea, by fome new matter or diftinclion, confident with
the plaintiff's former declaration ; as, in an adian for trefpaihng
upon land whereof the plaintiff is feifed, if the defendant Ihews a
title to the land by deftent, and that therefore he had a right to
enter, and gives colour to the plaintiff, the plaintiff may either
traverfe and totally deny the fad of the defcent ; or he may con-
fefs and avoid it, by replying, that true it is that fuch defcent
happened, but that fince the defcent the defendant himfelf de-
mifed the lands to the plaintiff for term of life. To the repli-
cation the defendant may rejoin, or put in an anfwer called a re-
\:ir2i.'cn^oUJL' joinder. The plaintiff may anfwer the rejoinder by a fur-rejoin-
vi^^/- der ; upon which the defendant may rebut j and the plaintifl*
anfwer him by 2. fur-rebutter. Which pleas, replications, re-
joinders, fur-rejoinders, rebutters, and fur-rebuttors anfwer to
the exceptio, replicatio, dicplicatio, tripUcatio, and quadruplicatio of
the Roman laws".

WfAdi/M The whole of this procefs is denominated the pleading ; in

/J the fever al flages of which it mufl be carefully obferved, not to

depart or vary from the title or defence, which the party has once

r/ t^*.v4j infifled on. For this (which is called a departure in pleading)

' might occafion endlefs altercation. Therefore the replication

. • \. mufl fupport the declaration, and the rejoinder mufl fupport the

plea, without departing out of it. As in the cafe of pleading

no award made, in confequence of a bond of arbitration, to

which the plaintiff replies, fetting forth an actual award; now

the defendant cannot rejoin that he hath performed this award,

for fuch rejoinder would be an entire departure from his original

plea, which alleged that no fuch award was made : therefore he

has

d Append. N". III. §. <J. « !«/?. 4. 14. Braft. /. j. tr. %. c. x.

Ch. 20. Wrongs. 311

has now no other choice, but to traverfc the fa6t of the repUca-
tion, or clfc to demur upon the law of it.

Y E T in many actions the plaintiff, who has alleged in his de-
claration a general wrong, may in his replication, after an eva-
five plea by the defendant, reduce that general wrong to a more
particular certainty, by affigning the injury afrefli with all it's
fpccific circumftances in fuch manner as clearly to afcertain and
identify it, confidently with his general complaint ; which is
called a new or tiovel ajfignment. As, if the plaintiff in trcfpafs
declares on a breach of his clofe in D: and the defendant pleads
that the place where the injury is faid to have happened is a cer-
tain clofe of paflure in D, which defcended to him from B his
father, and fo is his own freehold; the plaintiff may reply and
afTign another clofe in D, fpecifying the abuttals and boundaries,
as the real place of the injury ^

I T hath previoufly been obfervcd^ that duplicity In ph^ding ^lUUccuu^
muff be avoided.. Every plea mull be fimple, intire, connected
and confined to one fingle point : it mulf never be entangled
with a variety of diflind independent anfwers to the fame mat-
ter ; which muft require as many different replies, and introduce
a multitude of iffues upon one and the fame difpute. For this
would often em.barrafs the jury, and Ibmetimes the court itfelf, ^

and at all events would greatly enhance the expenfe of the par-
ties. Yet it frequently is expedient to plead in fuch a manner,
as to avoid any implied admiflion of a facl, which cannot with • - »
propriety or fafety be pofitively aftlrmed or denied. And this -

may be done by what is called -Jiprctefiation ; whereby the p3.rty JitU J li^i^
iiiterpofes an oblique allegation or denial of fome fa6l, protefling
(by the gerund, protejlando) that fuch a matter does or does not ^
exift; and at the fame time avoiding a dired affirmation or de-
nial. Sir Edward Coke hath defined'' a proteflation (in the pithy
dialed of that age) to be " an exclufion of a conclufion," For

the

f Bro. Ahr. t, tref^afi, joj. X84. h i Inft, ij/},

g pag. 308.

gi2 Private Book IIL

the ufe of it is, to fave the party from being concluded with
refpect to fome fad or circumftance, which cannot be diredly
affirmed or denied without falling into duplicity of pleading; and
which yet, if he did not thus enter his proteft, he might be
deemed to have tacitly waived or admitted. 'Thus while tenure
in villenage fubiiiled, if a villein had brought an action againft
his lord, and the lord was inclined to try the merits of the de-
mand, and at the fame time to prevent any conclufion againft
himfeif that he had waived his figniory ; he could not in this
cafe both plead affirmatively that the plaintiff was his villein,
and alfo take ifTue upon the demand ; for then his plea would
have been double, as the former alone would have been a good
bar to the action : but he might have alleged the villenage of
the plaintiff, by way of proteflation, and then have denied the
demand. By this means the future vaf[alage of the plaintiff was
favecl to the defendant, in cafe the ifTue was found in his (the
defendant's) favour' : for the protcflation prevented that conclu-
fion, which would otherwife have refulted from the reft of his
defence, that he had enfranchifed the plaintiff": fince no villein
could maintain a civil action againft his lord. So alfo if a de-
fendant, by way of inducement to the point of his defence, al-
leges (among other matters) a particular mode of feifin or te-
nure, which the plaintiff is unwilling to admit, and yet defires
to take ifTue on the principal point of the defence, he muft deny
the feifin or tenure by way of proteftation, and then traverfe the
(jiefenfive matter. So, laftly, if an award be fet forth by the
plaintifT, and he can affign a breach in one part of it (viz. the
non-payment of a fum of money) and yet is afraid to admit the
performance of the reft of the award, or to aver in general a
non-performanceof any part of it, left fomcthing fliould appear
to have been performed^ he may fave to himfeif any advantage
he might hereafter make of the general non-performance, by al-
leging //j^/ by proteftation J and plead only the non-payment of

the money '.

In

i Co. Litt. 12^. 1 AppenJ. N". III. §. <>.

k See book II, ch. 6. j»ag. g\.

Ch. 20. Wrongs. t? i ^

I N any flagc of the pleadings, when either fide advances or
afHrms any new matter, he ufually (as was faid) avers it to be
true ; " and this he is ready to verify/* On the other hand,
when either fide traverfes or denies the facts pleaded by his an-
tagonift, he ufually tenders an iffue, as it is called ; the language
of which is different according to the party by whom the iifue
is tendered ; for if the traverfe or denial comes from the defend-
ant, the iiTue is tendered in this manner, " and of this he puts
" himfelf upon the country," thereby fubmitting himfelfto the
judgment of his peers'": but if the traverfe lies upon the plain-
tifl', he tenders the iifue or prays the judgment of the peers
againft the defendant in another form; thus, " and this he prays
" may be enquired cf by the country.'*

But if either fide (as, for inftance, the defendant) pleads a
fpecial negative plea, not traverfing or denying any thing that
was before alleged, but difclofing fome new negative matter y
as where the fuit is on a bond, conditioned to perform an a-
ward, and the defendant pleads, negatively, that no award wa:>
made, he tenders no ifi!ue upon this plea; becaufe it does not
yet appear whether the fad will be difputed, the plaintiff not
having yet affcrted the exiftence of any award ; but when the
plaintiff replies, and fets forth an actual fpecific award, if then
the defendant traverfes the replication, and denies the making
of any fuch award, he then and not before tenders an iffue to the
plaintiff. For when in the courfe of pleading they come to a
point which is affirmed on one fide, and denied on the other,
they are then faid to be at iffue; all their debates being at lait
contracted into a fingle point, which muft now be determined
either in favour of the plaintiff or of the defendant.

Vol. III. Q^q

m Append. N". II. §. 4.

ji^ Private Book III,

Chapter the twenty first.
Of issue and DEMURRER.

ISSUE, exitus, being the end of all the pleadings, is the fourth
^^^^ part or ftage of an adion, and is either upon matter of la-w,

iJ ^- or matter oi fad.

Cda^y-rx^'e^. ^ ^ iflueupon matter of law is called a demurrer;^ : and it con-
^ "^ feffes the facts to be true, as ilated by the oppofite party; but
denies that, by the law arifing upon thofe facts, any Injury is
done to the plaintiff, or that the defendant has made out a legi-
timate excufe ; according to the party which firft demurs, demo'
ratur^ refts or abides upon the point in quellion. As, if the
matter of the plaintiff's complaint or declaration be infuflicient
in law, as by not afligning any fuflicient trefpafs,,^,tjienvthe#e^;
fendant demurs to the declaration : if, on the other hand, the
defendant's excufe or plea be invalid, as if he pleads that, he
committed the trefpafs by authority from a ftranger v/ithout
fetting out the ftranger's right; here the plaintiff may demur in
law to the plea: and fo on in every other part of the proceed-
ings, where either fide perceives any material objection in point
of law, upon which he may reft his cafe.

The form of fuch demurrer is by averring the declaration or
plea, the replication or rejoinder, to be infuflicient in law to

maintain

Ch. 2 1, Wrongs. 315

maintain the aclioB or the defence ; and therefore praying judg-
ment for want of fufficient matter alleged^. Sometimes demur-
rers are merely for want of fufiicient /or;?^ in the writ or decla-
tion. But in cafe of exceptions to the form, or manner of
pleading, the party demurring muft by ftatute 27 Eliz. c. 5. and
4 & 5 Ann. c. 16. fet forth the caufes of his demurrer, or wherein
he apprehends the deficiency to conlift. And upon either a ge-
«fr<7/orfuch a //•faW demurrer, the oppofite party avers it to
be fufficient, which is called a joinder in demurrer^, and then
the parties are at ifluein point oflaw. Which iffue in law, or
demurrer, the judges of the court before which the action is
brought muft determine. .

An ifliie of fa(fi:is where the facl only, and not the law, is
difputed. And when he that denies or traverfes the fact pleaded
by his antagonift has tendered the ifTue, thus, " and this he prays
" may be enquired of by the country," or " and of this he puts
" himfelfupon the country," it may immediately be fubjoined
by the other party, " and the faid A. B. doth the like.'* Which
done, the iffue is faid to be joined, both parties having agreed
to reft the fate of the caufe upon the truth of the fact in quef-
tion". And this iffue, of facl, muft generally fpeaking be de-
termined, not by the judges of the court, but by fome other
method ; the principal of which methods is that by the country,
ferpais, (in Latin, per patriani) that is, by jury. Which efta-
blifhment, of different tribunals for determining thefe different
iffues, is in fome meafure agreeable to the courfe of juftice in
the Roman republic, where the _/W/Vc'J ordinarn determined only
queftions of fact, but queftions of law were referred to the de-
cifions of the centumviri'^.

But here it will be proper to obferve, that during the whole
of thefe proceedings, from the time of the defendant's appear-
ance in obedience to the king's writ, it is neceffary that both the

Qjq 2 ' parties

a Append. N°. III. §. 6. c Append. N«. II. §. 4-

L ibi.l. d Cic. de Orator I. i. cjS,

3i<^ Private Book III.

parties be kept or continued in court from day to day, till the fi-
nal determination of thefuit. For the court can determine no-
thing, unlefs in the prefence of both the parties, in perfon or
by their attornies, or upon default of one of them, after his ori-
ginal appearance and a time prefixed for his appearance in court
ngain. Therefore in the courfe of pleading, if either party ne-
glects to put in his declaration, plea, replication rejoinder, and
the like, within the times allotted by the flanding rules of the
court, the plaintiff, if the omifiion be his, is faid to be imnfuit,
or not to follow and purfue his complaint, and Ihall lofe the
benefit of his writ: or, if the negligence be on the fide of the
defendant, judgment may be had againft him, for fuchhis default.
And, after iffue or demurrer joined, as well as in fome of the pre-
vious Itages of proceeding, a day is continually given and entered
upon the record, for the parties to appear on from time to time,
as the exigence of the cafe may require. The giving of this day
is called the continuance^ becaufe thereby the proceedings are con-
tinued without interruption from one adjournment to another.
If thefe continuances are omitted the caufe is thereby difconti-
-Bued, and the defendant is difchargedy^^^ d'le^ without a day,
for this turn: for by his appearance in court he has obeyed the
command of the king's writ ; and, unlefs he be adjourned over
to a clay certain, he is no longer bound to attend upon that fum-
mons ;. but he mufl be warned afrefli, and the whole mufl begin
de novo.

Nov/ it may fometlmes happen, that after the defendant has
pleaded, nay, even after iffue or demurrer joined, there may have
arifen fome new matter, which it is proper for the defendant to
plead ; as, that the plaintiff, being a feme-fole, is fince mar-
ried, or that file has given the defendant a releafe, and the like:
here, if the defendant takes advantage of this new matter, as
early as he pofTibly can, 17*2^. at the day given for his next ap-
pearance, he is permitted to plead it in what is called a plea fnh
darrein continuance^ or fmce the lafl adjournment. For it would
jje unjull to exclude liim from the benefit of this new defence,

which

CIi. 2 1. Wrongs, 317

which it was not in his power to make when he pleaded the for-
mer. But it is dangerous to rely on fuch a plea, without due
confideration ; for it confeffes the matter which was before in
difpute between the parties'". And it is not allowed to be put in,
if any continuance has intervened between the arifmg of this frefh
matter and the pleading of it: for then the defendant is guilty
of negled, or laches, Tind is fuppofedto rely on the merits of his
former plea. Alfoitisnot allowed after a demurrer is determi-
ned, or verdict given ; becaufe then relief may be had in another
way, namely, by writ of audita querela, of which hereafter.
And thefe pleas puis darrein continuance, when brought to a de-
murrer in law or ilfue of fad, fhall be determined in like man-
ner as other pleas.

WEhavefaid, that demurrers, or queftions concerning the
fufficiency of the matters alleged in the pleadings, are to be de-
termined by the judges of the court, upon folemn argument by
counfel on both fides; and to that end a demurrer book is made
up, containing all the proceedings at length, which are after-
wards entered on record', and copies thereof^ called /j/^r-^co/^j
are delivered to the judges to perufe. The record^ is a hiftory
of the m.oft material proceeclings in the caufe, entered on a
parchment roll, and continued down to the prefent time ; in
which muft be ftated the original writ and fummons, all the
pleadings, the declaration, viewer oyer prayed, the imparlances,
plea, replication, rejoinder, continuances, and whatever farther
proceedings have been had ; all entered verbatim on the roll, and
alfo theifi'ueor demurrer, and joinder therein.

These were formerly all written, as indeed all public pro-
ceedings were, in Norman or law French, and even the argu-
ments of the council and decifions of the court were in the fame
barbarous dialect. An evident and Ihameful badge, it muft be
owned, of tyranny and foreign fervitude ; being introduced un-
der

f Cro. Ellr, 49. i Append. N". II. §. 4. N?. HI. §• «•

gi8 Private Book III.

der the aufpices of William the Norman, and his fons : whereby
the obfervation of the Roman fatyriil was once more verified,
that " Gallia caufidicos dociiit facunda Brita7mos^J" This continued
till the reign of Edward III ; who, having employed his arms fuc-
cefsfully in fubduing the crown of France, thought it unbefeem*-
ing the dignity of the victors to ufe any longer the language of
a vanquilhed country. By a flatute therefore, paffed in the thirty
iixth year of his reign\ it was enacted, that for the future all
pleas fliould be pleaded, ihewn, defended j anfwered, debated,
andjudged in the Englifh tongue; but be entered and enrolled
in Latin. In like manner as don Alonfo X, king of Caflile (the
great-grandfather of our Edward III.) obliged his fubjecis to ufe
the Caftilian tongue in all legal proceedings'; and as, in 1286,
the German language was eftablifhed in the courts of the em-
pire''. And perhaps if our legillature hkd then directed that the
writs themfelvesjwhich are mandates from the king to bis fubjeds
to perform certain acts or to appear at certain places, fhouid have
been framed in the Englilli language, according to the rule of our
antient law', it had not been very improper. \But the record or
enrollment of thofe writs and the proceedings thereon, which
was calculated for the benefit of pofterity, was more ferviceable
(becaufe more durable) in a dead and immutable language than
in any flux or living one. The praclifers however, being ufed
to the Norman language, and therefore imagining they could
exprefs their throughtsmore aptly and moreconcifely in that than
in any other, ftill continued to take their notes in law French ;
and of courfe when thofe notes came to be publifhed under the
denomination of reports, they were printed in that barbarous dia-
lect; which, joined to the additional terrors of a Gothic black
letter, has occafioned many a fludent to throw away his Plow-
den and Littleton, without venturing to attack a page of them.
And yet in reality, upon a nearer acquaintance, they would have
found nothing very formidable in the language which differs

ia

g Jtiv. XV. III. k Jhld. j^xix. 135.

h c. 15. 1 Mirr. c. 4. §. 3.

i MoJ. Un. Ilirt, xx. ju.

Ch. 2 1. Wrongs. 319

in it's grammar and orthography as much from the modern
French, as the diction of Chaucer and Gower does from that of
Addifon and Pope. Befides, as the Englifh and Norman lan-
guages were concurrently ufed by our anceftors for feveral cen-
turies together, the two idioms have naturally ailimilated, and
mutually borrowed from each other: for which reafon the gram-
matical conilruclion of each is fo very much the fame, that I
apprehend an Enghfhman (with a week's preparation) would un-
derfland the laws of Normandy, collected in their grand coujlu-
mier, as well if not better than a Frenchman bred within the
walls of Paris.

T H E Latin, which fucceeded the French for the entry and
enrollment of pleas, and which continued in ufe for four centu-
ries, anfwers fo nearly to the Englifh (oftentimes word for word)
that it, is not at all fuprizing it fhould generally be imagined to
be toL^lly fabricated at home, with little more art or trouble than
by adding Roman terminations to Englifh words. VvThereas in
reality it is a very univerfal dialecl, fpread throughout all Europe
at the irruption of the northern nations, and particularly accom-
modated and moulded to anfvv'er all the purpofes of the lawyers
with a peculiar exaclnefs and precilion. This is principally owing"
to the iimplicity or (if the reader plaefes) the poverty and bald-
nefs of it's texture, calculated to exprefs the ideas of mankind
juft as they arife in the human mind, v/ithout any rhetorical
flourillies,* or perplexed ornaments of flyle : for it may be ob-
fervcd, that thofe laws and ordinances, of public as well as pri-
vate communities, are generally the moft eafily underftood,
where flrength and perfpicuity, not harmony or elegance of ex-
preflion, have been principally confulted in compiling them.
Thefe northern nations, or rather their legiHators, though they
rcfoived to make ufe of the Latin tongue in promulging their
laws, as being more durable and more generally known to their
conquered fubjecls than their own Teutonic dialects, yet (either
through choice or neceffity) have frequently intermixed therein
fome words of a Gothic original j which is, more or lefs, the

. cafe

320 Private Book III,

cafe in every country of Europe, and therefore not to be imputed
as any peculiar blemifli in our Englifh legal latinity "". The truth
is, what is generally denominated law-latin is in reality a mere
technical language, calculated for eternal duration, and eafy to
be apprehended both in prefent and future times; and on thofe
accounts beft fuited to preferve thofe memorials which are in-
tended for perpetual rules of action. The rude pyramids of
Egypt have endured from the earlieft ages, while the more mo-
dern and more elegant ftrudures of Attica, Rome, and Palmyra
have funk beneath the ftrokc of time.

A s to the objedlon of locking up the law in a flrange and
unknown tongue, this is of little weight with regard to records,
which few have occafion to read but fuch as do, or ouGfht to,
underftand the rudiments of Latin. And befides it may be ob-
ferved of the law-latin, as the very ingenious lir John Davies"
obferves of the law-french, " that it is fo very eafy .to be learn-
*' ed, that the meanefl wit that ever came to the ftudy of the
** law doth come to underftand it almoft perfectly in ten days
" without a reader.'*

I T is true indeed that the many terms of art, with which the
law abounds, are fufEciently harlh when latinized (yet not more
fo than thofe of other fciences) and may, as Mr. Selden obferves",
give offence " to fome grammarians of fqueamifh ftomachs, who
" would rather chufe to live in ionorance of thino:s the moft
" ufeful and important, than to have their delicate cars wounded
" by the ufe of a word, unknown to Cicero, Saluft, or the other
" writers of the Auguftan age.** Yet this is no more than mufl
unavoidably happen when tilings of modern ufe, of which the
Romans had no idea, and confequently no phrafes to exprefs

them,

m The following feiitence, "7? jKfj flii:?- others of the fame ftatnp, in the laws of the

" tdlia curtefua exicrit, if any one goes out BurgunJians on the continent, I'cfore the

" of his own court to fight," &c. may raife end of the fifth ccjitury. {Add. i. c. s. §. a.)

a fmile in the ftudent as a flaming modern n Pref. Rep.

anghcifm : but he may meet with it, among o i'rcf. ad Eadmcr.

Ch. 21. Wrongs. 321

them, come to be delivered in the Latin tongue. It would puzzle
the moft claflical fcholar to find an appellation, in his pure lati-
nity, for a conftable, a record, or a deed of feoffment: it is
therefore to be imputed as much to neceflity, as ignorance, that
they were ftilcd in our forenfic dialed: conftabularius, recordum,
and feojf anient urn. Thus again, another uncouth word of our
antient laws (for I defend not the ridiculous barbarifms fometimes
introduced by the ignorance of tiwdern praclifers) the fubflantive
murdrum^ or the verb murdrare, however harlK and unclafTical ic
may feem, was necefTarily framed to exprefs a particular offence;
fince no other word in being, occidere, inter^cere, necare, or the
like, was fufHcient to exprefs the intention of the criminal, or
quo animo the acl was perpetrated j and therefore by no means
came up to the notion of murder at prefent entertained by our
law ; viz, a killing with malice aforethought.

A SIMILAR neceflity to this produced afimilar effeAat By-
zantium, when the Roman laws were turned into Greek for the
ufe of the oriental empire: for, without aijy regard to Attic
elegance, the lawyers of the imperial courts made no fcruple to
tr2inila.te^dei-com?niJ/anos, phideikommilTarious''; cubiculum, kou-
boukleion*';yf//W-/7OT;7//7j-,paida-phamilias'"; r epu di um, veipoudion^ ^
compromijfum, kompromiffon^; reverentia et oh/equium,,Teveventi3.
kas obfekouion " ; and the like. They ftudied more the exa^J: and
precife import of the words, than the neatnefs and delicacy of
their cadence. And my academical readers will excufe me for
fuggefting, that the terms of the law are not more numerous,
more uncouth, or more difhcult to be explained by a teacher,
than thofe of logic, phyfics, and the whole circle of Ariftotle's
philofophy, nay even of the politer arts of architecture and it's
kindred fludies, or the fcience of rhetoric itfelf. Sir Thomas
More*s famous legal queftion"^ contains in it nothing more diffi-
VoL. III. R r cult,

p Nov. T. c. J. t No'j. 8i. c. II.

p Nov. T. C. I.

q Nev. 8. gdiEi. Conlantinof.
T Nov. 117. C, I.
s Ibid. c. 8.

w See pag. 149,

cc

c<

22 Private Book III.

cult, than tlie definition which in his time the philofophers cur»
rently gave o( iher?ndtcriaprima, the groundwork of all natural
knowlege ; that it is " fieqiw quid, neque quantii/.: ncque quale, ne-
" que aliquid eoriun quibus ens deterni'inatur ;" or it's -.ubfequent ex-
planation by Adrian Heereboord, whoaflures us'' that " materia
■prima non ejl ccrpus, neque per formajii corporeiiatis, neque per fimpli'
' cem efjeniiam : efi tawen ens, et quide?n fiihjlantia, licet incompleta ;
habetqiie afnim ex fe entitativum, et fimul eft potentia fubjectiva.'**
The law therefose, with regard to it's technical phrafes, fiands
upon the fame footing with other ftudies, and requefts only the
fame indulgence.

This technical Latin continued in ufe from the time of it's
firft introduclion, till the fubverfion of our antient conftitution
under Cromwell ; when, among many other innovations in t^ie
law, fome for the better and forae for the worfe, the language
of our records was altered and turned into Engliih. But, at the
reftoration of king Charles, this novelty was no longer counte-
nanced ; the prailifers finding it very difficult to exprefs them-
ielves fo concifely or fignificantly in any other language but the
Latin. And thus it continued without any fenfible inconve-
nience till about the year 1730, when it was again thought pro-
per that the proceedings at law fliould be done into Engliih, and
it was accordingly fo ordered by flatute 4 Geo.IL c. 26. This
•was done, in order that the common people might have know-
lege and underfi:andingof what was alleged or done forand againft
them in the procefs and pleadings, the judgment and entries in
a caufe. Which purpofe I know not how well it has anfwered ;
but am apt to fufped that the people are now, after many years
experience, altogether as ignorant in rpatters of law as before.
On the other hand, thefe inconveniences have already arifen
from the alteration ; that now many clerks and attorneys are
hardly able to read, much lefs to underftand, a record even of
fo niodern a date as the reign of George the firft. And it has
much enhanced the expenfe of all legal proceedings : for fmce

the

S Philofoph. natural, f. i. §.aB, 6*f.

Ch. 2 1. Wrongs,

323

the practifcrs are confined (for the fake of the flamp duties,
which are thereby confiderably encreafed) to write only a ftated
number of words in a flieet ; and as the EngUlh language,
through the multitude of it's particles, is much more vei'bofe
than the latin ; it follows that the number of llieets mufl be
very much augmented by the change''. The tranflation alfo
of technical phrafcs, and the names of writs and other procefs
were found to be fo very ridiculous (a writ of mfi, frius, quare
Impedit, fer'i facias^ habeas corpus, and the reft, not being ca-
pable of an Engiilli drefs with any degree of ferioufnefs) that in.
two years tirae a new ad was obliged to be made, 6 Geo. II.
c. 14; which allows all technical words to continue in the ufual
language, and has thereby almoft defeated every beneficial pur-
pofe of the former llatute.

What is faid of the alteration of language by the lla-
tute 4 Geo. 11. c. 26. will hold equally ftrong with refpect to the
prohibition of uiing the antient immutable court band in writing
the records or other legal proceedings ; whereby the reading of
any record that is forty years old is now become the object of
fcience, and calls for the help of an antiquarian. But that branch
of it, which forbids the ufe of abbreviations, feems to be of more
folid advantage, in delivering fuch proceedings from obfcurity:
according to the precept of Juftinian"^ j " ne -per fcripturam al'i-
" qua fiat in po/lerum dubitatio, jubemus non per figlorum capt tones
" et compendiofa aenigmata ejufdem codic'is textu?n confcribi, fed per
*' literarum confequentiam explanari cencedimus" But, to return to
our demurrer.

When the fubflance of the record is completed, and copies
are delivered to the judges, the matter of law, upon which the
demurrer is grounded, is upon folemn argument determined by
the court, and not by any trial by jury ; and judgment is there-

R r 2 upon

y For inftance thefe three words, " fe- cd into feven, *• acceiding to the form of
•* cundum JonnamjiiituSit" are now convert- " the ftatute."

z de cotics^t, digejl' §.13.

524 Private Book III.

upon accordingly given. As, in an adion of trefpafs, if the
defendant in his plea confefles the facb, but juftifies it caufa ve-
Tiatioms, for that he was hunting ; and to this the plaintiflP de-
murs, that is, he admits the truth of the plea, but denies the
j'uftification to be legal : now, on arguing this demurrer, if the
court be of opinion, thataman may notjuftify trefpafs in hunt-
ing, they will give judgment for the plaintiff; if they think that
he may, then judgment is giren for the defendant. Thus is an
jffue in law, or demurrer, difpofed of.

A N iffue of fad takes up more form and preparation to fettle
jt; for here the truth of the matters alleged muft be folemnly
examined in the channel prefcribed by law. To which exami-
Bation, of fads, the name of trial is ufually confined, "whi(;h
will be treated of at large in the two fucceeding chapters.

Ch. 2 2. Wrong s, 325

Chapter the twenty second.
Of the several SPECIES of TRIAL.

TH E uncertainty of legal proceedings is a notion fo generally-
adopted, and has fo long been the Handing theme of wit
and good humour, that he who ftiould attempt to refute it would
be looked upon as a man, who was either incapable of difcern-
ment himfelf, or elfe meant to impofe upon others. Yet it may
not be amifs, before we enter upon the feveral modes whereby
certainty is meant to be obtained in our courts of juftice, to in-
quire a little wherein this uncertainty, fo frequently complained
of, conlifts J and to what caufes it owes it*s original.

It hath fometimes been faid to owe it's original to the num-
ber of our municipal conftitutions, and the multitude of our ju-
dicial deciiions'' ; which occafion, it is alleged, abundance of
rules that militate and thwart with each other, as the fentiments
or caprice of fucceflive legiflatures and judges have happened to
vary. The fad, of multiplicity is allowed ; and that thereby
the refearches of the fludent are rendered more difficult and la-
borious : but that, with proper induflry, the refult of thofe en-
quiries will be doubt and indecilion, is a confequence that cannot
be admitted. People are apt to be angry at the want of fimpli-
city in our laws : they miflake variety for confufion, and com-
plicated cafes for contradidory. They bring us the examples of

arbitrary

a See the preface to fir John Davici's reports : M^hcrein many of the following topics
are difcuded more at laige.

326 Private Book III.

arbitrary governments, of Denmark, Mufcovy, and Pruflla: o£
wild and uncultivated nations, the favages of Africa and Ameri-
ca ; or of narrow domeftic republics, in antient Greece and mo-
dern Switzerland ; and unreafonably require the fame paucity of
laws, the fame concifenefs ofpraftice, in a nation of freemen,
a polite and commercial people, and a populous extent of ter-
ritory.

In an arbitrary defpotic, government, where the lands are
at the difpofal of the prince, the rules of fuccelHon, or the mode
of enjoyment, muft depend upon his will and pleafurc. Hence
there can be but few legal determinations relating to the pro-
perty, the defcent, or the conveyance of real eftates ; and the
fame holds in a ftronger degree with regard to goods and chat-
tels, and the contrads relating thereto. Under a tyrannical fway
trade muft be continually in jeopardy, and of confequence can
never be extenlive : this therefore puts an end to the neceility of
an infinite number of rules, which the Englifh merchant daily
recurs to for adjufting commercial differences. Marriages arc
there ufually contracted with flaves ; or at leaft women are treat-
ed as fuch : no laws can be therefore expe6led to regulate the
rights of dower, jointures, and marriage fettlements. Few alfo
are the perfons v/ho can claim the privileges of any laws ; the
bulk of thofe nations, W2r. the commonalty, boors, or peafants,
being merely villeins and bondmen. Thofe are therefore left to
the private coercion of their lords, are efleemed (in the con-
templation of thefe boaftedlegifiators) incapable of either right
or injury, and of confequence are entitled to no redrefs. We
may fee, in thefe arbitray ftates, how large a field of legal con-
tefts is already rooted up and deftroyed.

Again; were we a poor and naked people, as the favages of
America are, flrangers to fcience, to commerce, and- the arts as
well of convenience as of luxury, we might perhaps be con-
tent, asfome ofthemare faid tobe, to refer all difputes to the
next man we met upon the road, and fo put a fliort end to every

contro-

Ch. 22. Wrongs. 327

controverfy. For in a ftate of nature there is no room for muni-
cipal laws; and the nearer any nation approaches to that ftate,
the fewer they will have occafion for. When the people of Rome
were little better than fturdy fhepherds or herdfmen, all their
laws were contained in ten or twelve tables: but as luxury, po-
litenefs, and dominion increafed, the civil law increafed in the
fame proportion, and fwelled to that amazing bulk which it now
occupies, though fuccefiively pruned and retrenched by the em-
perors Theodofius and Juftinian.

I N like manner we may laftly obferve, that, in petty ftates
and narrow territories, much fewer laws will fujSice than in large
ones, becaufe there are fewer objects upon which the laws can
operate. The regulations of a private family are fhort and well-
known ; thofe of a prince's houfliold are neceffarily more various
and difFufe.

The caufes therefore of the multiplicity of the Englifli laws
are, the extent of the country which they govern ; the commerce
and refinement of it*s inhabitants; but, above all, the liberty
and property of the fubjecl. Thefe will naturally produce an
infinite fund of difputes, which muft be terminated in a judicial
way: and it is eflential to a free people, that thefe determina-
tions be publifhed and adhered to : that their property may be as
certain and fixed as the very conftitution of their ftate. For
though in many other countries every thing is left in the breaft
of the judge to determine, yet with us he is only to declare 2liM
proJiounce^ not to 7nake or new-model^ the law. Hence a multitude
of decifions, or cafes adjudged, will arife; for feldom will it
happen that any one. rule will exaclly fuit with many cafes. And
in proportion as the decifions of courts of judicature are multi-
plied, the law will be loaded with decrees, that may fometimes
(though rarely) interfere with each other : either becaufe fuc-
ceeding judges may not be apprized of the prior adjudication;
or becaufe they may think differently from their predeceflbrs ;
or becaufe the fame arguments did not occur formerly as at pre-

fent^

g28 Private Book IIL

fent; or, in fine, becaufe of the natural imbecillity and imper-
fedion that attends all human proceedings. But, wherever this
happens to be the cafe in any material point, the legiflature is
ready, and from time to time both may, and frequently does,
intervene to remove the doubt ; and, upon due deliberation had,
determines by a declaratory ftatute how the law fhall be held for
the future.

Whatever inftances therefore of contradiction or uncer-
tainty may have been gleaned from our records, ox reports, muft
be imputed to the defects of hunian laws in general, and are not
owing to any particular ill conftruclion of the Liiglilh fyftem.
Indeed the reverfe is moft ftrictly true. The Engiilh law is lefs
embarraffed with inconfiftent refo.utions and doubtful qneftions
than any other known fyftem of the fame extent and the fame
duration. I may inftanceiij the civil law: the text whereof, as
collected by Juftinian and his agents, is extremely voluminous
and diffufe ; but the idle comments, obfcure giolfes, and jarring
interpretations grafted thereupon by the learned jurifts, are lite-
rally without number. And thefe gloffes, which are mere pri-
vate opinions of fcholaftic doctors (and not, like our books of
reports, judicial determinations of the court) are all of authority
fufHcient to be vouched and relied on ; which muft needs breed
great diftraction and confuiion in their tribunals. The fame may
be faid of the canon law ; though the text thereof is not of half
the antiquity with the common law of England; and though
the more antient any fyftem of laws is, the more it is liable to
be perplexed with the multitude of judicial decrees. When
therefore a body of laws, of fo high antiquity as the Englifh, is
in general fo clear and perfpicuous, it argues deep wifdom and
forefight in fuch as laid the foundations, and great care and cir-
cumfpedion, in fuch as have built the fuperftrudure.

B u T is not (it will be afked) the multitude of lawfuits, which
we daily fee and experience, an argument againft the clearnefs
and certainty of the law itfelf ? By no means : for among the

various

Ch. 2 2. Wrongs. 329

various dirpiites and controverfies, which arc dally to be met with
in the courle of legal proceedings, it is obvious to obferve how
very few arife from obfcurity in the rules or maxims of law.
An a<5lion (hall feldom be heard of, to determine a queftion of
inheritance, unlefs thefaclof thedefcent be controverted. But the
dubious points, which are ufually agitated in our courts, arife
chiefly from the difficulty there is of afcertaining the intentions
of individuals, in their folemn difpofitions of property ; injtheir
contracts, conveyances, and teftaments. It is an object indeed
of the utmoft importance in this free and commercial country,
to lay as few reflraints as poffible upon the transfer of poffeffions
from hand tohand,or their various defignations marked out by the
prudence, convenience, or neceffities, or even by the caprice, of
their owners : yet to inveftigate the infe?2fto?i of the owner is fre-
quently matter of diiScillty, among heaps of entangled conveyances
or wills of a various obfcurity. The law rarely hefitates in decla-
ring it's own meaning; but the judges are frequently puzzled
to find out the meaning of others. Thus the pov/ers, the intc-
refl, the privileges, and properties of a tenant for life, and a te-
nant in tail, are clearly diftinguiflied and precifely fettled by law :
but, what words in a will fhall conftitute this or that eftate, has
occafionally been difputed for more than two centuries pad ; and
will continue to be difputed as long a3*the careleffnefs, the igno-
rance, or fingularity of teftators fhall continue to cloath their
intentions in dark or new-fangled expreilions.

But, notivithflandinigfovaft an accelTion of legal controverfies,
arifmg from fo fertile a fund as the ignorance and wilfulnefs of
individuals, thefev/ill bear no comparifon in point of number to
thofe which are founded upon the dilhonefty, and difingenuity
of the parties : by either their fuggefling complaints that are
falfe in fact, and thereupon bringing grbundlefs aflions ; or
by their denying fuch fads as are true, in fetting up unwarrant-
able defences. Ex fd^o oritur JUS : if therefore the fad be per-
verted or mif-reprefented, the law which arifes from thence will
unavoidably be unjuft or partial. And, in order to prevent this.
Vol. III. S f 'it

jjo P k I V A T E - Book IlL

it is necelTary to fet right the fad, and eftablifli the truth con-
tended for, by appealing to fome mode oi probation or trial, which
the law of the country has ordained for a criterion of truth and
falfhood.

These modes of probation or trial form in every civilized
country the great object of judicial decifions. And experience
will abundantly fliew, that above a hundred of our lawfuits arife
from difputed facts, for one where the law is doubted of. About
twenty days in the year are fufficient, in Weftminftsr-hall, io
fettle (upon folemn argument) every demurrer or other 'fpecial
point of law that arifes throughout the nation : but two months
are annually fpent in deciding the truth of facls, before lix
diftlnd tribunals, in the feveral circuits of England; excluiive
of Middlefexand London, which afford a fupply of caufes much
more than equivalent to any two of the largeft circuits.

Trial then is the examination of the matter of facl in ifTue ;
of which there are many different fpecies, according to the dif-
ference of the fubjecl, or thing to be tried : of all which we
will take a curfory view in this and the fubfequent chapter. For
the law of England fo induftriouily endeavours to invefiigatc
truth at any rate, that it will not confine itfelf to one, or to a
few m.anners of trial ; but varies it's examination of fads ac-
cording to the nature of the facls themfelves : this being the one
invariable principle purfued, that as well the beft method of
trial, as the beft evidence upon that tr^al, which the nature of
the cafe affords, and no other, fiiall be admnjitted in the Englifh
courts of juftice.

The fpecies of trials in civil cafes are feven. By record ; by
vifpe^ion, or examijiation ; by certificate ; by ivitnejfes ; by wager
of battel ; by wager of law) and hj jury.

I. First then of the trial by record. This is only ufed in
one particular inftance : and that is where a matter of record is

pleaded

Ch. 2 2. Wrongs. 331

pleaded in any action, as a fine, a judgment, or the like; and
the oppofite party pleads " Jiul tie! record,'* that there is no fuch
matter of record exifting : upon this iffue is tendered and join-
ed in the following form, " and this he prays may be enquired
<' of by the record, and the other doth the like ;" and hereupon
the party pleading the record has a day given him to bring it in,
and proclamation is made in court for him " to bring forth his
*' record or he fliall be condemned ;" and, on his failure, his
antagonift; fliall have judgment to recover. I'he trial therefore
of this iflue is merely by the record ; for, as fir Edward Coke''
obferves, a record or enrollment is a monument of fo high a na-
ture, and importeth in itfelf fuch abfolute verity, that if it be
pleaded that there is no fuch record, it fhall not receive any trial
by witnefs, jury, or otherwife, but only by itfelf. Thus titles
of nobility, as w^hether earl or no earl, baron or no baron, fhall
be tried by the king's writ or patent only, which is matter of
record". Alfo in cafe of an alien, whether alien friend or ene-
my, (hall be tried by the league Or treaty between his fovereign
and ours ; for every league or treaty is of record^. And alfo,
whether a manor be held in antient demefne ornot, fhall be
tried by the record of domefday in the king's exchequer.

II. Trial by infpe6lmi^ or examination, is when for the
greater expedition of a caufe, in fome point or iiTue being either
the principal queilion, or ariling collaterally out y^ it, but being
evidently the objeclof fenfe, the judges of the court, upon the
teftimony of their owm fenfes, fhall decide the point in difpute.
For, where the affirmative or negative of a queftion is matter of
fuch obvious determination, it is not thought necelTary to fum-
mon a jury to decide it; who are properly called in to inform
the confcience of the court in refpecl of dubious fads : and there-
fore when the fad, from it's nature, muft be evident to the court
either from ocular demonftration or other irrefragable proof,
there the law departs from it's ufual refort, the verdict of twelve

S f 2 men,

b I Infl. 117. i(Jo. d 5 Rep. 3i*

f 6 Rep. SJ>

332 Private Book III.

men, and relies on the judgment of the court alone. As in cafe
of a fuit to reverfe a fine for non-age of the cognizor, or to fet
afide a Hatute or recognizance entered into by an infant j here,
and in otlier cafes of the like fort, a writ Ihall iffue to the flie-
riii% commanding him that he conftrain the faid party to ap-
pear, that it may be alcertained by the view of his body by the
king's juftices, whether he be of full age or not ; ut per ajpe^um
" corporis fui conji are pot erit jiifl'ici arils nojlris^ ft praediElus A fit
*• plenae, aetatis necne[.''' If however the coi^rt has, upon in-
fpection, any doubt of the age of the party (as may frequently
be the cafe) it may proceed to take proofs of the fact ; and, par-
ticularly, may examine the infant himfelf upon an oath of voir
dire, veritafem dicere, that is, to make true anfwer to fuch quef-
tions as the court ftiall demand" of him: or the court may e:^-
amine his mother, his god-father, or the like*.

In like manner if a defendant pleads an abatement of the fuit
that the plaintiff is ^^(2^, and one appears and calls himfelf the
plaintiff, which the defendant denies ; in this cafe the judges
fhall determine by infpe<5tion and examination, whether he be
the plaintiff or not^, Alfo if a man be found by a jury an idiot
a nativitate^ he may come in perfon into the chajicery before the
chancellor, or be brought there by his friends, to be infpeded
and examined, whether idiot or not : and if, upon fuch view
and enquiry, it appears he is not fo, the verdid of the jury^
and all the proceedings thereon, are utterly void and inflantly of
no effect'.

Anothe~r Inflance in which the trial by infpe<5lion maybe
ufed, is when, upon an appeal of maihem, the ilfue joined i^
whether it be maihem or no maihem, this fhall be decided by
the court upon infpe^tion, for which purpofe they may call ia

the

e 9 Rep. 31. tried by inrpe£t!on.

f This tjuefHon of non-age was formerly, g % Roll Abr. 573.

arcordiug to Glanvil, (/. 13. c. 15.) tried h 9 Rep. 30.

by a jury of eight men ; though now it is i Ihid. 31,

Ch. 22. Wrongs. 333

the afliftance of furgeons^ And, by analogy to this, in an ac-
tion of trefpafs for maihem, the court, (upon view of fuch mai-
hem as the plaintiff has laid in his declaration, or which is cer-
tified by the judges who tried the caufe to be the fame as was
given in evidence to the jury) may encreafe the damages at their
own difcretion"; as may alfo be the cafe upon view of an atro-
cious battery'. But then the battery rauft likewife be alleged fo
certainly in the declaration, that it may appear to be the fame
with the battery infpecled.

Also, to afcertain any circumftances relative to a particular
day paft, it hath been tried by an infpeftion of the almanac by
the court. Thus, upon a writ of error from an inferior court,
that of Lynn, the error affigned was that the judgment was
given on a funday, it appearing to be on 16 February, 26 Eliz. and
upon infpedion of the almanacs of that year it was found that
the 26th of February in that year aflually fell upon a funday :
this was held to be a fuificient trial, and that a trial by a jury
■was not neceffary, although it was an error in fad ; and fo the
judgment was reverfed'^. But in all thefe cafes, the judges, i£
they conceive a doubt, may order it to be tried by jury.

III. The trial by certificate is allowed in fuch cafes, where
the evidence of the perfon certifying is the only proper criterion
gf the point in difpute. For, when the fad in queftion lies out
qf the cognizance of the court, the judges muft rely on the fo-
lemn averment or information of perfons in fuch a ftation, as
affords them the moft clear and competent knowlege of the
truth. As therefore fuch evidence (if given to a jury) muft have
been conclufive, the law, to fave trouble and circuity, permits
the fact to be determined upon fuch certificate merely. Thus,
I. If the iiTue be whether A was abfent with the king in his
army out of the realm in time of wai', this Ihall be tried" by

the

j % Roll. Abr. S78. m Cro. Eliz. xiy»

k I Sid. 108. n Litt. §. lei.

1 Hardr. 408.

334

R I V A T E

Book III.

the certificate of the marefchall of the klng*s hoft in writing
under his feal, which fhall be fen t to the juftices. 2. If, in or-
der to avoid an outlawry or the like, it was allegedthat the de-
fendant was in prifon, ultra ?nare, at Bourdeaux, or in the fer-
vice of the mayor of Bourdeaux, this fliould have been tried by
the certificate of the mayor ; and the like of the captain of
Calais^. But, when this was law", thofe towns were under the
dominion of the crown of England. And therefore, by a pa-
rity ofreafon, itfhould now hold that in limilar cafes, ariling at
Jamaica or Minorca, the trial fhould be by certificate from the
governor of thofe iflands. We alfo find^ that the certificate of
the queen's mefienger, fent to fummon home a peerefs of the
realm, was formerly held a fuiHcient trial of the contempt in
refufmg to obey fuch furnmons. 3. For matters within the
realm ; the ciifloms of the city of London fhall be tried by the
certificate of the mayor and aldermen, certified by the mouth
of their recorder^; Upon a furmife from the party alleging it,
that the cuftom ought to be thus tried : elfe it muft be tried by
the country^ As, the cuftom of diftributing the efFefts of
freemen deceafed : of enrolHng apprentices ; or that he who i^
free of one trade may ule another ; if any of thefe, or other li-
milar, points come in iffue. But this rule admits of an exception,
•where the corporation of London is party, or interefted, in the
fuit ; as in an aftion brought for a penalty infiicled by the cuf-
tom : for there the reafon of the law will not endure fo partial
•Tt. trial; but this cuftom fhall be determined by a jury, a»d not
by the mayor and aldermen, certifying by the mouth of their
recorder\ 4. In fome cafes, the flieriff of London's certificate
fliall be the final trial : as if the iffue be, whether the defendant'
be a citizen of London or a foreigner', in cafe of privilege
pleaded to befued only in the city courts. Of a nature fome-
what fimiliar to which is the trial of the privilege of the univer-
iity, when the chancellor claims cognizance of the caule, be-

cauf^

o 9 Rep. 31.

p X Roll. Abr. 583.

«! Dyer. 176, 177.

r Co. Litt. 74. 4 Burr. 3148.

s Rro. Ahr. t. trial, ^l pS,
t Hob. R5.
V Co. Litt. 74.

Ch. 22. Wrongs. 335

caiifeoneof the parties is a privileged perfon. In this cafe, the
charters, confirmed by act of parliament, dired the trial of the
queftion, whether a privileged perfon or no, to be determined 'by
the certificate and notification of the chancellor under feal; to
which it hath alfo been ufiial to add an affidavit of the fad : but
if the parties be at iflue between themfelves, v^^hether A is a mem-
ber of the univerfity or no, on a plea of privilege, the trial fliall
be then by jury, and not by the chancellor's certificate"; becaufe
the charters dired: only that the privilege be allowed on the
chancellor's certificate, when the claim of cognizance is made
by him, and not where the defendant himfelf pleads his privi-
lege: fo that this mud be left to the ordinary courfe of deter-
mination. 5. In matters of ecclefiaftical jurifdiclion, as mar-
riage, and of courfe general bajlardy, and alfo excommunication,
and orders^ thefe, and other like matters, Ihall be tried by the
bifliop's certificate'^. As if it be pleaded in abatement, that the
plaintiff 13 excommunicated, and iiTue is joined thereon ; or if a
man claims an eftate by dcfcent, and the tenant alleges the de-
mandant to be a bailard ; or if on a writ of dower the heir
pleads no marriage ; or if the iffue in a quare impedit be, whether
or no the church be full by inliitution ; all thefe being matters
of mere ecciefiaflical cognizance, fhall be tried by certificate
from the ordinary. But in an aclion on the cafe for calling a man
baftard, the defendant having pleaded in jufi:ification that the
plaintiff was really fo, this was directed to be tried by a jury^ :
becaufe, whether the plaintiff be found either a general or fpe-
cial baftard, the juflification will be good; and no queflion of
fpecial baflardy ihall be tried by the bifhop's certificate, but by
.a jury ^. For a fpecial baftard is one born, before marriage, of
parents who afterwards intermarry : which is baflardy by our
law, though not by the ecclefiaftical. It would therefore be im-
proper to refer the trial of that queftion to* the biihop ; who,
whether the child be born before or after marriage, will be fure

to

u 1 Roll, Abr. 583, X Hob. 179.

w Co. Litt, 74. y Dyer. 79,

336

Private Book III

to return or certify him legitimate", Ability of a clerk pre-

fented *, adrmjfion^ injlitution^ and deprivatisn of a clerk, fhall alfo

be tried by certificate from the ordinary or metropolitan, bccaufe

' of thefe he is the mofl competent judge ^ : but indudion fliall be

tried by a jury, becaufe it is a matter of public notoriety °5 and

■ is likewife the corporal inveftiture of the temporal profits. Re-

fignation of a benefice may be tried in either way'^ ; but it feems

moil properly to fall within the bilhop's cognizance. 6. The

trial of all cuftoms and praclice of the courts fhall be by certifi*

cate from the proper officers of thofe courts refpedively ; and,

what return was made on a writ by the fheriff or under-ftierifF,

fhall be only tried by his own certificate*. And thus much for

thofe feveral ifTues, or matters of fad, which are proper to be

tried by certificate.

IV. A FOURTH fpecies of trial is that by witnejfes^ per tejles^
without the intervention of a jury. This is the only method of
trial known to the civil law j in which the judge is left to form
in his own breafl his fentence upon the credit of the witnefTes
examined : but it is very rarely ufed in our law, which prefers
the trial by jury before it in almoft every inflance. Save only,
that when a widow brings a writ of dower, and the tenant
pleads that the hufband is not dead ; this, being looked upon as
a dilatory plea, is, in favour of the widow and for greater ex-
pedition, allowed to be tried by witnefTes examined before the
judges: and fo, faith Finch ^, fhall no other cafe in our law.
But fir Edward Coke^ mentions fome others: as, to try whether
the tenant in a real a6lion was duly fummoned, or the validity
of a challenge to a juror : fo that Finch's obfervation mufl be
confined to the trial of direct and not collateral ifTues. And in
every cafe fir Edward Coke lays it down, that the affirmative mufl
be proved by two WitnefTes at the leafl.

V. The

z See introd. to the great charter, d'tt. d x Roll. Abr. J83.
Oxon.fuh anno. 1153. ^ 9 Rep. 31.

a See book I. ch. jr. f L. 413.

b X Inft. 6^%, Show. Pari. C, 88. g 1 Inft. tf,

Cb. 2 2. Wrongs.

337

V. The next fpecies of trial is of great antiquity, but much
difufed ; though ftill in force if the parties chufe to abide by it ;
I mean the trial by ivager of battel. This feems to have owed »
it's original to the military fpirit of our anceftors, joined to a.'
fuperftitious frame of mind: it being in the nature of an appeal •
to providence, under an apprehenlion and hope (hovt^cver pre- '
fumptuous and unwarrantable) that heaven would give the vic-
tory to him who had the right. The deciiion of fuits, by this
appeal to the God of battels, is by feme faid to have beca in-
vented by the Burgundi, one of the northern or German clans
that planted themfelves in Gaul. And it is true, that the hrfc
written injunclion of judiciary combats that we meet with, is in
the laws of Gundcbald, A. D. 501, which are preferved in the
Burgundian code. Yet it does not feem to have been merely a
local cuftom of this or that particular tribe, but to have been
the common ufage of all thofe warHke people from the earliefl:
times'". And it may alfo feem from a paflage in Velleius Pater-
culus', that the Germans, when firft they became known to the
Romans, were want to decide all contefts of right by the fword:
for when Ouintilius Varus endeavoured to introduce amono^ them
the Roman laws and m.ethod of trial, it was looked upon (iays
the hiftorian) as a " jiG'vitas incognitae difc'iplinae, nt folita arm'is
*' decerni jure ierminarentur.^^ And among the antient Goths in
Sweden we find the praclice of judiciary duels eft abliflied upon
much the fame footing as they formerly were in our own country'.

This trial was introduced into England among other Norman
cufloms by William the conqueror ; but was only ufed in three
cafes, one military, one criminal, and the third civil. The firft in
the court-martial, or court of chivalry and honour*": the fecond in
appeals of felony^, of which we fliall fpeak in the next book:
and the third upon ifTae joined in a writ of right, the laft and
Vol. III. T t mod

h Seld. of <!uels. c. «• k Co. Litt. zfii.

j l.x.c 118. 1 i Hawk. P. C. 4J.

j Stiernh. dcjure Suecn. I. i. c, -r.

5'g8 Private Book III.

moft folemn decifiori of real property. For in writs of right the
jus proprietatis, which is fi-equeruly a matter of diHiculty, is in
queftion; but other real actions bung merely queftions^of the
jus pofej/miis, which are ufually more plain and obvious, our
arreftors did not in them appeal to the decifion of providence.
Another pretext for allowing it, upon thefe final writs ot right,
was alfo for the fake of fuch claimants as might have the true
right, but yet by the death of witnefTes or other defect of evi-
dence be unable to prove it to a ju^5^ But the moft curious
reafon of all is given in the mirror "", that it is allowable upon
warrant of the combat between David for the people of Ifrael
of the one party, and Goliah for the Phiiiftines of the other
party: a reafon, which pope Nicholas I. very feriouily decides to
beinconclufive". Of battel therefore on a writ of right ° we are
now to fpcak ; and although the writ of right itfelf, and of
courfe this trial thereof, be at prefcnt difufed ; yet, as it is law
at this day, it may he matter of curiofity, at leall, to enquire
into the forms of this proceeding, as we may gather them from
antient authors''.

The laft trial by battel that v.'as joined in a civil fuit (though
there was afterwards one in the court of chivalry in the reign of
Charles the firft'^j and another tendered, but not joined, in a
writ of right upon the northern circuit in 1638) was in the thir-
teenth year of queen Elizabeth, as reported by fir James Dyer %
and was held in Tothill fields Weftminfter, " 72on Jine 7nagna
^'^ juris confultorum'perturhatione^^ faith fir Henry Spelman% who
washimfelfa witnefs of the ceremony. The form, as appears
from the authors before cited, is as follows.

When the tenant in a writ of right pleads the general ifliie,
VIZ, that he hath more right to hold, than the demandant hath

to

m c. 3. §. 13. 1534) Ycarbo?k. ap F.hv. HI. ii. Finch,

n Dec7-et. part. 2. caiif. a. qu. 5. c. zx. L. 4.ii. Dyer. 301. a Inft. 147.
o Append. N°. I. §. s q Riifliw. col!, vol. a. pavt. a. fol. ii».

p Glanv'l. /. a. c. 3. Vci. tiat. Ircv. fd. a. r 301.

N6V,.Narr.tU. Droit patent. foU aji. (eMt. s GlnJ[. 103.

Ch. 2 2. Wrongs. 5^9

to recover; and offers to prove it by the body of his champion,
which tender is accepted by the demandant; the tenant in the
firft place mull produce his champion, who, by t'hrowing down
his glove as a gage or pledge, thus wages or ftipulates battel with
the champion of the demandant ; who, by taking up the gage or
glove, ftipulates on his part to accept the challenge. The reafon
.why it is waged by champions, and not by the parties themfelves,
in civil actions, is bccaiile, if any party to the fuit dies, thefuit
muft abate and be at an end for the prefent ; and therefore no
judgment could be given for the lands in quefdon, if either of
the parties were fiain in bafcteP : and alfo that no perfon might
claim an exemption from this trial, as was allowed in criminal
cafes, where the battel was waged in perfon.

A PIECE of ground is then in due time fet out, of fixty feet
fquare, cnclofed with lifts, and on one fide a court erected for
the judges of the court of common pleas, who attend there in
their fcarlet robes ; and alfo a bai' is prepared for the learned
ferjeants at law. When the court fits, which, ought to be by
funriftng, proclamation Is made for the parties, and their cham-
pions ; who are introduced by two knights, and are drefled in a
coat of armour, v/ith red fandals, barelegged from the knee
downwards, bareheaded, and with bare arms to the elbows.
The weapons allowed them are only batons, orftaves, of an
cUlong, and a four-cornered leather target; fo that death very
feldom enfued this civil combat. In the court military indeed
they fought with fword and lance, according to Spelman and
Rufh worth ; as likevs^ife in France only villeins fought with the
, buckler and baton, gentlemen armed at all points. And upon
this, and other circumftances, thepreftdent Montefquieu " hath
with great ingenuity not only deduced the impious cuftom of
private duels upon imaginary points of honour, but hath alfo
traced the heroic madnefs of knight errantry, from the fame
original of judicial combats. But.tu proceed.

Tt2 When

t Co. Litt. jp4. Dyvcrjite dcs courts. 304. u Sp. L. b. jS. c, as. si.

540 Private Book 111.

When the champions, thus armed with batons, arrive within
the lids or place of combat, the champion of the tenant then
takes his adverlary by the hand, and makes oath that the tene-
ments in difpute are not the right of the demandant ; and the
champion of the demandant, then taking the other by the hand,
fwears in the fame manner that they are ; fo that each champion
is, or ought to be, thoroughly perfuaded of the truth of the caufe
he fights for. Next an oath againft forcery and enchantment is
to be taken by both the champions, in this or a fimilar form ;
^' hear this, yejuftices, that I have this day neither eat, drank,,
'' nor have upon me, neither bone, ftone, ne grafs -, nor any in-
*' chantment, forcery, or witchcraft, w^hereby thelaw of God
^' maybe abafed, or the law of the devil exalted. So help me
^^« God and his faints,'* ' '

The battel is thus begun, and the combltants are bound to
fight till the ftars appear in the evening : and, if the champion
of the tenant can defend himfelftill the ftars appear, the tenant
fhall prevail in his caufe ; for it is fufficient for him to maintain
Lis ground, and make it a drawn battel, he being already in
poiTeffion ; but, if victory declares itfelf for either party, for him
is judgment finally given. This victory may arife, from the
death of either of the champions : which indeed hath rarely
happened ; the whole ceremony, to fay the truth, bearing a near
refemblance to certain rural athletic diverfions, which are pro-
bably derived from this original. Or victory is obtained, if either
champion proves recreant, that is, yields, and pronounces the
iiorribk Vv^ord of craven ; a word of difgrace and obloquy, rather
than of any determinate meaning. But a horrible word it indeed
4S to the vanquifhed champion : fmce, as a punifhment to 1 im
for forfeiting the land of his principal by pronouncing that
fliameful word, he is condemned, as a recreant, am'ittere libe^
fain legem, that is, to become infamous and not be accounted
fiber el legalh homo j being fuppofed by the event to be proved

forfwornj

Ch. 2 2.

Wrongs.

341

forfvvorn, and therefore never be put upon a jury or admitted
as a witnefs in any caufe.

This is the form of a trial by battel ; a trial which the te-
nant or defendant in a writ of right, has it in his election at
this day to demand ; and which was the only decifion of fuch
writ of right after the conqueft, till Henry the fecond by con-
fent ofparhament introduced the ^r^;zJ ^Jfifi^ t 3- peculiar fpecies
of trial by jury, in concurrence therewith; giving the tenant
his choice of either the one or the other. Which example, of
difcountenancing thefe judicial combats, was imitated about a
century afterwards in France, by an edict of Louis the pious,
A.D. 1260, and Ibon after by the reft of Europe. The efta-
blilhment of this alternative, Glanvil, chief juftice to Henry
the fecond, and probably his advifer herein, confiders as a mofl
noble improvement, as in fad it was, of the law''.

VI. A SIXTH fpecies of trial is by wager of law^ vadiatio
legis; as the foregoing is called zoager of battel, vadiatio duelli :
becaufe, as in the former cafe the defendant gave a pledge, gage,
or vadium, to try the caufe by battel ; fo here he was to put in
fureties or vadios, that at fuch a day he will make his law, that
is, take the benefit which the law has allowed him^. For our
anceftors confidered, that there were many cafes where an inno-
cent man, of good credit, might be overborne by a multitude
of falfe witnefTes ; and therefore eftablilhed this fpecies of trial,
by the oath of the defendant himfelf: for if he will abfolutely
fwear himfelf not chargeable, and appears to be a perfon of re-
putation,

w Append. NO. I. §. 6.

X Ejl autem inagna ajjlfa regale qusddam
ieneficium, clemcntia prhu'iph, de coufdlo pro-
ccnim, populis indultum ; guo vitae hominum,
et flatus iiitegr'ttati taiii falubrhcr confulitnr, .
tit, rci'inendo quod quh pQjJidct in libera te'ne-
tnento foil, duelli cafum dcclinare poffint homi-
7ies amhiguiim. Ac per hoc coitliiigit, iiifpera-
tae et praematarac mortis ultinima evader cjup-

pUcimn, vclfaltem perennis infamiae oppro'
brium illhts infefti et inverceundi verbi, quod
in ore xiBi turpiter /mat confecutivtim. Ex
aequitate item maxima prodita eft legalis ifta
iiifiitutio. Jus er.im, qtiod poft multas et Ion-
gas dilationes vix evincittir per duellum, per
beneficium iftius conftittitiotiis conimoJltts tt ac-
celeretitis cxpeditur. (I, i, c, t.)
y Co. Lit. 2Pi.

5A2 Private Book III.

putation, he {hall go free and for ever actjuitted of the debt, or
other caufe of action.

This method of ^rial is not only to be found in the codes
of almoft all the northern nations, that broke in upon the Ro-
man empire and eltabhfhed petty kingdoms upon its ruins 'j but
it's original may alfo be traced as far back as the Mofaical law.
« If a man deliver untq his neighbour an afs, or an ox, or a
«^ fheep, or any beaft, to keep ; and it die, or be hurt or dri-
" ven away, no man feeing it ; then fliall an oath, of the Lord be
« between them both, that he hath not put his hand unto his
<« neighbour's goods ; and the owner of it fhall accept thereof,
« and he fhall not make it good'." We fhall likewife be able to
difcern a manifeft refemblance, between this fpecies of trial, and
the canonical purgation of the popifh clergy, when accufed of any
capital crime. The defendant or perfon accufed was in both cafes
to make oath of his own innocence, and to produce a certain
Bumber of compurgators, who fwore they beheved his oath.
Somewhat fimilar alfo to this is t\iQ facra?nentiim decifw?iis, or the
voluntary and decifiveoath of the civil law''j where one of the
parties to the fuit, not being able to prove his charge, offers to
refer the deciiion of the caufe to the oath of his adverfary :
which the adverfary was bound to accept, or tender the fame
propofal back again j otherwife the whole was taken as confeffed
by him. But, though a cuftom fomewhat hmilar to this pre-
vailed formerly in the city of London% yet in general the Eng-
lifh law does not thus, like the civil, reduce the defendant, in
cafe he is in the wrong, to the dilemma of either confeffion or
perjury : but is indeed fo tender of permitting the oath to be
taken, even upon the defendant's own requeft, that it allows it
only in a very few cafes ; and in thofe it has alfo devifed other
collateral remedies for the party injured, in which the defendant
is excluded from his wager of law.

z Sp. L. b. j8. c. I?. Sticrnhook ilejure h Cod. 4, i. xi.

Sueomm. 1. 1. c. 9. Feud, I. i. i. 4. i=- iS. 0 Bro. /lir. t. ley S''S"'' 7^«

a Exod. XKii. 10.

Ch. 2 2. Wrongs.

343

The mannerof wriging and making hw is this. He that has
waged, or given fecurity, to make his law, brings with him into
court eleven of his neighbours: a cuftom, which we find par-
ticularly defcribcd Co exrly as in the league between Alfred and
Guthrun the Dane*^; for by the old Saxon conftitution every
man's credit in courts of law depended upon the opinion which
his neighbours had of his veracity. The defendant then, Hand-
ing at the end of the bar, is admonifhed by the judges of the
nature and danger of a faife oath^ And if he Hill perfifts, he
is to repeat this or the like oath: " hear this, ye jufticcs, that
" I do not owe unto Richard Jones the fum of ten pounds, nor
" any penny thereof, in manner and form as the faid llichard
" hath declared againft me. So help me God.'* And thereupon
his eleven neighbours or compurgators Ihall avow upon their
oaths, that they believe in their confciences that he faith the
truth ; fo that himfclf mufl be fworn de jidelitate^ and the ele-
ven de credulitate^. It is held indeed by later authorities^ that
fewer than eleven compurgators will do: but fir Edward Coke is
pofitive that there muft be this number; and his opinion not
only feem.s founded upon better authority, but alfo upon better
reafon : for, as wager of law is equivalent to a verdict in the
defendant's favour, it ought to be edablitlied by the fame or
equal teftimony, namely by the oath of twelve men. And fo
indeed Glanvil exprefles it*", '•^ jurabit duGdecima mami :^^ and in
9 Hen. III.' when a defendant in an action of debt waged his
law, it was adjudged by the court " quod defeyidat fe duodeclma
" mamiy Thus too, in an author of the age of Edward the
firft '^, we read, " adjudicahitur reus ad legem fuam duodecima manuJ^'
And the antient treatife, entitled dyverfiie des courts, exprefsly
confirms fir Edward Coke's opinion '.

It

d c.np. 3. Wilk. LL. An^l Sax. i FItzh. Abr. t. ky. 78.

e Salk. CSi. k Hcngham msgtia. c. j.

f Co. Litt. J 9 J. , ' I Jl cosjieiit tver' ou luy x'l maynz (fejurer

jf z Ventr. 171. one hy, fc. que ilz entente en lour confdens

h I. I. c. 3. ^ue il dijop voter, (fal, joC. edit. li^^-J

J44 Private Book IIL

I T muft be however obferved, that fo long as the cuflom
continued of producing the fe^a, the fu'if, or witnefTes to give
probability to the plaintiff's demand, (of which we fpoke in a for°
mer chapter) the defendant was not put to wage his law, unlefs the
fe8a was firft produced, and their teftimony was found confiftent. -
To this purpofe fpeaks magna carta, c. 28. *' Nullus ballhus de
*' caetero p07iat al'iquem ad legem manijeftam^^ (that is, wager of
battel) '■'^ nee ad jur anient um^^ (that is, wager of law) '■^ fimpUci
" hqiiela fua^^ (that is, merely by his count or declaration) "j/zw
" tejlihus f .^.eUhus ad hoc induclis^^ Vv^hich Fleta thus explains™:
*<^ fetens feci am froduxerit^ et Concordes inveniantur, tunc reus
*' fcterit vadiare legem fiiam contra petentem et contra fedam Juani
*' prolatam ; fed fi fefla variabilis inveniatur, extimc non tenebitur
" legem vadiare contra feci a?n illamJ" It is true indeed, that Fleti
€xprefsly limits the number of compurgators to be only double
to that of the fed a produced; " ut fi dxios vel tres tefles pro-
" duxerit ad probandum, oportet quod defenfio fiat per quatour vel
*' per fex ; ita quod pro qiwUbet tefte duos producat juratores, if que
" i?^ duodecim:" fo that accordina: to this doctrine the eleven
compurgators were only to be produced, but not all of them
^^ fworn^ unlefs they^^^ confiftcd affix. But, though this might
pofiibly be the rule till the production of the /ecla was generally
difufed, fince that time the dufidecima manus feems to have been
generally required".

I N the old Swedifh or Gothic conftitution, wager of law wis
not only permitted, as it ftill is in crimi?2al cafes, unlefs the fact
be extremely clear againft the prifoner° ; but Was alfo abfolutely
required, in many civil cafes: which an author of their own''
very juftly charges as being the fource of frequent perjury. This
he tells us, was owing to thepopifh ecclefiaftics, who introduced
this method of purgation from their canon law ; and, having
fown a plentiful crop of oaths in all judicial proceedings, reaped

after^

n» /. s. C. 6-j. o Mod. Un. Hlft. xxxli'i. ii.

n Uro. Abr. t, ley ^ager, p, p Sliernhook dejure Suconum. /.i.e. 9,

Ch. 2 2. Wrongs. 345

afterwards an ample harveft of perjuries : for perjuries were
punifhed iu part by pecuniary fines, payable to the coffers of the
church. But with us in England wager of law is never required ;
and-is then only admitted, where an adion is brought upon fuch
matters as may be fuppofed to be privately tranfaded between
the parties, and wherein the defendant may be prefumed to have
made fatisfaclion without being able to prove it. Therefore it is
only in actions of debt upon fimple contrad, or for an amerce-
ment, in adions of detinue, and of account, where the deUt
may have been paid, the goods reftored, or the account ballan-
ced, without any evidence of either ; it is only in thefe actions,
I fay, that the defendant is admitted to wage his law'': fo that
wager of law lieth not, when there is any fpecialty, as a bond
or deed, to charge the defendant; for that would be cancelled
iffatisfied; but when the debt growcth by word only. Nor
doth it lie in an action of debt, for arrears of an account, fettled
by auditors in a former adion^ And by fuch wager of law (when
admitted) the plaintiff is perpetually barred ; for the law, in the
fimplicity of the antient times, prefumed that no one would for-
fwear himfelf, for any wordly thing *. Wager of law however
lieth in a real action, where the tenant alleges he was not legally
fummoned to appear, as well as in mere perfonal contracts ^

A M A N outlawed, attainted for falfe verdi<5t, or for confpi-
racy or perjury, or otherwife become infamous, as by pronoun-
cing the horrible word in a trial by battel, fhall not be permitted
to wage his law. Neither fhall an infant under the age of twenty
one, for he cannot be admitted to his oath ; and therefore, on
the other hand, the courfe of juftice fhall flow equally, and the
defendant, where an. infant is plaintiff, fhall not wage his law.
But a feme- covert, when joined with her hufband, may be ad-
mitted to wage her law : and an alien fhall do it in his own
language ".

Vol. III. Uu It

q Co. Litt. asj. t Finch. L. 413.

r 10 Rep. 103. u Co. Litt. aj>i.

$ Co. Litt. lOSy^

I

34^

Private Book Hi

I T is moreover a rule, that where a man is compellable by
law to do any thing, whereby he becomes creditor to another,
the defendant in that cafe fhall not be admitted to wage his law :
for then it would be in the power of any bad man to run in
debt fird, againft the incHnations of his creditors, and afterwards
to fwear it away.- But where the plaintiff hath given voluntary
credit to the defendant, there he may wage his law ; for, by
giving him fuch credit, the plaintiff has hlmfelf borne teftimony
that he is one whofe character may be trufted. Upon this prin-
ciple it is, that in an action of debt againft a prifoner by a gaoler
for his victuals, the defendant fhall not wage his law: for the
gaoler cannot refufe the prifoner, and ought not to fuffer him to
periih for want of fuftenance. But othcrwife it is for the board
or diet of a man at liberty. In an action of debt bi^ought by an
attorney lor his fees, the defendant cannot wage his law, becaufe
the plaintiff is compellable to be his attorney. And fo, if a
fervant lie retained according to the ftatute of labourers, 5 Eliz,
c. 4. which obliges all fingle perfons of a certain age, and not
having oth^r viiible means of livelyhood, to go out to fervice ; in
an aftion of debt for the wages of fuch a fervant, the mafter
Ihall not wage his law, becaufe the plaintiff was compellable to
ferve. But it had been otherwife, had the hiring been by fpe-
cial contradj and not according to the ftatute'".

In no cafe where a contempt, trefpafs deceit, or .any injury
with force is alleged againft the defendant, is he permitted to
wage his law'^: for it is impoilible to prefume he has fatisfied
the plaintiff his demand in fuch cafes, where damages are un-
certain and left to be afl'effed by a jury. Nor will the law truft
the defendant with an oath to difcharge hlmfelf, where the pri-
vate injury is coupled as it were with a public crime, t:hat of
force and violence ; which would be equivalent to the purgation
oath of the civil law, which ours has fo juftly rejeftcd.

EXSCUTOILS
w Co. Litt. ipy, s J]/id, Raym. i8(7.

Ch. 22. Wrong s. 347

Executors and admlniftrators, when charged for the debt
of the deceafcd, Ihall not be admitted to wage their law'': for '
no man can with a fafe confcience wage law of another man's
contra6t ; that is, fwear that he never entered into it, or at leaft
that he privately difchargcd it. The king alfo has his preroga-
tive ; for as all wager of law imports a reflection on the plaintiff
for diflionefty, therefore there fliall be no fuch wager on actions
brought by him^. And this prerogative extends and is commu-
nicated to his debtor and accomptant ; for, on a writ of quo mi?ius
in the exchequer for a debt on liuiple contracl, the defendant is
not allowed to wage his law*.

Thu s the wager of law was never permitted, but where the
defendant bore a fair andunreproachable character; audit alfo
was confined to fuch cafes where a debt might be fuppofed to be
difcharged, or fatisfa^lion made in private, without any witnef-
fes to atteft it : and many other prudential reibiclions accom-
mnied this indulgence. But at length it was confidered, that
(even under all it's reftriclions) it threw too great a temptation
in the M'ay of indigent or profligate men : and therefore by de-
grees new remedies were devifed, and new forms of a(5tion were
introduced, wherein no defendant is at liberty to wage his law.
So that now no plaintiff need at all apprehend any danger from
the hardinefs of his debtor's confcience, unlefs he voluntarily-
chufes to rely on his adverfary's veracity, by bringing an obfoiete,
inftead of a modern, action. Therefore one fhall hardly hear at
prefent of an action of debt brought upon a fimple contract : that
being fupplied by an action 6f trefpafs on the cafe for the breach
of a promife or affmipfit ; wherein, though the fpecilic debt can-
not be recovered, yet damages may, equivalent to the fpecific
debt. And, this being an action of trefpafs, qo law can be waged
therein. So, inilead of an action of (i^///i«^ to recover the very-
thing detained, an action of trefpafs on the cafe in trover and

U u 2 convcrfion

y Finch. L. 414. a Co. I.kt, 195.

I /i*/. 41s.

348

RiVATE Book III,

^1

converfion is ulually brought ; wherein, though the horfe or other
fpecific chattel cannot be had, yet the defendant fhall pay da-
mages for the converfion, equal to the value of the chattel; and
for this trefpafs alfo no "vrager of law is allowed. In the room
tblU) Y^ of actions of account -ai bill in equity is ufually filed: whereio,
^t^^"^^' though the defendant anfwers upon his oath, yet fuch oath is
not conclufive to the plaintiff; but he may prove every article
by other evidence, in contradiction to what the defendant has
fworn. So that wager of law is quite out of ufe, being avoided
by the mode of bringing the action : but flill it is not out of force.
And therefore, when a new flatute jnfiifts a penalty, and gives
an action of debt for recovering it, it is ufual to add, in which
no wager of law fhall be allowed: otherwife an hardy delinquent
might efcape any penalty of the law, by fwearing he had never
incurred, or elfe had difcharged it.

These fix fpecies of trials, that we have confidered in the
prefent chapter, are only had in certain fpecial and eccentrical
cafes ; where the trial by the country, -per fais, or by jury,
■would not be fo proper or effetl:ual. In the next chapter we
ihall confider at large the nature of that principal criterion of
truth in the law of England.

Ch. 23. Wrongs. 349

Chapter the twenty third.
Of the trial by jury.

THE fubjecl of our next enquiries will be the nature and
method of the trial by jury ; called alfo the trial per pais,
or by the country. A trial that hath been ufed time out of mind
in this nation, and feems to have been co-eval with the firft
civil £rovernment thereof. Some authors have endeavoured to
trace the original of juries up as high as the Britons themfelves,
the firft inhabitants of our illand ; but certain it is, that they
were in ufe among the earliell Saxon colonies, their inftitution
being afcribed by bifliop Nicolfon* to Woden himfelf, their great
legiflator and captain. Hence it is, that we may find traces of
juries in the laws of all thofe nations which adopted the feo-
dal fyftem, as in Germany, France, and Italy j who had all of
them a tribunal compofed of twelve good men and true, " bom
«' homines" ufually the vafals or tenants of the lord, being the
equals or peers of the parties litigant : and, as the lord's vafals
judged each other in the lord's courts, fo the king's vafals, or
the lord's themfelves, "judged each other in the king's court.** In
England we find aflual mention of them fo early as the laws of
king Ethelred, and that not as a new invention^ Stiernhook'*

afcribes

a iejure Saxonum, f. u. c Wilk. LL. Angl. Sax, 117.

h Sp. L. b. 30, c. x8. Ca^ituJ, Lui. ft'f Adejure Suesnum. U i. f.4.

A, D. 819. c. i.

250 Private Book III.

afcribes the invention of the jury, which in the Teutonic lan-
guages is denominated netnbda, to Regner, king of Sweden and
Denmark, who was co-temporary with our king Egbert. Juft as
we are apt to impute the invention of this, and fome other pieces
of juridical polity, to the fuperior genius of Alfred the great ; to
whom, on account of his having done much, it is ufual to at-
tribute every thing : and as the tradition of antient Greece placed
to the account of their one Hercules whatever atchievement was
performed fuperior to the ordinary prowefs of mankind. Whereas
the truth feems to be,that this tribunal was univerfally eftablilhed
among all the northern nations, and fo interwoven in their very
conftitution, that the earlieft accounts of the one give us alfo
fome traces of the other. It's cllablifhment however and ufe, in
this ifland, of what date foever it be, though for a time greatly
impaired and fhaken by the introduction of the Norman trial by
battel, was always fo highly efleemed and valued by the people,
that no conqueil, no change of government, could ever prevail to
abolifh it. In magna carta it is more than once infifled on as the
principal bulwark of our liberties; but efpecially by chap. 29.
that no freeman fliall be hurt in either his perfon or property,
*' niji per legale judicimn parimn Juorum vel per legem terrae^*
A privilege which is couched in almofl the farn^ words with that
of the emperor Conrad, two hundred years before^ " Jie^fwbe-
" nejicium fuum perdat, niJi fecundum confuetudinem antecejjorum
*' ncjlroriim et per judicium par turn fuorum.^* And it was ever
efteemed, in all countries, a privilege of the higheft and moH
beneficial nature.

But I will not mifpend the reader's time in fruitlefs enco-
miums on this method of trial : but Ihall proceed to the diffec-
tion and examination of it in all it's j^rts, from whence indeed
it*s highefl encomium will arife ; fince, the more it is fearched
into and understood, the more it is fure to be valued. And this
is a fpecies of knowlege n\oft abfolutely necelTary for every gen-
tleman in the kingdom : as well becaufe he may be frequently

called

e LL. Lor.gol. I. 3. t. 8. /. 4.'

Ch. 23.

Wrongs.

351

called upon to determine in this capacity the rights of others,
his fellow-fubj eels; as becaufe his own property, his liberty,
and his life, depend upon maintaining, in it's legal force, the
conflitutional trial by jury.

Trials by jury in civil caufes are of two kinds ; extraordi'
nary, and ordinary » The extraordinary I fhall only briefly hint
at, and confine the main of my obfervation to that which is more
ufual and ordinary.

The firftfpecies of extraordinary trial by jury is that of the
grand affife, which was inflituted by king Henry the fecond in
parliament, as was mentioned in the preceding chapter, by way
of alternative offered to the choice of the tenant or defendant in
a writ of right, inflead of the barbarous and unchriflian cufloni
of duelling. For this purpofe a writ de magna ajjifa eligenda is
directed to the fheriff ^, to return four. knights, who are to eleA
and chufe twelve others to be joined with them, in tha manner
mentioned by Glanvil" ; who, having probably advifed the mea-
fure itfelf, is more than ufually copious in defcribing it : and
thefe, all together, form the grand- allife, or great jury, which
is to try the matter of right, and muft donfifl of fixteen ju-
rors'*.

Another fpecies of extraordinary juries, is the jury to try an
attaint; which is a procefs commenced againfl a formerjury, for
bringing in a falfe verdid ; of which we fhall fpeak more largely
in a fubfequent chapter. At prefent I fhall only obferve, that
this jury is to confifl of twenty four of the beft men in the
county, who are called the grand jury in the attaint, to dif-
tinguifli them from the firfl or fetit jury ; and thefe are to hear
and try the goodnefs of the former verdid.

s F. N. B. 4.

g I. ». C. II— »I,

k.

With

h Finch. L, 41a. i Leon. 30|.

352 Private Book III.

m

With regard to the ordinary trial by jury in civil cafes, I
iliall purfue the fame method in confidering it, that I fet out
with in explaining the nature of profecuting adions in general,
z)/2r. by following the order and courfe of the proceedings them-
felves, as the moll clear and perfpicuous way of treating it.

When therefore an iiTue is joined, by thefe words, " and
*' this the faid A prays may be enquired of by the country/* or,
" and of this he puts himfelf upon the country, and the faid B
" does the like," the court awards a writ of venire facias upon
the roll or record, commanding the fherifF " that he caufe to
*' come here on fuch a day, twelve free and lawful men, liheros
«< et legates homines^ of the body of his county, by whom the
*« truth of the matter may be better known, and who are nei-
" ther of kin to the aforefaid A, nor the aforefaid B, to recog-
" nize the truth of the iflue between the faid parties*.'* And
fuch writ is accordingly ilfued to the fherifF.

Thus the caufe ftands ready for a trial at the bar of the court
itfelf : for all trials were there antiently had, in actions which
were there firll commenced ; which never happened but in mat-
ters of weight and confequence, all trifling fuits'being ended in
the court-baron, hundred, or county courts : and all caufes of
great importance or difficulty are flill ufually retained upon mo-
tion, to be tried at the bar in the fuperior courts. But when
the ufage began, to bring actions of any trifling value in the
courts of Weftminfler-hall, it was found to be an intolerable
burthen to compel the parties, witnefTes, and jurors, to come
from Weftmorland perhaps or Cornwall, to try an action of af-
fault at Weftminfter. Therefore the legiflature took into confl-
deration, that the king's juftices came ufually twice in the year
into tl^e feveral counties, ad capendas -ajftfas, to take or try writs
ofaffife, of mort d* ancejior, novel dijfeifm, nufance, and the like.
The form of which writs we may remeaiber was flated to be,

that

i Append. N°. II. f . 4.

Ch. 23. W.R O N G S. 353

that they commanded the fherifF to fummon an afiife or jury,
and go to view the land in qucftion; and then to have the faid
jury ready at the next coming of the juflices of allife (together
with the parties) to recognize and determine the difTcifm, or
other injury complained of. As therefore thefe judges were
ready in the country to adminifter juftice in real adions of aflife
the legiflature thought proper to refer other matters in iffue to be
alfo determined before them, whether of a mixed orperfonal kind.
And therefore it wasenaded byftatute Weflm. 2. 13 Edw. I.e. 30.
that a claufe cA n'lfi prius fliould be infcrted in all the aforefaid
writs of venire facias ; that is, " that the flierifF fliould caufe the
"jurors to come to Weftminfter (or wherever the king's court
" fhould be held) on fuch a day in ealler and michaelmas terms j
*' n'lfi prlus^ unlels before that day, the juftiCes affigned to take
*' affiles fliall come into his faid county." By virtue of which,
the fherift' returned his jurors to the court of the juflices of af-
life, which was fure to be held in the vacation before eafter and
michaelmas terms j and there die trial v/as had.

A N inconvenience attended this remedy: principally becaufe,
as the flieriff made no return of the jury to the court at Weft-
minfter, the parties were ignorant who they were till they came
upon the trial, and therefore were not ready u'ith their challenges
or exceptions. For this reafon by the ftatute 42 Edw. III. c. 1 1.
Ihe method of trials by nifiprius was altered ; and it was enacted
that no inquefts (except of affife and gaol-delivery) fhould be
taken by writ of nift priits, till after the fherifF had returned the
names of the jurors to the court above. So that now the claufe
of nifiprius^ is left out of the writ of venire facias, which is the
flieriff 's warrant to warn the jury ; and is infer ted in another
part of the proceedings, as we fliall fee prefently.

For now the courfe is, to make the fiieriff's venire returnable

on the laft return of the fame term wherein iiTue is joined, viz.

Hilary or trinity terms; which, from the making up of the ilTues

therein, are ufually called iffuahle terms. And he returns the

Vol. III. W w names

J 54 Private Book III,

names of the jurors in a paiiel (a little pane, or oblong piece of
parchment) annexed to the writ. This jury is not fummoned,
and therefore, not appearing at the day, mull unavoidably make
default. For which reafon a compulfive prccefs is now awarded
agalnft the jurors, called in the common pleas a writ of habeas
corpora juratorum, and in the king's bench a d'lfiringas^ com-
manding the fheriff to have their bodies, or to diilrein them by
their lands and goods, that they may appear upon the day ap-
pointed. The entry therefore on the roll or record is", "■ that
" the jury is refpited, through defed of the jurors, till the iirll
" day of the next term, then to appear at Weftrainfter ; unlefs
" before that time, viz. on Wednefday the fourth of March,
" thcjuftices of our lord the king, appointed to take affifcs in
" that county, Ihall have come to Oxford, that is, to the place
*' affigned for holding the affifes. Therefore the IherifFis com-
*' manded to have their bodies at Weftminfter on the faid firft
" day of next term, or before the faidjuftices of affife, if before
*' that time they come to Oxford ; viz. on the fourth of March
" aforefaid." And, as thejudges are fure to come and open the
circuit commiflions on the day pacntioned in the writ, the flieriff
returns and fummons this jury to appear at the aihfes, and there
the trial is had before the juftices of ajfife and riifiprius: among
whom (as hath been faid ') are ufually two of the judges of the
courts at Weftminfter, the whole kingdom being divided into fix;
circuits for this purpofe. And thus we may obferve that the trial
of common iffues, at ;^////rMj-, was in it's original only a colla-
teral incident to the original bufinefs of the juilices of affife ;
though now, by the various revolutions of practice, it is become
their principal employment : hardly any thing remaining in ufe
of the real ajjifes, but the name.

I F the flierifF be not an indifferent perfon : as if he be a
party in the fuit, or be related by either blood or affinity to either
of the parties, he is not then trufled to return the jury; but the
venii e fliall be direded to the coroners, who in this, as in many

other

k Append. N". II. §,4. 1 Sec pag. 58.

Ch. 23. Wrongs. ^SS

other inilances, are the fubftitutes of the flierlff, to execute pro-
cefs when he is deemed an improper peribn. If any exception
lies to the coroners, the veiiire ihall be directed to two clerks of
the court, or two perfons of the county named by the court and
fworn"". And thefe two. who are called ^///^-rj, or electors, fhall
indifferently name the jury, and their return is final.

Let us now paufe awhile, and obferve (with fir Mathew
Hale") in thefe firft preparatory ftages of the trial, how admi-
rably this conflitution is adapted and framed for the inveftigation
of truth, beyond any other method of trial in the world. For,
firft the per/on refurning the jurors is a man of fomc fortune
and confequence ; that fo he may be not only the lefs tempted
to commit wilful errors, but likewife be reiponlible for the faults
of either himfeif or his officers : and he is alfo bound by the
obligation of an oath faithfully to execute his duty. Next, as to
the time cf their return : the pannel is returned to the court upon
the original venire, and the jurors are to be fummoned and
brought in many weeks afterwards to the trial, whereby the par-
ties may have notice of the jurors, and of their fuiHciency or
infuiSciency, characters, conne<5tions, and relations, that fo they
may be challenged upon jufl caufe; while at the fame time by
means of the compulfory procefs (of difiringas or habeas corpora)
the caufe is not like to be retarded through defed of jurors. Third-
ly, as to the place of their appearance: which in caufes of weight
and confequence is at the bar of the court ; but in ordinary cafes
at the allifes, held in the county where the caufe of action arifes,
and the witneffes and jurors live: a provifion mofl excellently
calculated for the faving of expenfe to the parties. For, though
the preparation of the caufes in point of pleading is tranfacted
at Weftmioftei> whereby the order and uniformity of proceeding
is preferved throughout the kingdom, and multiplicity of forms
is prevented; yet this is no great charge or trouble, one attorney
being able to tranfaft the buiinefs of forty clients. But the
troublefome and moil expenlive attendance is that of jurors and

AV w 2 witneffes

m Fort^c. ie Laud. LL. c. z;. n Hift. C. L. c. u.

35<5 P R I V A T E Book III.

witnefTes at the trial ; which therefore is brought home to them, .
in the country where moft of them inhabit. Fourthly, the -per*
Jons before whom they are to appear, and before whom the trial
is to be held, are the judges of the fuperior court, if it be a
trial at bar ; or the judges of ailife, delegated from the courts
at Weftminfter by the king, if the trial be held in the country :
perfons, whofe learning and dignity fecure their jurifdiclion from-
contempt, and the novelty and very parade of whofe appearance
'have no fmall influence upon the multitude. The very point of
their being (trangers in the county is of infinite fervicc, in pre- -
venting thole factions and parties, which would intrude in every
caufe of moment, were it tried only before perfons refident on
thefpot, asjuftices of the peace, and the like. And, the bet-
ter to remove all fufpicion of partiality, it was wifely provided
by the flatutes 4Edw. III. c. 2. 8 Ric. II. c. 2. and 33 Hen. VIII.
c. 24. that no judge of aflife fhould hold pleas in any county
wherein he was born or inhabits. And, as this conltitution pre-
vents party and faction from intermingling in the trial of right,
fo it keeps both the rule and the adminiftration of the laws uni-
form. Thefejuftices, though thus varied and Ihifted at every
afiifes, are all fworn to the fame laws, have had the fame edu-
cation, havepurfued the fame ftudies, converfe andconfult to-
gether, communicate their deciiions and refolutions, and prefide
in thofe courts which are mutually coiineded and their judg-
ments blended together, as they arc interchangeably courts of
appeal or advice to each other. And hence their adminiftration
of juftice, and conduct of trials, are confonant and uniform ;
whereby that confulion and contrariety are avoided, which would
naturally arife from a variety of uncommunicating judges, or
from any provincial eftablifhment. But let us now return to the
affifes.

When the general day of trials is fixed, the.frlaintifF or his
attorney muft bringdown the record to the aflifes, and enter it
with the proper officer, in order to it's being called on in courfe.
If it be not fo entered, it cannot be tried ; therefore it is in the

plaintiff's

Ch. 23. Wrongs. 357

plaintiff's bread to delay any trial by not carrying down the re-
cord : unlefs the defendant, being fearful of fuch neglect in the
plaintiff, and willing to difcharge himfelf from the adion, xv^U.
himfelf undertake to bring on the trial, giving proper notice to
the plaintitT. Which proceeding is called the trial hy provifo'^
byreafon of the claufe then inferted in the fheriff's w?//>^, viz.
" provifo^ provided that if two writs come to your hands, (that
'" is one from the plaintiff and another from the defendant) you
** fhall execute only one of them." But this pra(5lifc begins to
bedifufed, lince the flatute 14 Geo. II. c. 17. which enads, that
if, after iHue joined, the caufe is not carried down to be tried
according to the courfe of the court, the plaintiff fhall be ef-
teemed to be nonfuited, and judgment fhall be given for the
defendant as in cafe of a nonfuit. In cafe the plaintiff intends
to try the caufe, he is bound to give the defendant (if he lives
within forty miles of London) eight days notice of trial ; and, if
he lives at a greater diftance, then fourteen days notice, in order
to prevent furprize : and if the plaintiff then changes his mind,
and does not countermand the notice fix days before the trial,
he fhall be Hable to pay cofls to the defendant for not proceed-
ing to trial, by the fame lafl mentioned flatute. The defendant
however, or plaintiff, may, upon good caufe fh'ewn to the court
above, as upon abfence or ficknefsof a material witnefs, obtain
leave upon motion to defer the trial of the caufe till the next
aflifes.

B u T we will now fuppofe all previous fleps to be regularly
fettled, and the caufe to be called on in court. The record is
thenhanded to the judge, to perufe and obferve the pleadings,
and what iffues the parties are to maintain and prove, while the
jury is called and fworn. To this end the fheriff returns his
compulfive pro?efs, the writ o^ habeas corpora^ ov d'lftiingas^ with
the panel of jurors annexed, to the judges officer in court. The
jurors contained in the panel are either /pecial or commo?2 jurors.
Special juries were originally introduced in trials at bar, when
the caufes were of too great nicety for the difcuflion of ordinary

free-

358 Private Book III.

freeholders; or where thefherlffwas fiifpecled of partiality, the*
not upon fuch apparent caufe, as to warrant an exception to him.
He is in fuch cafes, upon motion in court and a rule granted
thereupon, to attend the prothonotary or other proper officer
with his freeholder's book; and the officer is to take indifl'ercntly
forty eight of the principal freeholders in the prefence of the
attornies on both lides ; who are each of them to firike, off
twelve, and the remaining twenty four are returned upon the
panel. By the ftatute 3 Geo. II. c. 25. either party is intitled
upon motion to have a ipecial jury flruck upon the trial of any
iffue, as well at the affifes as at bar ; he paying the extraordinary
expenfc, unlefs the judge will certify (in purfuance of the fta-
tute 24 Geo. II. c. 18.) that the caufe required fuch fpecialjury.

A COMMON jury is one returned by the fheriff according to
the direclions of the ftatute 3 Geo. II. c. 25. which appoints,
that the fheriff fliall not return a feparate panel for every feparate
caufe, as formerly ; but one and the fame panel for every caufe
to be tried at the fame affifes, containing not lefs than forty
eight, nor more than feventy two, jurors: and that their names,
being written on tickets, fhall be put into a box or glafs ; and
when each caufe is called, twelve of thefe perfons, whofe names
fhall be firll drawn out of the box, fhall be fworn upon the jury,
unlefs abfent, challenged, or excufed; and unlefs a previous view
of the lands, or tenements, or other matters in queftion, fliall
have been thought neceffary by the court : in which cafe fix or
more of the jurors returned, to be agreed on by the parties, or
named by a judge or other proper officer of the court, fhall be
appointed to take fuch view ; and then fuch of the jury as have
appeared upon the view (if any°) fliall be fvvorn on the inqueft
previous to any other jurors. Thefe ads are well calculated to
reftrain any fufpicion of partiaHty in the fiieriff,or any tampering
with the jurors v/hen returned.

As

o 4 Burr, 251.

Ch. 23. Wrongs. 355

A s the jurors appear, when called, they fhall be fworn, un-
lefs challenged by either party. Challenges are of two forts ;
challenges to the array, and challenges to the polls,

Challengf. s to the array are at once an exception to the k^Spizx^
whole panel, in which the jury are arrayed or fet in order by the
flieriff in his return ; and they may be made upon account of
p;\rtiality or fome default in the fherifF, or his under-officer who
arrayed ihe panel. And, generally fpeaking, the fame reafons
that before the awarding the venire were fuiiicient to have di-
rected it to the coroners or elifors, will be alfo fufficient to quaili
the array, when made by a perfon or officer of whofe partiality
there is any tolerable ground of fufpicion. Alfo, though there
be no perfonal objecfion againil the fiieriff, yet if he arrays the
panel at the nomination, or under the direction of either party,
this is good caufe of challenge to the array. Formerly, if a lord
of parliament had a caufe to be tried, and no knight was return-
ed upon the jury, it was a caufe of challenge to the array: but
an unexne(rJ:edufe having been made of this dormant privilege by a
fpiritual lord^, (though lis title to fuch privilege was very doubt-
ful'') it was aboliflied by ftatute 24 Geo. II. c. 18. Alfo, by the
policy of the antient law, the jury v^as to come de vicineto, from
the neighbourhood of the vill or place where the caufe of aclion
was laid in the declaration ; and therefore fome of the jury were
obliged to be returned from the hundred in which fuch vill lay ;
and, if none were returned, the array might be challenged
for deft<ft of hundredors. Thus the Gothic jury, or nembda
yfd.s alfo collected out of every quarter of the country ; " binos,
"' trinos, vcl etiamfenos, ex fingulis territorii qiiadrantibus^ ^ For,
living in the neighbourhood, they were properly the very coun-
try, or pais, to which both parties had appealed ; and were fup-
pofed to know before-hand the characters of the parties and v/it-
neffes, and therefore the better knew what credit to give to the

fads

4

p K. V. Up. of Worcefter. M. 13 Geo, II. q i V/hitelocke of pari. air.
B. R. r Siiernhook de jure Gith. I, i, c, n.

3 <5o Private Book IIL

facts alleged in evidence. But this convenience was overballan-
ced by another very natural and almoft unavoidable inconvenience ;
thatjurorSjComingout of the immediate neighbourhood, would
be apt to intermix their prejudices and partiaHties in the trial of
right. And this our law was fo fenfible of, that it for a long
time has been gradually relinquifhing this practice; the number
of neceffary hundredors in the whole panel, which in the reign
of Edward III were conftantly7/;c% being in the time of Fortef-
cue^ reduced to four. Afterwards indeed the ftatute 35 Hen. VIII.
c. 6. reflored the antient number oifix^ but that claufe was foon
virtually repealed by flatute 27 Eliz. c. 6. which required only
two. And fir Edward Coke alfo " gives us fuch a variety of cir-
cumflances, whereby the courts permitted this neceffary number
to be evaded, that it appears they were heartily tired of it. At
length, by ftatute 4 & 5 Ann. c. 16. it was entirely abolifhed
upon all civil adions, except upon penal llatutes; and upon thofe
alfo by the 24 Geo. II. c. 18. the jury being now only to come
de corpore eomitaius, from the body of the county at large, and
not de vicineto, or from the particular neigbourhood. The ar-
ray by the antient law may alfo be challenged, if an alien be party
to the fuit, and, upon a rule obtained by his motion to the court
for cL jury de medietate linguae, iuch. a one be not returned by the
Iheriff, purfuant to the Ifatute 28 Edw. III. c, 18. which enacls,
that where either party is an alien born, the jury fhall be one
half aliens and the other denizens, if required, for the more im-
partial trial. A privilege indulged to flrangers in no other
country in the world; but which is as antient with us as the
time of king Ethelred, in whofe ftatute de montlcoUs Walliae
(then aliens to the crown of England) cap. 3. it is ordained,
that" duodeni legales bo?nines, quorum fex Wall! ei fex Angli eruut,
*' Anglls et IVaU'is jus diciinto.** But where both parties are aliens,
no partiality is to be prefumed to one more than another ; and
therefore by the ftatute 2 1 Hen. VI. C. 4. the v/hole jury are then
dire^fted to be denizens. And it may be queftioned, whether the

ftatute

s GUb. Ilift. C. P. c. 8. u I Inft. 157.

t it L»vd. LL, (t 2$.

Ch. 23. Wrongs. 361

ftatute 3 Geo. II. c. "i^. (before referred to) hath not In civil
caufes undefignedly abridged this privilege of foreigners, by the
pofitive directions therein given concerning the manner of im-
panelling jurors, and the perfons to be returned in fuch panel*
So that the court might probably hefitate, efpecially in the cafg
of Jpecial juries, how far it has now a power to dire<5l a panel to
be returned de medietate linguae, and to altcrthe method prefcribed
for ftriking a fpecial jury, or balloting for common jurymen.

r

Challenges to the polls, tJi capita, are exceptions to par- J^o^,y^
ticular jurors; and feem to anfwer the reciifatio judicis in the '^/ '^
civil and canon laws : by the conftitutions of which a judge
might be rcfufed upon any fufpicion of partiality'*'. By the laws
of England alfo, in the times of Brafton'^ and Fleta'', ajudge
might be refufed for good caufe ; but now the law is otherwife,
and it is held that judges or juftices cannot be challenged \ For
the law will not fuppofe a poffibility of bias or favour in a judge,
who is already iworn to adminifler impartial juflice, and whofe
authority greatly depends upon that prefumption and idea. And
fhould the fact at any time prove flagrantly fuch, as the delicacy
of the law will not prefume beforehand, there is no doubt but
that fuch mifbehaviour would drawdown a heavy cenfure'from
thofe, to whom the judge is accountable for his condud.

But challenges to the polls of the jury (who are judges of
fact) are reduced to four heads by lir Edward Coke'' : propter
honoris refpeBum ; propter defedurn ; propter affedum / and prQp''
ter delidum.

I. Propter honoris refpediim ; as if a lord of parliament be
impanelled on a jury, he may be challenged by either party, or
he may challenge himfelf.

Vol. III. X X jj. Promr

A.

w CgL 3. I. i<S, Decretal. I. x, t. >8. f. 3<. z Co. Lift. 194. ,

X. I. $. c. 15. » I Inft. i5(i,

y /. 6. f. 37.

362

Private Book III,

2. Propter defed,um ; as if a juryman be an alien born, this
is defect of birth; if he be a Have or bondman, this is defect
of liberty, and he cannot be liber it legalls homo. Under the
word homo alfo, though a name commcii to both fexcs, the fe-
male is however excluded, propter dejedum lexus : except when
a widow feigns herfelf with ciJ^' in order to exclude the next
heir, and a fuppofitious birth is fulpeded to be intended ; then
upon the writ de ve?itre infphicndo, a jury of women is to be im-
panelled to try the queflion, 'vhe*:her with child, or not ^. But
the principal deficiency is defect of cftate, fufficient to qualify
him to be a juror. This depends upon a variety of ftatutes.
And, firft, by the ftatute Weftm. 5. 13 Edw. I. c. 38. none
fliall pafs on juries in affifes within the county, but fuch as may
difpend n.os. by the year at the leaft ; which is encreafed to 40 s»
by the ftatute 2 1 Edw. I. ft. i. and 2 Hen. V. ft. 2. c. 3. This was
doubled by the ftatute 27 Eliz. c. 6. which requires in every fuch
cafe the jurors to have eftate of freehold to the yearly value of
4/. at the leaft. But, the value of money at that time decreafmg
very confiderably, this qualification was raifed by the ftatute
16 & 17 Car. II. c. 3. to 20/. per annum, which being only a
temporary a<5l, for three years, was fuffered to expire without
renewal, to the great debafement of juries. However by the
ftatute 4 & 5 W. &M. c. 24. it was again raifed to 10 1. per an-
num in England and 61. in Wales, of freehold lands or copyhold ,
which is the firft time that copyholders (as fuch) were admitted
to ferve upon juries in any ot the king's courts, though they
had before been admitted to ferve in fome of the flieriff 's courts,
by ftatutes i Ric. III. c. 4. and 9 Hen. VII. c. 13. And, laftly,
by ftatute 3 Geo. II. c. 25. any leafeholder for the term of five
hundred years abfolute, or for any term determinable upon life
or lives, of the clear yearly value of lol.per annum over and
above the rent referved, is quaHfied to ferve upon juries. When
the jury is de medietate linguae, that isj one moiety of the Eng-
lifti tongue or nation, and the other of any foreign one, no want

of

h Cro, Elh. jCff,

Ch. 23. Wrongs. 365

of lands fhall be caufe of challenge to the alien ; for, as he is
incapable to hold any, this would totally defeat the privilege.

3. Jurors may be chTiWcnged propter affeBum^ for fufpicion
of biafs or^partiality. This may be either a principal challenge,
OT to the favour. A principal challenge is fuch, where the caufe
afligned carries with it prima facie evident marks of fufpicion,
either of malke or favour: as, that a juror is of kin to either
party within the ninth degree^; that he has been arbitrator on
cither fide ; that he has an intereft in the caufe j that there is
an action depending between him and the party ; that he has
taken' money for his verdi<5t ; that he has formerly been a juror
in the fame caufe ; that he is the party*s matter, fervant, coun-
fellor, fteward or attorney, or of the fame fociety or corporation
with him : all thefe are principal caufes of challenge •, which,
if true, cannot be overruled, for jurors muft be omni exceptione
Viajores. Challenges to the favour, are where the party hath no
principal challenge ; but objects only fome probable circumftan-
ces of fufpicion, as acquaintance and the like^; the validity
of which muft be left to the determination of triors, whofe ot-
iiceit is to decide whether the juror be favourable or unfavour-
able. The triors, in cafe the firft man called be challenged, are
two indifferent perfons named by the court ; and, if they try one
man and find him indifferent, he fhall be fworn ; and then he
and the two triors fhall try the next ; and when anotjier is found
indifferent and fworn, the two triors fhall be fuperfeded, and the
two firfl fworn on the jury fhall try the reft^.

4. Challenges propter delidwn are for fome crime or mif-
demefnor, that affects the juror's credit and renders him infa-
mous. As for a conviction of treafon, felony, perjury, or con-

Xx 2 fpiracy;

c Finch L. 401'. *' femper iX prohabili caufa trcs repudiare; etiam

i In the nemhda, or jury, of the antient " phres ex cr.ufa praegnanii et vza^fefia.'"

Gptfis, three cliallenges only were allowed (Stiernhook /. i. c. 4.)

to the favour, but the principal challenges e Co^ Lit. > f So

Asre iiviefinilc, " Licebat palum cxc'pere, et

2<$4 Private Book III,

fpiracy ; or if he hath received judgment of the pillory, tum-
brel, or the like ; or to be branded, whipt, or ftigmatized ; or
if he be outlawed or excommunicated, or bath been attainted of
faIfeverdicl:,/'^-^£'OTz/m;v, or forgery ; or laftly, if he hath proved
recreant when champion in the trial by battel, and thereby hath
loft his iiberam legem, A juror may himfelf be examined on oath
otvoir dire, vent at em dicer e, with regard to the three former of
thefe caufes of challenge, which are not to his diflionour ; but
not with regard to this head of challenge, fropter deliduni, which
would be to make him either forfwear or accufe himfelf, if
guilty,

Besides thefe challenges, which are exceptions again'ft the
£tnefs of jurors, and whereby they may be excluded from fer-
ving, there are alfo other caufes to be made ufe of by the jurors
themfelves, which are matter of exemption ; whereby their fer-
vice is excujed, and not excluded. As by ftatute Weft. 2.13 Edw. I.
c. 38. fick and decrepit perfons, perfons not commorant in the
county, and men above feventy years old; and by the ftatute of
7 & 8 W. III. c. 32. infants under twenty one. This exemption
as alfo extended by divers ftatutes, cuftoms, and charters, to phy-
ficians and other medical perfons, counfel, attorneys, officers of
the counts, and the like; all of whom, if impanelled, muft fhew
their fpecial exemption. Clergymen are alfoufually excufed,out
of favour and refpect to their function : but, if they are feifed of
lands and tenements, they are in ftriclnefs liable to be impanelled
in refpecl of their lay fees: unlefs they be in the fervice of the
king or of fome biftiop ; " in obfequid domini regis, vel alicujus
*« epifcopiK

If by means of chalfenges, or other caufe, a fufficlent num-
ber of unexceptionable jurors doth not appear at the trial, either
party may pray a tales. A tales is a fupply of fuch men, as are
fummoned upon the firft panel, in order to make up the defi-
ciency. For this purpofe a writ of decern tales, cclo tales, and

the

f F. N. B. j<55. JJf/. Bycv. 177.

Ch. 23. Wrongs. ^^5

the like, was ufed to be iflued to the flierifF at common law,
and miift be ftill fo done at a trial at bar, if the jurors make de-
fault. But at the ailifes of w////rm, by virtue of the ftatute 35
Hen. VIII. c. 6. and other fubfequent ftatutes, the judge is im-
powered at the prayer of either party to award a tales de circum-
Jhintibus^, of perfons prefent in court, to be joined to the other
jurors to try the caufe ; who are liable however to the fame chal-
lenges as the principal jurors. This is ufually done, till the le-
gal number of twelve be completed ; in which patriarchal and
apoftolical number fir Edward Coke ^ hath difcovered abundance
ofmyftery'.

When afulliclent number of perfons impanelled, or tales^
men, appear, they are then feparately fworn, well and truly to
try the iifue between the parties, and a true verdid to give ac-
cording to the evidence; and hence they are denominated the
jury, jurata, 2Lhd jurors, /c.Juratores*

W E may here again obferve, and obfcrving we cannot but
admire, how fcrupulouJly delicate and how impartially jull the
law of England approves itfelf, in the conflitution and frame of
a tribunal, thus excellently contrived for the teft and inveftiga-
tion of truth; which appears moft remarkably, i. In the avoid-
ing of frauds and fecret management, by electing the twelve ju-
rors out of the. whole panel by lot. 2. In it's caution againft all
partiality and bias, by quaffing the whole panel or array, if the
ofHcer returning is fufpecled to be other than indifferent; and
repelling particular jurors, if probable caufe be fhewn of malice

^ or

g Append. N". II. §. 4. in general tobe of much higher antiquity

h I Inft. iss- in England) tells us that among the iuhabi-

i Paufanias relates, that at the trial of tants of Norway, from whom the Normans

Mars, for murder, in the court denominated as well as the Danes wer£ defceuded, a great

arcopagus, from tliat incident, he was ac- veneration was paid to the number twelve :

(juit;ed by a jury compofcd of twelve pigun «' nihil JunBius, nihil antiquius fuit; perindt

beities. And Dr. Hickes, who attributes the " ac fi in ipfo hoc numero fecreta quaedam ejfet

Bntroduaion of this K«wi<.'r to the Normans, ♦« religio," {Di/fert. epMar. j^.J

M though he allows the inltitution of juries

366 Private Book IIL

or favour to either party. The prodigious multitude oftxcep-
tions or challenges allowed to jurors, who are the judges of fad,
amounts nearly to the fame thing as was praclifed in the Roman
republic, before (he loft her liberty : that the feled judges
{hould be appointed by the praetor with the mutual content of
the parties. Or, as Tully ^ expreffes it : " neminem voluerunt mU'
^^ jores noftr'i^ non modo de exlfllmatione ctiju/quam^Jsd ne fecuniana
" quidem de re minima, ejfe judicem ; niji qui inUr adve'rfarios cou-
f veni/et:*

Indeed thtfe /elefti judices bore in many refpe^ls a remark-
able refemblance to our juries: for they were firft returned by
the praetor J dedecuriafenatoriaconfcribuntur: then their names
were drawn by lot, till a certain number was completed ; in
urnam fortito mittuntur, tit de plwibus necejfarius numerus confici
fojfet : then the parties were allowed their challenges ; pojl ur-
nam permittitur accvfatori^ ac reo, ut ex illo niunero rejiciant quos
futaverint fibi aut inimicos aut ex aliqua re incommodos fore : next
they ftruck what we call a tales; rejedione celebrata, in eorum lo-
cum qui rejeEii fuerunt fubfortiebatur fraetor alios, quibus ille ju-
dicum legitimes nufiier us compleretur : laftly, the judges, like our
jury, were fworn ; his perfe^us, jurabant in leges judices, ut oh-
Jiridi religione judicarenf.

The jury are now ready to hear tiie merits ; and, to fix their
attention the clorer to the fads which they are impanelled and
fworn to try, the pleadings are opened to them by counfel on
that fide which holJs the affirmative of the queftion in ifTue.
For the ilfue is faid to lie, and proof is always firft required,
upon that fide which affirms the matter in queftion : in which
our law agrees with the civil'; ei incumbit probatio, qui dicit,
" tiQn qui negati cum per rerum 7iaturam fadum-negantis probatio

^' nulla

j pro Cluerit'to. 43. dikafia'i of the Greeks, the judkej fehB'i of

k Afcon. inCic. Verr. 1.6. A learned thp Roinans, and the juries oftheEngliflx

writer of our own, Dr. Pettingal, hath that he is tempted to conclude that the lat-

fhewn io an elaborate work (publifhed A. D. . ter are derived from the former,

it6ij.) fo jnany rcftmblaaccs between the I Ff. si, 3, j. CW. 4. ij, 23.

Ch. 23. Wrongs. 367

" nulla ftt* The opening counfel briefly informs them what has
been tranfacled in the court above j the patties, the nature of the
adion, the declaration, the plea, replication, and other proceed-
ings, and laftly upon what point the iflue is joined, which is
there fent down to be determined. Inftead of which formerly™
the whole record and procefs of the pleadings was read to them
in Englifti by the court, and the matter in iflue clearly explained
to their capacities. The nature of the cafe, and the evidence in-
tended to be produced, are next laid before them by counfel alfo
on the fame fide ; and, when their evidence is gone through, the
advocate on the other fide opens the adverfe cafe, and fupports it
by evidence j and then the party which began is heard by way
of reply.

The nature of my prefent defign will not permit me to en-
ter into the numberlefs niceties and diflinclions of what is, or
is not, legal evidence to a jury". I fhall only therefore felect
a few of the general heads and leading maxims, relative to this
point, together with fome obfervations on the manner of giving
evidence.

And, firfl, evidence fignifies that which demonftrates, makes
clear, or afcertains the truth of the very fact or point in iffue,
either on the one fide or on the other ; and no evidence ought to
be admitted to any other point. Therefore upon an adion of
debt, when the defendant denies his bond by the plea of non eft
faBum, and the iffue is, whether it be the defendant's deed or
no ; he cannot give a releafe of this bond in evidence : for that
does not deflroy the bond, and therefore does not prove the iffue
which he has chofen to rely upon, viz, that the bond has no
exiflence.

Again>

m Fortefc. c. a*. beauty and deftroying the chain of the
n This is admiralily well performed in whole ; ami which hath lately been en-
lord chief baron Gilbert's excellent trcatifc grafted into that learned and ufeful wark,
of evidence: a work, which it is impofliWe the introduUm to tht lav cf nifi fr'ms. ^to,
to abftraft or abridge, without lofing f<;mc 17C7.

368

Private Book III.

Again; evidence in the trial by jury is of two kinds, either
that which is given in proof, or that vv^hich the jury may receive
by their own private knowlege. The former, or proofs, (to which
in common fpeech the name of evidence is ufually confined) arc
either written, or parol, that is, by word of mouth. Written
proofs, or evidence, are, i. Records, and 2. Antient deeds of
thirty years Handing, which prove themfelves ; but 3. Modern
deeds, and 4. Other writings, muft be attefted and verified by
farol evidence of witneffes. And the one general rule that runs
through all the doctrine of trials is this, that the beft evidence
the nature of the cafe will admit of fliall always be required, if
pofilble to be had ; but if not poflibie, then the beft evidence
that can be had ihall be allowed. For if it be found that there
is any better evidence exifting than is produced, the very not
producing it is a prefumption that it would have detected fome
falfehood that at prefent is concealed. Thus, in order to prove a
leafe for years, nothing elfe fhall be admitted but the very deed
of leafe itfelf, if in being; but if that be pofitively proved to be
burnt ordeftroyed (not relying on any loofe negative, as that it
cannot be found, or the like) then an attefted copy may be pro-
duced; or />/2r6^/ evidence be given of it's contents. So, no evi-
dence of a difcourfe with another will be admitted, but the man
himfelf muft be produced ; yet in fome cafes (as in proof of any
general cuftoms, or matters of common tradition or repute) the
courts admit (di hear fay evidence, or an account of what perfons
deceafed have declared in their life-time: but fuch evidence will
not be received of any particular facts. So too, books of ac-
count, orfhop-books, are not allowed of themfclves to be given
in evidence for the owner ; but a fervant who made the entry
may have recourfe to them to refrefh his memory : and, if fuch
fervant (who was accuftomed to make thofe entries) be dead,
and his hand be proved, the book may be read in evidence" :
for, as tradefmen are often under a neceffity of giving credit
tvithout any note or writing, this is therefore, when accompanied

with

o Law o£ ni/i^rius.3,66.

Cli. 23. Wrong s. :5(5c>

with fuch other collateral proofs of f airnefs and regularity % tlie
bell evidence that can then be produced. However this dange-
rous fpecies of evidence is not carried fo far in England as
abroad''; where a man's own books of accounts, by a difrortion
of the civil law (which feems to have meant the fame thing as
is praclifed with us') with the fuppletory oath of the merchant,
amount at all times to full proof. But as this kind of evidence,
even thus regulated, would be much too hard upon the buyer at
any long diilance of time, the ilatute 7 Jac.I. c. 12. (the pcn-
ners of which fcem to have imagined that the books of them-
felves were evidence at common law) confines this fpecies of
proof to fuch tranfacfions as have happened within one year
before the aclion brought ; unlefs between merchant and mer-
chant in the ufual intercourfe of trade. For accounts of fo re-
cent a date, if erroneous, may more ealily be unravelled and
adjufled.

With regard to -parol evidence, or witnejfes ; it mufl firft
be remembered, that there is a procefs to bring them in by writ
oifuhpoena ad ted'ijicandum : wJiich commands them, laying alide
all pretences and excufes, to appear at the trial on pain of 100/.
to be forfeited to the king ; to which the flatute 5 Eliz. c. 9.
has added a penalty of 10/. to the party aggrieved, and damages
equivalent to the iofs fuftained by want of his evidence. But
no witnefs, unlefs his reafonable expenfes be tendered him, is
bound to appear at all ; nor, if he appears, is he bound to give
evidence till fuch charges are actually paid him: except he re-
fides within the bills of mortality, and is fummoned to give evi-
dence within the fame. This compulfory procefs, to bring in
unwilling witnefTes, and the additional terrors of an attachment
in cafe of difobedience, are of excellent ufe in the thorough in-
veftigation of truth : and, upon the fame principle, in the Athe-
VoL. III. Y y nian

p Salk. 185. battBiicmfoIa non fufficlunt. (Cod. 4. 19. 5.^

(J Gail, olfervat. a. lo. z^. Nam exemplo fermciofum f/?, vt ei fcripttirae

r InHrumenta domefllca, feu adnotatio, ft crerlatur, qua umifquifque fib'i adnotaticne pQ'

nn ahis quoque adminkulis adjiivenfur, ad pro- pria debitorcm confiituit. (Rid, I. t-J

370 Private Book III.

nian courts, the witnefles who were fummoned to attend the trial
had their choice of three things; either to fwear to the truth of
the facl in queftion, to deny or abjure it, or elfe to pay a fine of
a thoufand drachmas'. -

All witnefles, that have the ufe of their reafon, are to be
received and examined, except fuch as are infamous^ or fuch as
are interejled in the event of the caufe. All others are co?npetent
witneffes ; though the jury from other circumftances will judge
of their credibility. Infamous perfons are fuch as may be chdl-
Itnged 2is]uvors, propter delidum ) and therefore never fliall be
admitted to give evidence to inform that jury, with whom they
were too fcandalous to aflbciate. Interefted witneffes may be ex-
amined upon a voir dire, if fufpeded to be fecretly concerned in
the event ; or their intereft may be proved in court. Which laft
is the only method of fupporting an objeclion to the former clafs ;
for no man is to be examined to prove his own infamy. And no
counfel, attorney, or other perfon, intrufted with the fecrets of
the caufe by the party himfelf, Ihall be compelled, or perhaps
allowed, to give evidence of fuch converfation or matters of pri-
vacy, as came to his knovv^iege by virtue of fuch truft and con-
fidence^ : but he may be examined as to mere matters of fa(^,
as the execution of a deed or the like, which might have come
to his knowlege without being intrufted in the caufe.

One witnefs (if credible) isfitjicient evidence to a jury of any
fingle fad ; though undoubtedly the concurrence of two or more
corroborates the proof. Yet our lawconfiders that there are many
tranfadions to which only one perfon is privy j and therefore does
not always demand the tefi:imony of two, as the civil law uni-
verfally requires. " Unius rejponfio teftis omnino non audiatur'* *
To extricate itfelf out of which abfurdity, the modern prac-
tice of the civil law courts has plunged itfelf into another.
For, as they do not allow a lefs number than two witneffes to

be

S Pott Antiq. b. i. c. ai. Y Coi. 4. »0. 9.

t JLiUW of ni[i ^riiis, iOj.

Ch. 2^. Wrongs. 371

he plena probattdy they call the teftlmony of one, though never
fo clear and pofitive, femi-pkna probatio only, on which no fen-
tencc can be founded. To make up therefore the neceffary com-
plement of witnefles, when they have one only to any fingle
fad, they admit the party himfelf (plaintiff or defendant) to
be examined in his own behalf ; and adminifter to him what is
C2L\\Qdt\it fuppletory oath: and, if his evidence happens to be
in his own favour, this immediately converts the half proof into
a whole one. By this ingenious device fatisfying at once the
forms of the Roman law, and acknowleging the fuperior reafon-
ablenefs of the law of England : which permits one witnefs to
be fufficient where no more are to be had ; and, to avoid all
temptations of perjury, lays it down as an invariable rule, that
nemo tejlis ejfe debet in propria caufa,

Pos TTivE proof is always required, where from the nature
of the cafe it appears it might poflibly have been had. But,
next to pofitive proof, circumjlantial evidence or the dodrine of
prefiimptions muil: take place : for when the fact itfelf cannot be
demonftratively evinced, that which comes neareft to the proof
ofthefaclis the proof of fuch circumilances which either ne-^
cejarily, or iifually^ attend fuch fadls ; and thefe are called pre-
fumptions, which are only to be relied upon till the contrary be
aftually proved. Stabitur praefumptioni donee probetur in contra-
riu?n^. F/(j/(?;z^ prefumption is many times equal to full proof";
for there thofe circumftances appear, which necejfarily attend the
fa6t. As if a landlord fues for rent due at michaelmas 1754, ^"^
the tenant cannot prove the payment, but produces an acquit-
tance for rent due at a fubfequent time, in full of all demands,
this is a violent prefumption of his having payed the former rent,
and is equivalent to full proof ; for though the actual payment
is not proved, yet the acquittance in full of all demands is proved,
which could not be without fuch payment: and it therefore in-
duces i^ forcible a prefumption, that no proof fliall be admitted

Yy 2 to

u Co.Litt. 373, w lh\L tf.

272 Private Book III.

to the contrary''. Probable prefumption, arlfing from fuch cir-
cumftances as iifually attend the facl, hath alfo it's due weight :
as if, in a fuit for rent due 1754, ^^^^ tenant proves the payment
of the rent due in 1755 ; this will prevail to exonerate the te-
nant^ unlefs it be clearly fhewn that the rent of 1754 v/as re-
tained for fome fpecial reafon, or that there was fome fraud or
milbke : for otherwife it Vv'ill be prefumed to have been paid be-
fore that in 1755, as it is moft ufual to receive lirft the rents of
longeft ftanding. Lights or ralh prefumptions have no weight
or validity at all.

The oath adminiftred to the witnefs is not only that what
lie depofes fhall be true, but that he fl\all alfo depofe the whole
truth : io that he is not to conceal any part of what he knows,
whether interrogated particularly to that point or not. And all
thi:5 evidence is to be given in open court, in the prefence of the
parties, their attorneys, the counfel, and all by-flanders ; and
before the judge and jury: each party having liberty to except
to it's competency, which exceptions are publicly flated, and by
thejudge are openly and publicly allowed or difallowed, in the
face of the country j which mull curb any fecret bias or partia-
lity, that might arife in his own breaft. And if, either in his
directions or decihons, he mis-ftates the law by ignorance, inad-
vertence, or defign, the counfel on either iide may require him
publicly to feal 2. bill of exceptions ; dating the point wherein he
is fuppofed to err ; and this he is obliged to feal by ftatute
Weftm. 2. 13 Edw. I. c. 31. or, if he refufcs fo to do, the party
may have a compulfory writ againft him', commanding him to
feal it, if the fact alleged be truly dated : and if he returns,
that the facl is untruly ftated, when the cafe is otherwife, an ac-
tion will lie agalnft him for making a falfe return. This bill of
exceptions is in the nature of an appeal ; examinable, not in the
court out of which the record ilTues for the trial at nift friiis, but
in the next immediate fuperior court, upon a writ of error, after

judg-

X Gilh. cvitl. itfr. ? Reg. Br. i8j. s Inft, 487.

y Co. Lite. 373.

Ch. 23. Wrong s. jy-)

judgment given in the court below. But a demurrer to evidence
fliall be determined by the court, out of which the record is
fent. This happens, where a record or other matter is produced
in evidence, concerning the legal confequences of which there
arifes a doubt in law: in which cafe the adverfe party may if he
pleafes demur to the whole evidence; which admits the truth of
every ixdi that has been alleged, but denies the fuiEciency of them
all in point of law to maintain or overthrow the iflue^: which
draws thequeftion of law from the cognizance of the jury, to be
decided (as it ought) by the court. But neither thefe demurrers to
evidence, nor the bills of exceptions, are at prefent fo much in
ufe as formerly ; fince the more frequent exteniion of the difcre-
tionary powers of the court in granting a new trial, which is
now very commonly had for the mifdiredion of the judge at niji
prius.

This open examination of witnefles viva voce, in the pre-
fence of all mankind, is much more conducive to the clearing up
of truth'', than the private and fecret examination taken down
in writing before an officer, or his clerk, in the ecclefiaftical
courts, and all others that have borrowed their practice from the
civil law : where a witnefs may frequently depofe that in private
which he will be afhamed to teftifyin a public and folemn tribunal.
There an artful or carelefs fcribe may make a witnefs fpeakwhat
he never meant, by dreffingup hisdepolitions in his own forms
and language ; but he is here at liberty to correct and explain his
meaning, if mifunderflood, which he can never do after a writ-
ten depolition is once taken. Befides, the occalional queftions of
the judge, the jury, and the counfel, propounded to the wit-
nefles on a fudden, will fift out the truth much better than a
formal fet of interrogatories previoufly penned and fettled : and
the confronting of adverfe witnefles is alfo another opportunity
of obtaining a clear difcovery, which can never be had upon any
other method of trial. Noi*1s the prefence of the judge, during
the examination, a matter of fmall importance : for, befides the

refpecl

a Co. Lite. 7*. i Re|». 104. b Hale's HiA. C. L. ?;4, 5, 6,

374 Private Book III.

refpect and awe with which his prefence will naturally infpire
the witnefs, he is able by ufe and experience to keep the evidence
from wandering from the point in iffue. In fhort by this method
of examination, and this only, the perfonswho are to decide
upon the evidence have an opportunity of obfefving the quality,
age, education, underftanding, behaviour, and inclinations of the
witnefs ; in which points all perfons mull appear alike, when
their depolitions are reduced to writing, and read to the judo-e,
in the abfence of thofe who made them : and yet as much may
be frequently colleded from the m^anner in which the evidence
is delivered, as from the matter of it. Thefe are a few of the
advantages attending this, the Enghlh, way of giving teftimony,
ore tenus. Which was alfo indeed familiar among the antient
Romans, as may be collected from Quin<5lilian''; who lays down
very good inftru6tions for examining and crofs-examining wit-
Tit^t^ viva voce. And this, or fomewhat like it, was continued
as low as the time of Hadrian'^: but the civil law, as it is now
modelled, rejects all public examination of witnelTes.

A s to fuch evidence as the jury may have in their own con-
fciences, by their private knowlege of facts, it was an antient
do<5lrine, that this had as much right to fway their judgment as
the written or parol evidence which is delivered in court. And
therefore it hath bcx,n often held% that though no proofs be
produced on either lide, yet the jury might bring in a verdicft.
For the oath of the jurors, to find according to their evidence
was conflrued ^ to be, to do it according to the beft of their own
knowlege. Which conftrudion was probably made out of ten-
dernefs to juries ; that they might efcape the heavy penalties of
an attaint, in cafe they could fliew by any additional proof, that

their

c Tnfiit.^ orat.I, s-c.y. " etmdemque ■meditatumfermcnem attukrtnt,an

d See his epiftle to Varus, the legate or " ad er. quae interrogaveras extempore verifi-

judge of Cilicia : " tu magis fcire potes, " I^Ua refponderht." (Ff. xj. j. 3 J

" quanta fides fit haiendatejlilmi ; qui, et cu- e Yearbook, 14 Hen. VII. aj> Hob. aij,

•' jus dignitatis, et cujus aeliimationis fint ; e/, i Lev. 87.

•• quifimplioiter vififint dicere \ utrum mum f Vaii«h. 148, 149.

Ch. 23. Wrongs. . 575

their verdid was agreeable to the truth, though not according to
the evidence produced: with which additional proof the law
prefumed they were privately acquainted, though it did not ap-
pear in court. But this doctrine was gradually exploded, when
attaints began to be difufed, and ?i€w trials introduced in their
ftead. For it is quite incompatible with the grounds, upon
which fuch new trials are every day awarded, viz. that the ver-
dict was given without or contrary to, evidence. And therefore,
together with new trials, the praclice feems to have been firfl
introduced^, which now univerfally obtains, that ifa jurorknows
any thing of the matter in iffue, he may be fworn as a vvitnefs,
and give his evidence publicly in court.

When the evidence is gone through on both fides, the judge
in the prefence of the parties, the counfel, and all others, fums
up the whole to the jury; omitting all fuperfluous circumflan-
ces, obferving wherein the main queftion and principal ifiue lies,
flating what evidence has been given to fupport it, with fuch re-
marks as he thinks necefTary for their direction, and giving
them his opinion in matters of law ariling upon that evi-
dence.

The jury, after the proofs arc fummed up, unlefs the cafe
be very clear, withdraw from the bar to conlider of their ver-
dict : and, in order to avoid intemperance and caufelefs delay, are
to be kept without meat, drink, fire, or candle, unlefs by per-
mifTion of the judge, till they are all unanimoufly agreed. A
method of accelerating unanimity not wholly unknown in other
conftitutions of Europe, and in matters of greater concern. For
by the golden bulle of the empire'', if, after the congrefs is
opened, the electors delay the election of a king of the Romans
for thirty days, they fhall be fed only with bread and water, till
the fame is accomplifhed. But if our juries eat or drink at all,
or have any eatables about them, without confent of the court, and
before verdict, it is fineable ; and if they do fo at his charge for

whom

g Styl. J33. X Sid. 133, b ch. x.

37^ Private Book III.

whom they afterwards find, it will fet afide the verdift. Alfo
if they fpeak with either of the parties or their agents, after
they are gone from the bar; or if they receive any frefli evidence
in private ; or if to prevent difputes they caft lots for whom
they fhall find ; any of thefe circumilances will entirely vitiate
the verdict. And it has been held, that if the jurors do not agree
in their verdicft before the judges are about to leave the town,
though they are not to be threatned or imprifoned' ; the judges
are not bound to wait for them, but may carry them round the
circuit from town to town in a cart^. This necefllty of a total
unanimity feems to be peculiar to our own conftitution '; or, at
leaft, in the nembda or jury of the antient Goths, there was re-
quired (even in criminal c ifes) only the confent of the major
part j and in cafe of an equality, the defendant was held to be
acquitted"'.

When they are all unanimoufly agreed, the jury return back
to the bar; and, before they deliver their verdict, the plaintiff
is bound to appear in court, by himfelf, attorney, or counfel, in
order to anfwer the amercement to which by the old law he is
liable, as has been formerly mentioned", in cafe he fails in his fuit,
as a punifhment for his falfe claim. To be amerced, or a mercie,
is to be at the king's mercy with regard ,to the fine to be im-
pofed ; in ?nifencordia do?ni7ii regis pro falfo clamor e fuo. The
amercement is difufed, but the form fi;ill continues; and if the
plaintiff does not appear, no verdict can be given, but the plain-"
tiff is faid to be nonfuit, non feqiiitur claTiicrem finim. Therefore
it is ufual for a plaintiff, when he or his counfel perceives that
he has not given evidence fuificient to maintain his ifTue, to be
voluntarily nonfuited, or withdraw himfelf : whereupon the crier
is ordered to call the -plaintiffs and if neither he, nor any body
for him, appears, he is nonfuited, the jurors are difcharged, the
adion is at an end, and the defendant fhall recover his cofts.

The

i Mirr. c. 4. §. 14. m Sticrnh. I, j, c. 4.

k Lib. Af. foL /fo. pJ. ir. n pag. 175.

1 Sec Barrington on the ftatutes. 17, j8, ip.

Gh. 23. Wrongs. 377

The reafon of this practice is, that a nonfuit is more eligible for
the plaintiff, than a verdici: againft him : for after a nonfuit^
which is only a default, he may commence the fame fuit again
for the fame caufe of action; but after a verdict had, and jiidg-
tnent confeqiient thereupon, he is for ever barred from attacking
the defendant upon the fame ground of complaint. But, in cafe
the plaintiff appears, the jury by their foreman deliver in their
Verdi6t.

A VERDICT, iiere didutn, is txihtr privy, ov public. A privy ver-
dict is when the judge hath left or adjourned the court; and the
jury, being agreed, in order to be delivered from their confinement,
bbtain leaveto give their verdici privily to the judgeout of court°:
"Which privy verdi(51; is of no force, unlefs afterwards afHrmed by
a public verdici given openly in court ; wherein the jury may,
if they pleafe, vary from their privy verdift. So that the privy
verdici is indeed a mere nullity; and yet it is a dangerous prac-
tice, allowing time for the parties to tamper with the jury, and
therefore very feldom indulged. But the only effectual and legal
verdici is the public verdici ; in which they openly declare to
have found the ilTue for the plaintiff, or for the defendant ; and
if for the plaintiff, they aifefs the damages alfo fuftained by the
plaintiff, in confequence of the injury upon which the action is
brought.

SOiM E T I M E s, if there arifes in the cafe any difHcuIt matter of
law, the jury for the fake of better information, and to avoid
the danger of having their verdici attainted, will find 2ifpecial
verdici; which is grounded on the ftatute Weflm. 2. 13 Edvv. f.
c. 30.5. 2. And herein they ftate the naked fa6ls, as they find
them to be proved, and pray the advice of the court thereon ;
concluding conditionally, that if upon the whole matter the
court fhall be of opinion that the plaintiff had caufe of action,
they then find for the plaintiff j if otherwife, then for the de-
VoL. III. Z z fendant.

o If tlic judge hath adjourned the court to his own lod^injs, and there receives the
verdid, it is a f:thlic and not a ftivy vcfdift.

978 Private Book III.

fendant. This is entered at length on the record, and afterwards
argued and determined in the court at Weftminiler, from whence
the ilTue came to be tried.

An OTHER method of findingarpeciesoffpecialverdift,iswhen
- the jury find a verdict generally for the plaintiff, but fubjecT: never-
thelefs to the opinion of the judge or the court above, on -^Jpecial
f^/^flated by the counfel on both fides with regard to a matter
of law: which has this advantage over a fpccial verdicT:, that it
is attended with much lefs expenfe, and obtains a much fpeedier
decifion; t\\t poftea (of whicli in the next chapter) being flayed
in the hands of the officer of tiift pr'ius, till the queftion is de-
termined, and the verdi-fl is then entered for the plaintiff or
defendant as the cafe may happen. But, as nothing appears
upon the record but the general verdicl, the parties are pre-
cluded hereby from the benefit of a writ of error, if diffatisfied
with the judgment of the court or judge upon the point of law.
Which makes it a thing to be wifiied, that a method could be
devifed of either lefTening the expenfe of fpecial verdids, or elfc
of entering the cafe at length upon the pofiea. But in both thefe
inflances the jury may, if they think proper, take upon them-
felves to determine, at their own hazard, the comphcated quef-
tion of facl and law; and, without either . fpecial verdid: or
fpecial cafe, may find a verdict abfolutely either for the plaintiff
or defendant''*

When the jury have delivered in their verdicT:, and it is re*
corded in court, they are then difcharged. And fo ends the trial
by jury: a trial, which befides the other vaft advantages which
■we have occafionally obferved in it's progrefs, is alfo as expedi-
tious and cheap, as it is convenient, equitable, and certain ; for
a commifTion out of chancery, or the civil law courts, for exami-
ning witnefTes in one caufe will frequently laft as long, and of
courfe be full as expenfive, as the trial of a hundred iffues at
nUiprius : and yet the fad cannot be determined by fuch com-

miflioners

p Litt. §. ^8*.

Ch. 23. Wrongs. 379

miilioners at all ; no, not till the depofitions arc publiflied and
read at the hearing of the caufe in court.

Upon thefe accounts the trial by jury ever has been, and I
trull ever will be, looked upon as the glory of the Englifh law.
And, if it has fo great an advantage over others in regulating
civil property, how much mull that advantage be heightened,
when it is applied to criminal cafes ! But this we muft refer to
the enfuiug book of thefe commentaries : only obferving for the
prefent, that it is the moil tranfcendent privilege which any fub-
jecl can enjoy, or wifli for, that he cannot be afl'eded either in
his property, his liberty, or his perfon, but by the unanimous
confent of twelve of his neighbours ard equals. A conflitution,
that I may venture to ainrm has, under providence, fecured the
juil liberties of this nation for a long fuccellion of ages. And
therefore a celebrated French writer'', who concludes, that be-
caufe Rome, Sparta, and Car.hage have loft their liberties,
therefore thofe of England in time muft perifh, fhouid have re-
collecled that Rome, Sparta, and Carthage, at the time when
their liberties were loft, were ftrangers to the trial by jury.

Great as this eulogium may feem, it is no more than this
admirable conftitution, v. hen traced to it's principles, Vv'ill be
found in fober reafon to deferve. The impartial adminiftration
ot juftice, which fecures both our perfons and our properties, is
the great end of civil fociety. But if that be entirely entrufted
to the magiftracy, a felecl body of men, and thofe generally fe-
lecled by the prince or fuch as enjoy the higheft offices in the
ftate, their decifions, in fpite of their own natural integrity,
will have frequently an involuntary biafs towards thofe of their
own rank and dignity : it is not to be expe<^ed from human na-
ture, that the few fhouid be always attentive to the interefts and
good of the many. On the other hand, if the power of judica-
ture were placed at random in the hands of the multitude, their
^ecifions would be wild and capricious, and a new rule of a<5lion

Z z 2 would

^ Montef^. Sp. \. xi, (?,

380 Private Book III.

would be every day eflablifhed in our courts. It is wifely there^
fore ordered, that the principles and axioms of law, which are
general proportions, flowing from abftracted reafon, and not
accommodated to times or to men, fhould be depoiited in the
brcafts of the judges, to be occafion^lly applied to fuch facls as
icome properly afcertained before them. For here partiality can
have little fcope: the law is well known, and is the fame for all
ranks and degrees ; it follows as a regular conclufion from the
premifes of fad: pre-eftablifhed. But in fettling and adjuftinga
iqueilion of facl, when intruftcd to any fmgle magiftrate, par-
tiality and injuftice have an ample field to range in; either by
boldly afTerting that to be proved which is not fo, or more art-
'fully by fupprefling fome circumftances, flretching and warping
others, and diftinguifhing away the remainder. Here therefore
a, competent number of fenfible and upright jurymen, chofen
by lot from among thofe qf the middle rank, will be found the
beft.inveftigatorsof truth, and the fureft guardians of pubHc
juftice. For the moft powerful individual in the ftate will be
cautious of committing any flagrant invafion of another's right,
when he knows that the fad: of his oppreflion muft be examined
and decided by twelve indifferent men, not appointed till the
hour of trial ; and that, when once the facl is afcertained, the
law muft of courfe redrefs it. This therefore preferves in the
hands of the people that fliare, which they oughc to have in the
sdminiftration of public juftice, and prevents the encroachments
of the more powerful and wealthy citizens. Every new tribu-
nal, ereded for the deciflon of fads, without 'the intervention
of a jury, (whether compofed of juftices of the peace, com-
miilioners of the revenue, judges of a court of confcience, or
any other ftanding magiftrates) is a ftep towards eftablifhing aril-
tocracy, the moft opprclTlve of abfolute governments. The feo-
dal fyftem, which, for the fake of military fubordination,' pur-
i'ued an ariftocratical plan in all it's arrangements of property,
had been intolerable in times of peace, had it not been wifely
counterpoifed by that privilege, fo univerfally diffufed through
every part of it^ the trial by the feodal peers. And in every

country

Ch. 23. Wrongs. 381

country on the continent, as the trial by the peers has been gra-
dually difufed, lb the nobles have increafcd in power, till the
ftatc has been torn to pieces by rival faclions, and oligarchy in
effecl has been eftablilhed, though under the fhadow of regal
government ; unleis where the miferable commons have taken,
Ihelter under abiolute monarchy, as the lighter evil of the two.
And, particularly, it is a circumllance well worthy an Englilh-
min's obfervation, that in Sweden the trial by jury, that bul-
wark of northern liberty, which continued in it's full vigour fo
lately as the middle of the laft century% is now fallen into
difufed and that there, though the regal power is in no country
fo clofely hmited, yet the liberties of the commons are extin*
guiflied, and the government is degenerated into a mere arifto-
cracy'. It is therefore, upon the whole, a duty which every
man owes to his country, his friends, his pofterity, and him-
felf, to maintain to the utmoft of his power this valuable con-
ftitution in all it's rights ; to rcftore it to it's antient dignity, if
at all impaired by the different value of property, or otherwife
deviated from it's firll inftitution ; to amend it, wherever it is
defective ; and, above all, to guard with the moft jealous cir-
cumfpeftion againft the introduclion of new and arbitrary me-
thods of trial, which, under a variety of plaufible pretences,
may in time imperceptibly undermine this beft prefervative of
Englifli liberty.

Yet, after all, it muft be owned, that the beft and moft ef-
fe6lual method topreferve and extend the trial by jury in prac-
tice, v/ould be by endeavouring to remove all the defects, as well
as to improve the advantages, incident to this mode of enquiry,
Ifjuftice is not done to the intire fatisfactionof the people, in
this method of deciding facts, in fpite of all encomiums and pa-
negyrics on trials at the common law; they will refort in fearch
of thatjuftice to another tribunal ; though more dilatory, though
more expenfive, though more arbitrary in it's frame and confti-

tudon,

r a Whitelocke of pari. 417. t Hid, ij,

s Mod. Un. Hift. xxxiii. jj.

382

Private Book III.

tution. If juftice is not done to the crown by the verdid of a
jury, the neceiTities of the public revenue will call for the erec-
tion of fummary tribunals. The principal defects feem to be,

1. The want of a complete difcovery by the oat^ of the par-
ties. This each of them is now intitled to have, by going through
the expenfe and circuity of a court of equity, and therefore it is
foraetimes had by confent, even in the courts of law. How far
fuch a mode of compulfive examination is agreeable to the rights
of mankind, and ought to be introduced in any country, may be
matter of curious difcuflion, but is foreign to our prefent en-
quiries. It has long been introduced and eftabliihied in our courts
of equity, not to mention the civil law courts ; and it feems the
height of judicial abfurdity, that in the fame caufe, between the
fame parties, in the examination of the fame fafls, a difcovery by
the oath of the parties fhould be permitted on one iide of Weft-
minftcr-hall, and denied on the other: or that the judges of one
and the fame court lliould be bound by law to rejed: fuch a fpe-
cies of evidence, it attempted on a trial at bar; but, when iit->
ting the next day as a court of equity, fhould be obliged to hear
fuch examination read, and to found their decrees upon it. In
fhort, common reafon will teli us, that in the fame country, go-
verned by the fame laws, fuch a mode of enquiry Ihould be uni-
verfally admitted, or elfe univerfally rejected.

2. A SECOND defecH: is of a nature fomewhat fimilar to the
firfi:: the want of a compuliive power for the production of
books and papers belonging to the parties. In the hands of third
perfons they can generally be obtained by rule of court, or by
adding a claufe of requilition to the writ of fubpoena, which is
then called 2ifiibpoena duces tecum. But, in mercantile tranfac-
tions efpecially, the light of the party's own books is frequently
decilive; fuch, forinftance, as the daybook of a trader, where
thetranfaclion muft be recently entered, as really underftood at
the time ; though fubfequent events may tempt him to give it a
different colour. And as, this evidence may be finally obtained,

and

Ch. 23. Wrongs. - 385

and produced on a trial at law, by the circuitous courfe of filing
a bill in equity, the want of an original power for the fame pur-
pofes in the courts of law is liable to the fame obfervations as
were made on the preceding article.

3. Another want is that of powers to examine witnefTes
abroad, and to receive their depofitions in writing, where the
witnelTes relide, and efpecially when the caufe of action arifes
in a foreign country. To which may be added the power of ex-
amining witnefTes that are aged, or going abroad, upon interro-
gatories de bene ej/e ; to he read in evidence if the trial fhould be
deferred till after their death or departure, but otherwife to be
totally fupprelTed. Both thefe are now very frequently efFedled
by mutual confent, if the parties are open and candid ; and they
may alfo be done indirectly at any time, through the chanel of a
court of equity : but fuch a pradlice has never yet been direclly
adopted" as the rule of a court of law.

4. The adminiflratlon of juflice fhould not only be chafle,
but (like Caefar's wife) iliould not even be fufpefted. A jury
coming from the neighbourhood is in fome refpecls a great ad-
vantage ; but is often liable to flrong objections : efpecially in
fmalljurifdidions, as in cities which are counties of themfelves,
and fuch where affifes are but feldom holden ; or where the
queftion in difpute has an extenlive local tendency ; where a cry
has been raifed and the palTions of the multitude been inflamed j
or VN-^here one of the parties is popular, and the other a firanger
or obnoxious. It is true that if a whole county is interefted ia
the queftion to be tried, the trial by the rule of law'' mufl be in
fome adjoining county : but, as there may be a flricl intereft fo
minute as not to occafion any biafs, fo there may be the flrong^efl
biafs, where the whole county cannot be faid to have any pecu-
niary intereft. In all thefe cafes, to fummoo a jury, labouring
tinder local prejudices, is laying a fnare for their confciences:
and, though they fhould have virtue and vigour of mind fuffi-

cient

u Sfcepjg. 7j. w Stra, 177.

384

Private Book III.

cient to keep them upright, the parties will grow fufpicious, and
refort under various pretences to another mode of trial. The
courts of law will therefore in tranfitory actions very often change
the venue, or county wherein the caufe is to be tried'': but in
/o^^/ actions, though they fometimesdo it indirectly and by mu-
tual confent, yet to effed it directly and abfolutely, the parties
are driven to the delay and expenfe of a court of equity ; where,
upon making out a proper cafe, it is done upon the ground of
being neCeffary to a fair, impartial, and fatisfaciory trial ^.

The locality of trial required by the common law feems a
confequence of the antient locality of Jurifdiction. All over the
world, actions tranfitory follow the perfon of the defendant,
territorial fuits mull be difcufled in the territorial tribunal. I
may fue a Frenchmen here for a debt contrafted abroad; but
lands lying in France muft be fued for there, and Englifh lands
muft be fued for in the kingdom of England. Formerly they
were ufually demanded only in the court-baron of the manor,
where the fteward could fummon no jurors but fuch a:s were the
tenants of the lord. When the caufe was removed to the hundred
court, (as feems to have been the courfe in the Saxon times ^) the
lord of the hundred had a farther power, to convoke the inha-
bitants of different vills to form a jury ; obferving probably al-
ways to intermix among them a itated number of tenants of that
manor wherein the difpute arofe. When afterwards it came to
the county court, the great tribunal of Saxon juftice, the flierifF
had wider authority, and could impanel a jury from the men of
his county at large: but was obliged (as a mark of the original
locality of the caufe) to return a competent number of hundred-
ors; omitting the inferior diftindion, if indeed it ever exifted.
And when at length, after the conqueft, the king's jufticiars
drew the cognizance of the caufe from the county court, though

they

X Sec pag. 194. duke of Devonfhire and the miners of the

y This, among a numtcr of other in- county of Derby, A. D. 1761.

ftances, was the cafe of the iflues direded by z LL. Ediv. Coi'f. c. 3*. Wiik. J03.

the houfe of lords in the caufe between tl\c

Ch. 23. Wrongs. •' 385

they could have fummoned a jury from any part of the king-
dom, yet they chofc to take the caufe as they found it, with all
it's local appendages ; triable by a ftated number of hundredors,
mixed with other freeholders of the county. The reftriction as
to hundredors hath gradually worn away, and at length intirely
vanifhed^; that of counties flill remains, for many beneficial
purpofes: but, as the king's courts have a jurifdiclion co-exten-
live with the kingdom, there furely can be no impropriety in de-
parting from the general rule, when the great ends of juftice
warrant and require an exception.

I H A V E ventured to mark thefe defecls, that the juft pane-
gyric, which I have given on the trial by jury, might appear to
be the refult of fober refledion, and not of enthufiafm or pre-
judice. But fhould they, after all, continue unremedied and un-
fupplied, flill (with all it's imperfections) I truft that this mode
of decifion will be found the beft criterion, for invefligating the
truth of facts, that was ever eftabliflied in any country.

a Sec pag. 360.

Vol. III. A a a

(
^8(5 Private Book III.

Chapter the twenty fourth.
Of judgment, and it's INCIDENTS.

IN the following chapter we are to confidcr the tranfaclions in
a caufe, next immediately fubfequent to arguing the demur-
rer, or trial of the iffue.

1 F the iffue be an iffue of fa(5l ; and, upon trial by any of the
methods mentioned in the two preceding chapters, it be found
for either the plaintiff or defendant, or fpecially ; or if the plain-
tiff makes default, or is nonfuit ; or whatever, in fliort, is done
fubfequent to the joining of iffue and awarding the trial, it is
entered on record, and is called a fojiea ^. The fubftance of
which is, that pojlea, afterwards^ the faid plaintiff and defen-
dant appeared by their attornies at the place of trial ; and a
jury, being fworn, found fuch a verdicl ; or, that the plaintiff
after the jury fworn made default, and did not profecute his
fuit ; or, as the cafe may happen. This is added to the roll,
which is now returned to the court from which it was fent ; and
the hiftory of the caufe, from the time it was carried out, is
thus continued by the pjlea.

Next

a Append. N«. II. §. ?,

Ch. 24. Wrongs. 387

N F.XT follows, fixthly, the judgment of the court upon what
has previoully palled ; both the matter of law and matter of fact
being now fully weighed and adjufted. Judgment may however
for certain cauics be yz^£';?(^(?(y, or finally i7rr<f/?«f^: for it cannot
be entered till the next term after trial had, and that upon notice
to the other party. So that if any defect of jultice happened
at the trial, by furprize, inadvertence, or mifcondu6l:, the party
may have relief in the court above, by obtaining a new trial;
or if, notwithflanding theilTue of fact be regularly decided, it
appears that the complaint was either not actionable in itfelf, or
not made with fuflicient precilion and accuracy, the party may
fuperfede it, by arrefling or ftaying the judgment.

I. C AU s E s difufpendlng the judgment by granting a 7iew trial,
are at prefent wholly extrinftc, ariiing from matter foreign to or
dehors the record. Of this fort are want of notice of trial ; or
any flagrant mjibehaviour of the party prevailing tov/ards the
jury, which may have influenced their verdict ; or any grr-fs mif-
behaviour of the jury among themfelves : alfo if it appears by
thejudge'sreportjCertified to the court,thatthejury have brought
in a verdict without or contrary to evidence, fo that he is reaion-
ably difl'atisiied therewith^; or if they have given exorbitant das-
mages'"; or if the judgehimfelf has mif-direfted thejury, fo that
they found an unjuftitiable verdict ; for thefe, and other reafons
of the like kind, it is the practice of the court to award a new,
or fecond, triah Butif tv/o juries agree in the fame or aiimilar
verdict, a third trial is feldom awarded'^ : for the law will not
readily fuppofe, that the verdict of any one fubfequent jury can
countervail the oaths of two preceding ones.

The exertion of thefe fuperintendent powers of the king's
courts, in fetting afide the verdict of a jury and granting a new
trial, on account of mifbehaviour in the jurors, is of a date ex-

A a a 2 tremely

b l.av/ o£ niji prtHS, 303, 4. " d $ MoJ. n. Salk. (J49.

c Ccmb. jf;.

388 . Private Book III.

tremely antient. There are inftances, In the year books of the
reigns of Edward IIP, Henry IV^, and Henry VIF, of judgments
being flayed (even after a trial at bar) and new venire'^ awarded,
becaufe the jury had eat and drank without confent of the judge,
and becaufe the plaintiff had privately given a paper to a jury-
man before he was fworn. And upon thefe the chief juftice,
Glyn, in 1655, grounded the firft precedent that is reported in
our books'* for granting a new trial upon account of excejfive
damages given by the jury: apprehending with reafon, that no-
torious partiality in the jurors was a principal fpecies of mifbe-
haviour. A few years before, a practice took rife in the com-
mon pleas ', of granting new trials upon the mere certiiicate
of the judge, (unfortified by any report of the evidence) that the
verdict had palled againft his opinion ; though chief julrice Rolle
(who allowed of new trials in cafe of milbehaviour, furprize, or
fraud, or if the verdict was notorioufly contrary to evidence'')
refufed to adopt that practice in the court of king's-bench. And
at that time it was clearly held for law', that vvhatever matter
was of force to avoid a verdicl, ought to be returned upon the
poJJea, and not merely furmifed to the court ; left pofterity Ihould
wonder why a new venire was awarded, without any fu5icient
reafon appearing upon the record. But very early in the reign
of Charles the fecond new trials were granted upon ^^^^^w/j-";
and the former ftrictnefs of the courts of law, in refpect of new
trials, having driven many parties into equity to be relieved from
opprelTive verdicts, they are now more liberal in granting them :
the maxim at prefent adopted being this, that (in all cafes of mo-
ment) wherejuftice is not done upon one trial, the injured party
is intitled to another".

Fo

R"

/ea4 Edw. III. 14 Bro. Ahr. t. vsrdite.iT. k i SiJ. 13$. Styl. praB. Rc^. 310, 311.

f II Hen. IV. lit Bro. Abr. t. enqucft. 75. edit. idsj.

g 14 Hen. VIl. I Bro. Abr. t. verdite. 18. 1 Cro. Eliz. 616. Talm. 315. i firownl,

h Styl. 466. 107.

i Ibid, 138. mi Sid. 235. j Lev. 140.

n 4 I'urr. 395.

Ch. 24. Wrongs. 389

F o RM E RL Y the only remedy, for reverfal of a verdi6l unduly
p-iven, was by writ of attaint ; of which we fhall fpeak in the
next chapter, and which is at leaft as old as the inftitution of the
grand aflife by Henry IF, in lieu of the Norman trial by battel.
Such a fanction was probably thought neceffary, when, inftead of
appealing to providence for the decilion of a dubious right, it
was referred to the oath of fallible or perhaps corrupted men.
Oar anceftors faw, that a jury might give an erroneous verdicT:;
and, if they did, that it ought not finally to conclude the quef-
tion in the firft inftance : but the remedy, which they provided,
Ihews the ignorance and ferocity of the times, and the fimpHcity
of the points then ufually litigated in the courts of juftice. They
fuppofed that, the law being told to the jury by the judge, the
proof of fact mull be always fo clear, that, if they found a
wrong verdicl:, they muft be v/ilfuUy and corruptly perjured.
Whereas a juror may find ajuil verdict from unrighteous mo-
tives, which can only be known to the great fearcher of hearts :
and he may, on the contrary, find a verdicl very manifellly wrong,
withoufe any bad motive at all ; from inexperience in bufinefs,
incapacity, mifapprehenfion, inattention to circumflances, and a
thouiand other innocent caufes. But fuch a remedy as this laid
the injured party under an infuperable hardfhip, by making a
conviclion of the jurors for perjury the condition of his redrefs.

The judges fav/ this; and very early, even for the mifbeha-
•viour of jurymen, infsiead of profecuting the writ of attaint,
awarded a fecond trial : and fubfequent refolutions for more
than a century pallj have fo extended the benefit of this remedy,
that the attaint is now as obfoiete as the trial by battel which it
fucceeded : and we fliall probably fee the revival of the one as
foon as the revival of the other. And here I cannot but again
admire*" the wifdom of fufiering time to bring to perfedion new
remedies, piore eafy and beneficial to the fubjecl j which, by

degrees

o Ipft recall iajlitulionl elegantcr infcrta, p Seepag. i(J8,

(Glanv. /. a. c. 13.)

390 Private Book III.

degrees, from the experience and approbation of the people, fu-
percede the fleceiHty or defire of uling or continuing the old.

If every verdict was final in the firfl inftance, it would tend
to deftroy this valuable method of trial, and would drive away
all caufes of confequence to be decided according to the forms of
the imperial law, upon depofitions in writing j which might be
reviewed in a courfe of appeal. Caufes of great importance,
titles to land, and large queftions of commercial property, come
often to be tried by a jury, merely upon the general ilTue : where
the fads are complicated and intricate, the evidence of great
length and variety, and fometimes contradicting each other ; and
where the nature of the difpute very frequently introduces nice
queftions and fubtilties of law. Either party may be furprized
by a piece of evidence, which (had he known of it*s produdion)
he could have explained or anfvvercd ; or may be puzzled by
a legal doubt, which a little recollection would have folved. In
the hurry of a trial the ableft judge may miftake the law, and
mifdiredt the jury : he may not be able fo to ft ate and range the
evidence as to lay it clearly before them ; nor to take off" the
artful impreftions which have been made on their minds by
learned and experienced advocates. The jury are to give their
opinion injlanter ; that is, before they feparate, eat or drink.
And under thefe circumftances the moft intelligent and beft in-
tentioned men may bring in a verdict, which they themfelves
upon cool deliberation would wifli to reverfe.

N E X T to doing right, the great objed in the adminiftratlon
of public juftice fliould be to give public fatisfaction. If the
verdicl be liable to many obje6tions and doubts in the opinion of
his counfel, or even in the opinion of by-ftanders, no party would
go away fatisfied unlefs he had a profpeft of reviewing it. Such
doubts would with him be decilive ; he would arraign the deter-
mination as manifeftly unjuft ; and abhor a tribunal which he
imagined had done him an injury without a poffibility of re-
drefs.

Granting

Ch. 24. Wrongs.

391

Granting a new trial, under proper regulations, cures all
tliefe inconveniences, and at the fame time prefcrves intire and
renders perfect that molt excellent method of decifion, which is
the glory of the Englilh law. A new trial is a rehearing of the
caufe before another jury ; but with as little prejudice to cither
party, as if it had never been heard before. No advantage is
taken of the former verdict on the one fide, or the rule of court
for awarding fuch fecond trial on the other : and the fubfequcnt
verdicl, though contrary to the firft, imports no tittle of blame
upon the former jury ; who, had they pofTcfled the fame lights
and advantages, would probably have altered ther own opinion.
The parties come better informed, the counfel better prepared,
the law is more fully underilood, the judge is more mafter of
the fubjecl j and nothing is now tried but the real merits of the
cafe. '

A SUFFICIENT ground mufl however be laid before the
court, to fatisfy them that it is neceffary to juftice thatthe caufe
fhould be farther confidered. If the matter be fuch, as did not
or could not appear to the judge who prelided at nifi pr'ius^ it is
difclofed to the court by affidavit ; if it arifes from what pafled
at the trial, it is taken from the judge's information ; who ufu-
ally makes a fpecial and minute report of the evidence. Counfel
are heard on both fides to impeach or eilablilh the verdict, and
the court give their reafons at large why a new examination ought
or ought not to be allowed. The true import of the evidence is
duly weighed, falfe colours are taken off, and all points of law
which arofe at the trial are upon full deliberation clearly ex-
plained and fettled.

N o R do the courts lend too eafy an ear to every application
for a review of the former verdi6t. They muft be fatisfied, tiiat
there are (trong probable grounds to fuppofe that the merits have
not been fairly and fully difcuffed, and that the decifion is not
agreeable to the juftice and truth cf the cafe. A new trial is not

granted.

39 2 Private Book III.

p-rantcd, where the value is too inconfiderable to merit a fecond
examination. It is not granted upon nice and formal objeclions,
which do not go to the real merits. It is not granted in cafes of
flricl right or fummum jus, wliere the rigorous exaction of ex-
treme legal jullice is hardly reconcileable to confcience. Nor is
it granted where the fcales of evidence hang nearly equal : that
which leans againft theformer verdict, ought always veryftrongly
to preponderate.

I N granting fuch farther trial (which is matter of found dif-
cretion) the court has alfo an opportunity, which it feldom fails
to improve, of fupplying thofe defects in this mode of trial which
were ftated in the preceding chapter ; by laying the party apply-
ing under all fuch equitable terms, as his antagonift Ihall defire
and mutually ojfFer to comply with : fuch as the difcovery of fome
facts upon oath ; the admiffion of others, not intended to be li-
tigated; the production of deeds, books, and papers; the exa-
mination of witneffes, infirm or going beyond fea ; and the like.
And the delay and expenfe of this proceeding are fo fmall and
trifling, that it never can be moved for to gain time or to gratify
humour. The motion muft be made within the firft four days of
thenext fucceedingterm, within which term it is ufually heard and
decided. And it is worthy obfervation, how infinitely fuperior to
all others the trial by jury approves itfelf, even in the very mode
of it's revifion. In every other country of Europe, and in thofe of
our own tribunals which conform themfelves to the procefs of
the civil law, the parties are at liberty, whenever they pleafe, to
appeal from day to day and from court to court upon cjueflions
merely of fa6l ; which is a perpetual fource of obftinate chicane,
delay, and expenfive litigation ^. With us no new trial is allowed

unlefs

q Not many years ago an appeal was termined in April 1749: the qvieftion being

brought to the houfe of lords from the court only on the property in an ox, adjudged to

of feflion in Scotland, in a caufe between be of the valu« of three guineas. No pique

Napier and Macfarlane. It was inftituted or fpirit could have made fuch a caufe, ia

in March 174s; and, (after many interlo- the court of king's bench or common pleas,

cutory orders and fentences below, appealed have laftcd a tenth of tlie time, or have colt

from and reheard as far as the courfe of a twentieth part of the cj;penic,
proceedings would admit) was finally dc-

Ch. 24. Wrongs. jp^

unlefs there be a manifeft miftake, and the fubjecl matter be wor-
thy of interpofition. The party who thinks himfelf aggrieved
may ftill, if he pleafes, have recourfe to his writ of attaint after
judgment ; in the courfe of the trial he may demur to the evi-
dence, or tender a bill of exceptions. And if the lirft is totally
laid afide, and the other tvi^o very feldom put in practice, it is
becaufe long experience has fliewn, that a motion for a fecond
trial is the Ihorteft, cheapelt, and moft effectual cure for all im-
perfections in the verdict; vi^hether they arife from the niiftakes
of the parties themfelves, of their counfcl or attornies, or even
of the judge or jury.

2. Arrests of judgment arife from intrlnflc caufes, appear-
ing upon the face of the record. Of this kind are, firfc, where
the declaration varies totally from the original writ ; as where
the writ is in debt or detinue, and the plaintiff declares in an
action on the cafe for an ajfumffit : for, the original writ out of
chancery being the foundation and warrant of the whole proceed-
ings in the common pleas, if the declaration does not purfue
the nature of the writ, the court's authority totally fails. Alfo,
fccondly, where the verdict materially differs from the pleadings
and iffue thereon ; as if, in an adion for words, it is laid in the
declaration that the defendant faid, " the plaintiff zV a bankrupt;"
and the verdict finds fpecially that he faid, '< the phintiff wiil be
a bankrupt." Or, thirdly, if the cafe laid in the declaration is
not fuflicient in point of law to found an adion upon. And this
is an invariable rule with regard to arrefts of judgment upon mat-
ter of law, " that whatever is alleged in arrelt of judgment mull
*' be fuch matter, as would upon demurrer have been fuilicienC
" to overturn the action or plea." As if, on an action for flander
in calling the plaintiff a Jew, the defendant denies the words,
and iffue is joined thereonj now, if a verdict be found for the
plaintiff, that the words were actually fpoken, whereby the fact is
eftablifhed, ftill the defendant may move in arreft of judgment,
that to call a man a Jew is not actionable : and, if the court be
of that opinion, the judgment fliall be arrefted, and never entered
Vol. Ill, " Bbb for

394 Private Book III.

for the plaintiff. But the rule will not hold e converfo, " that
" every thing that may be alleged as caufe of dennurrcr will be
*' good iriarreft oFjudgment:" for if a declaration or plea omits
to iiatefome particular circumftance, without proving of which
at the trialjitisimpofiible to fupport the action or defence, this
omillion lliall be aided by a verdict. As if, in an action of tref-
pafs, the declaration doth not allege that the trefpafs was com-
mitted on any certain day''j or if the defendant juftifies, by pre-
fcribing for a right of common for his cattle, and does not plead
that his cattle were levant 2ind couch ant on the land^; though
either of thefe defects might be good caufe to demur to the de-
claration or plea, yet if the adverfe party omits to take advantage
of I'lich omiffion in due time, but takes ilTue, and has a verdict
againfc him, thefe exceptions cannot after verdict be moved in ar-
reft of judgment. For the verdict afcertains thofe facts, which
before from the inaccuracy of the pleadings might be dubious ;
fmce the law will not fuppofe, that a jury under the infpection of
a judge would find a verdict for the plaintiff or defendant, unlefs
he had proved thofe circumftances, without which his general
allegation is defedive'. Exceptions therefore, that are moved in
arreil of judgment, muft be much more material and glaring
than fuch as will maintain a demurrer : or, in other words, many
inaccuracies and omiiilons, which would be fatal, if early obfer-
ved, are cured by a fubfequent verdict; and not fuffered, in the
laft (lage of a caufe, to unravel the whole proceedings. But if
the thing omitted be effential to the action or defence, as if the
plaintiff does not merely ftate his title in a defective manner, but
fets forth a title that is totally defective in itfelf ", or if to an action
otdebt the defendant pleads not guilty inttead of nil'dehet^\ thefe
cannot be cured by a verdict for the plaintiff in the firft cafe, or
for the defendant in the fecond.

If

r Carth. 3Sp. u Salk. 3(^5.

s Cvo. Jack. 44. w Cro. Eliz, 778.

Ch. 24. Wrongs. 395

#

I F, by the mifconducl or inadvertence of the pleaders, the
iffuc be joined on a fact totally immaterial, or ini'uflicient to de-
termine the right, fo that the court upon the finding cannot
know for whom jadgment ought to be given; as if, on an aclioa
on the cafe in «//^/;//y7/''againft an executor, he pleads that he
himfclf (inftead of the teftator) made no fuch promife'': or if, in
an aftion of debt on bond conditioned to pay money on or before
a certain diy, the defendant pleads payment o?i the day^ (which,
if found for the plaintifT, would be inconclulive, as it might have
been paid before) m thefe cafes the court will after verdicl award
a repleader, quod partes replacitent : unlefs it appears from the
whole record that nothing material can poiTibly be pleaded in any
Ihape whatfoever, and then a repleader would be fruitlefs^. And,
whenever a repleader is granted, the pleadings rrmft begin de novo
at that flage of them, whether it be the plea, replication, or
rejoinder, &"€, wherein there appears to have been the firil de-
feci, or deviation from the regular courfe*.

If judgment is not by fom.e of thefe mer.ns arrefted within
the firft four days of the next term aftei' the trial, it is then' to
be entered on the roll, or record. Judgments are the fenteuce
of the law, pronounced by the court upon the matter contained
in the record ; and are of four forts. Firii, where the facTcs are
confciTed by the parties, and the law determined by the court ;
as in cafe of judgment upon demurrer: fecondly, where the
law is admitted by the parties, and the facls difputed ; as in cafe
of judgment on a verdid : thirdly, where both the facl and the
law arihng thereon are admitted by the defendant : which is the
cafe of judgments by confejfion or default : or^ laftly, where the
plaintiff is convinced that either fact, or law, or both, are infufn-
cient to fupport his action, and therefore abandons or wiLhdrav,-s
his profecution ; which is the cafe in judgments upon a nonfuib
or retraxit.

Bbb2 ■ The

X 1 Ventr. ipiT. z 4 Barr. 301, 30Z.

y Stia. py4. a Rayin. 4^'3, Salk. 579.

39<^ Private Book III.

Th E judgment, though pronounced or awarded by the judges,
is not their determination or fentence, but the determination and
fentence oi the law. It is the conclufion that naturally and re-
gularly follows from the premifes of law and fact, which ftand
thus : againft him, who hath rode over my corn, I may recover
damages by law; but A hath rode over my corn ; therefore I
Ihall recover damages againft A. If the major proportion be de-
nied, this is a demurrer in law : if the minor, it is then an
iiTiie of facl : but if both be confefled (or determined) to be
right, the concluiion or judgment of the court cannot but fol-
low. Which judgment or conclufion depends not therefore on
the arbitrary caprice of the judge, but on the fettled and in-
variable principles of juftice. The judgment, in fhort, is the
remedy pre(cribcd by law for the redrefs of injuries ; and the
fuit or action is the vehicle or means of adminiftring it. What
that remedy may be, is indeed the refult of deliberation and
ftudy to point out, and therefore the ftile of the judgment is,
not that it is decreed or refolved by the court, for then the
judgment might appear to be their own :'but, " it is confidered,"
conjideratum ejl per cvriam, that the plaintiff do recover his da-
mages, his debt, his pofTeiHon, and the like: which implies
that the judgment is none of their own ; but the a<5l of law,
pronounced and declared by the court, after due deHberation and
enquiry.

All thefe fpecies of judgments are cither /;2/^r/ca^/<?ryor_/f-
Tiai. Interlocutory judgments are fuch as are given in the middle
of a caufe, upon fome plea, proceeding, or default, which is
only intermediate, and does not finally determine or complete the
fuit. Of this nature arc all judgments for the plaintifFupon
picas in abatement of the fuit or adion : in which it is confidered
by the court, that the defendant do anfwer over, rejpondcat oufter ;
that is, put in a more fubftantial plea''. It is eafy to obferve,
that the judgment here given is not final, but merely interlocu-
tory J

Saund.

30.

Ch. 24. Wrongs. 397

tory ; for there arc afterwards fartherproceedings to be had when
the defendant hath put in a better anfwer.

But the interlocutory judgments, moft ufually fpoken of, are
thofe incomplete judgments, whereby the right of the plaintiff
is indeed eftablifhed, but the quantum of damages fuftained by
him is not afcertained : which is a matter that cannot be done
without the intervention of a jury. As by the old Gothic con-
flitution the caufe was not completely finifhed, till the nemhda or
jurors were called iq^" ad executionem decretorum judicn^ ad aejli'
" mationempretii, damni^ lueri, 6"^".'* This can only happen where
the plaintiff recovers ; for when judgment is given for the de-
fendant, it is always complete as well as final. And this happens,
in the firft place, where the defendant fuffers judgment to go
againft him by default, or nibil dicit ; as if he puts in no plea
at all to the plaintiff's declaration : by confeffion or cognovit adi-
c«f;/z, where he acknowleges the plaintiff's demand to be juft :
or by nonfum infonnalus^ when the defendant's attorney declares
hehas noinftrudioES to fay any thing in anfwer to the plaintiff,
or in defence of his client ; which is a fpecies of judgment by
default. If thefe, or any of them, happen in actions where the
fpecific thing fued for is recovered, as in adlions of detinue or
debt for a fum or thing certain, the judgment is abfolutely com-
plete. And therefore it is very ufual, in order to ftrengthen a
bond-creditor's fecurity, for the debtor to execute a warrant of
attorney to any one, erapov/ering him to confefs a judgment by
either of the ways juft now mentioned (by nihil dicit, cogonvii
adionem, or non fum informatus) in an aclion of debt to be
brought by the creditor for the fpecific fum due : which judg-
ment, when confeffed, is abfolutely complete and binding. But,
where damages are to be recovered, a jury muft be called in to
affefs them ; unlefs the defendant, to fave charges, will cOnfefs
the whole damages laid in the declaration : otherwife the entry
of the judgment is, " that the plaintiff ought to recover hisda-
" mages, (indefinitely) but, becaufe the court know not what

damages

c Sticrnhook iejurc Coth, I, i.e. 4,

^98

Private Book III.

" damages the faid plalntifFIiatli fuftained, therefore the fheriff
" is commanded, that by the oaths of twelve honcft and lawful
*' men he enquire into the faid damages, and return fuch inquili-
*' tion (when taken) into court/* This proccfs is called a writ of \^
enquiry, in the execution of which the fheriff fits as judge, and
tries byajury, fubject to nearly the fame law and conditions as
the trial by jury at 7??/? /'r/W, what damages the plaintiff hath
really fuflained j and when their verdid is given, which muft af-
fefs fome damages (but to what amount they pleafe) the fheriff
returns the 'riquifition into court, which is ditered upon the roll
in manner oi 2l po/iea, and thereupon it is confidered, that the
plaintiff do recover the exa61: fum of the damages fo affeffed. In
like manner, udien a demurrer is determined for the plaintiff
upon an action wherein damages are recovered, the judgment is
alio incomplete, till a writ of enquiry is awarded to aflefs da-
mages, and returned j after which the judgment is com.pletely
entered.

Final judgments are fuch as at once put an end to the ac-
tion, by declaring that the plaintiff has either entitled himfelf,
or has not, to recover the remedy he lues for. In which cafe if
the judgment be for the plaintiff, it is alfo confidered that the
defendant be either amerced, for his wilful delay of juflice in
not immediately obeying the king's writ by rendering the plaintiff
his due""; or be taken up, capiatur, to pay a fine to the king,
in cafe of any forcible injury^. Though now by ftatute 5 & (j W.
&M. c. 12. no writ of capias fhall iffue for this fine, but the
plaintiff fhall pay 6s. Sd. and be allowed it againfl the defendant
among his other cofts. And therefore in judgments in the court
of common pleas they enter that the fine is remitted, and in the
court of king's bench they now take no notice of any fine or ca-
pias at alF. But if judgment be for the defendant, then it is con-
fidered, that the plaintiff and his pledges of profecuting be
(nominally) amerced for his falfc fuit, and that the defendant

may

i S Rep, 49. f Salk, 54. Cartli. 390.

e AppcnJ. N«. II. §. 4.

Ch. 24. Wrongs. 399

may go without a day, eat fine die, that is, Vvithont any farther
continuance or adjournment ; the king's writ, commanding his
attendance, being now fully fatislied, and his innocence publicly
cleared ^.

Thus much for judgments; to which cofts are a neceflary
appendage; it being now as well the maxim of ours as of the
civil law, that " viclus vidori in expenfis condemnandus ejl^,^*
Though the common law did not profeffedly allow any, the
amercement of the vanquiihed party being his only punifhment.
The firft ftatute which gave cods, eo nomine, to the demandant
in a real action was the ftatute of Gloucefter, 6 Edw. I. c. i.
as did the ftatute of Ivlarlbridge 52 Hen. III. c. 6. to the defend-
ant in one particular cafe, relative towardihipin chivalry: though
in reality cofts were always conlidered and inculded in the qua7i-
tuju of damages, in fuch actions where damages are given ; and
even now, cofts for the plaintiff are always entered on the roll as
increafe of damages by the court'. But, becaufe thofe damages
were frequently inadequate to the plaintift*'s expenfes, the fta-
tute of Gloucefter orders cofts to be alfo added; and farther di-
rects, that the fame rule fliall hold place in all cafes where the
party is to recover damages. And therefore in fuch actions where
no damages were then recoverable (as in quare i?npedit, in which
damages were not given till the ftatute of Weftm.2. 13 Edw. I.)
no cofts are now allowed'' ; unlefs they have been exprefsly given
by fome fubfcquent ftatute. The ftatute 3 Hen. VII. c. 10. was
the firft which allowed any cofts on a writ of error. But no
cofts were allowed the defendant in any fhape, till the ftatutes
23 Hen. VIII. c. 15. 4 Jac. I. c. 3. 8 & 9 W. III. c. 11. and
4 & 5 Ann. c. 16. which very equitably gave the defendant, if
he prevailed, the fame cofts as the plaintiff would have had, in
cafe he had recovered. Thefe cofts on both fides are taxed and
moderated by the prothonotary, or other proper ofEcer of the
court.

The

g Append. N°. TII..§. (J, i Append. N". II. §. 4.

h Cod. 3. I. 13. k 10 Rep. iiC.

400

Private

Book III,

The king (and any perfon fulng to his ufe') ftiail neither
pay, nor receive cofls: for, befides that he is not included un-
der the general words of thefe ftatutes, as it is his prerogative
not to pay them to a fubjecl, fo it is beneath his dignity to re-
ceive them. And it feems reafonable to fuppofe, that the queen-
confort participates of the fame privilege; for, in actions brought
by her, Ihe was not at the common law obliged to find pledges of
profecution, nor could be amerced in cafe there was judgment
againft her*". In two other cafes an exemption alfo lies from
paying cofts. Executors and adminiftrators, when fuing in the
right of the deceafed, fhall pay none". And paupers, that is
fuch as will fwear themfelves not worth five pounds, are, by
ftatute II Hen. VII. c. 12. to have original writs 2irA fubpoenas
gratis, and counfel and attorney affigned them without fee; and
are excufed from paying cofls, when plaintiffs, by the flatute
23 Hen. VIII. c. 15. but fhall fuffer other punifhment at the dif-
cretion of the judges. And it was formerly ufual to give fuch
paupers, if nonfuited, their election either to be whipped or pay
the cofls°: though that practice is now difufed^ It feems how-
ever agreed, that a pauper may recover cofls, though he pays
none; for the counfel and clerks are bound to give their labour
to i?;//7;, but not to his antagonifls*'. To prevent alfo trifling
and malicious adions, for words, for afTault and battery, and for
trefpafs, it is enacted by ftatutes 43 Eliz. c. 6. 21 Jac. I. c. i(5.
and 22 & 23 Car. II. c. 9. §. 136. that, where the jury who try
any of thefe actions fhall give lefs damages than 40 j. the plaintiff
Ihall be allowed no more cofts than damages, unlefs the judge
before whom the caufe is tried fhall certify under his hand on
the back of the record, that an adual battery (and not an afifault
only) was prqved, or that in trefpafs the freehold or title of the
land came chiefly in queftion. Alfo by ftatute 4& 5 W. &M,
c. 23. and 8 and 9 W. III. c. 11. if the trefpafs were committed

in

1 Stat. Z4 Hen. VIII. c. 8.

tn F. N. B. loi. Co. Liu. 133.

n Cro. Jac. ii$t

o I Sid. x6t. 7 Mod.

p Salk. S06.

q I £<.p. Caf. abr. 125.

IT4.

Ch. 24. Wrong s. 401

in hunting or fporting by an inferior tradefman, or if it appear
to be wilfully and malicioufly committed, the plaintiff fliall have
full cofts*^, though his damages as affeiTed by the jury amount
to lefs than 40 s.

After Judgment is entered, execution will immediately fol-
low, unlefs the party condemned thinks himfelf unjuftly ag-
grieved by any of thefe proceedings; and then he has his remedy
to reverfe them by feveral writs in the nature of appeals, which
we fhall confider in the fucceeding chapter.

r S«e pag. ai4, ixs> *

Vol. in, C c c

40 2 Private EookIIL

Chapter the twenty fifth.

O F PROCEEDINGS in t h e n a t u r e

o F APPEALS.

R O C E E D I N G S, in the nature oi appeals from the pro-,
ceedings of the king's courts of law, are of various kinds;
according to the fubjecl matter in which they are concerned.
They 2irj principally three.

Jj^cihw ^' A \Y R I T of attaint : which lieth to enquire Vv'hether a
jury of twelve m.en gave a falfe verdict'*; that fo the judgment
following thereupon may be.reverfed : and this mlift be brought
in the liKe-time of him for whom the verdict was given, and of
two at leafl.of the jurors who gave it. This lay, at the common
law, only upon verdicts in actions for fuch perfo'ial 'mjuries as did
not amount to trefpafs. For in r^^^/ wrongs the party injured had
red' efs by writ of right ; but, after verdict agciinft him in per-
fon^l fuits, he ha.d no other remedy : and it did not lie in ac-
ticns of trefpafs., for a \^t^^ ^extraordinary reafon ; becaufe, if the
verdicf was fet ah.ic, tiie king would lofe his fine^ But by fta-
tutc Wcftm. I. 3 Edw. I. c. 38. it wa^- given in all pleas of
land, franchife, 6r freehold : and, by feverai fubfcquent llatutes,

in

a Finch. L. 484. b Bro. Ah, t. attcint, 4*.

Ch. 25. Wrong s. 403

in the reigns of Edward 111% and his grandfon^ it was allowed
in al in oiVevery action, except in a writ of right; for there no
attaint lay, either by common law or llatute, becaufe it was de-
termined by the grand aflife, confifting ofy;,v/^^,7 jiirorr/.

The jury who are to try this falfe verdi(fl mull: be twenty
four, and are called the grand jury ; for the law wills not that
the oath of one jury of twelve men Ihould be attainted or fet
alidc by an equal number, nor by lefs indeed than double the
former. And he that brings the attaint can give i:io other evi-
dence to the grand jury, than what was originally given to the
petit. For as their verdi(!^l: is now trying, aiid the* quclHon is
whether or no they did right upon the evidence that appeared to
them, the law judged it the higheft abfurdity to produce any
fubfequent proof upon fuch trial, and to condemn the prior ju-
rifdiclion for not believing evidence which they never knew.
But thofe againft v^diom it is brought are allowed, in aiTirmancc
of the firii verdicl, to produce new matter^: becaufe the petit
jury may ha^?e formed their verdict upon evidence of their own
knowledge, whicii never appeared in court ; and becaufe very
terrible was the judgment which the common law inflicted upon
them, if the grand jury found their verdicl a falfe one. The
judgment was, i. That they lliould lofe their ///^(^r^-z/z/^^^;?;, and
become for ever infamous. 2. That they iliould forfeit all their
goods and chattels. 3. That their, lands and tenements ftiould
be feifed into the king's hands. /\. That their wives and chil-
dren fiiould be thrown out of doors. 5. That their houfes fhould
be rafed and thrown down. 6. 1'liat their trees fliould be rooted
up.' 7. That their .meadows ihould be ploughed. 8. That their
bodies Ihould be caft into gaol. p. That the party fliould be
reftored to all that he loft by reafon of the unjuft verdict." But
as the feverity of this punifhment had its ufual efiecl, in pre-
venting the law from being executed, therefore by the flatute

C c c 2 ' II Hen^ VIL

c Stat. I EJw. HI. c. 6. s E<Uv. III. c. 7. e Rro. Al<r. t. aiJcir.t. 43.

j3 Edw. in c. S. 3+ EJw, III. c. 7. t" finch. L, 4SC.

4 Stit. 9 Ric. il. c. 3.

404 P R ivV A T E Book III.

II Hen. VII. c. 24. revived by 23 Hen. VIII. c. 3. a more mo-
derate puniilmieiit was inflicled upon attainted jurors ; viz. per-
petual infamy, and, if the caufe of adion were above 40/.
value, a forfeiture of 20/. apiece by the jurors j or. if under
40/, then 5/. apiece; to be divided between the king and the
' par':y injured. So that a man may now bring an attaint either
upon the flatute or at common law, at his election^; and in
both of them may reverfe the former judgment. But the prac-
tice of fetting afide verdicfs upon motion, and granting neu>
trials, has fo fuperfeded the ufe of both forts of attaints, that I
have not obferved any inftanceof an attaint in our books, later
than the iixteenth century^ By the old Gothic conftitution inr
deed no certificate of a judge was allowed, in' matters of evi-
dence, to countervail the oath of the jury : but their verdicl,
however erroneous, was abfolutely final and conclufive. " Testes
'■' funt de judice et de aBis ejus-, Judex vero de if:fis vicijjlm tedari
'' nonpoiejl, vere an falfo jiirent : qualicunque fnim eorum ajfert'ioni
«' jlandumejl ct jiidkandumr Yet they had a proceeding, from
v.*hence our attaint may be derived. If, upon a lawful trial be-
fore a fuperior tribunal, they were found to have given a falfe
verdict, they w.ere fined, and rendered infamous for the future.
" ^itamem evidently argumentofidjum jurajfe convincantur {id quod
^^ Juperiui judicium cognofc ere debet) nndclantur in bonis, decqetero
^^ perjuriet inteJiabilesK"

JliitlikaU^}^- -^^ audita querela is where a defendant, againft whom
' judgment is recovered, and who is therefore in danger of exe-
cution, or perhaps actually in execution, may be relieved upon
good matter of difcharge, which has happened fince the judg-
ment: as if the plaintiff hath given him a general rdeafe; or
if the defendant hath paid the debt to the plaintiff, without en-
tering f.UisfacTiion on the record. In thefe and the like cafes,
wherein the defendant hath good matter to plead, but hath had
no opportunity of pleading it, (either at the beginning of the

fuit,

,T , ir;',< !.•;/(.. ' i Stlernhook di jure Gcth. I. i~ c. 4.

I; :5Pv M. 3J & 2^; EHj:. Cio. Eljz. 3op.

Ch. 25. Wrong s. 405

fuitj or puis darrein contimiance, which, as was fliewn in a for-
mer chapter", muft always be before judgment) an audita
querela lies, in the nature of a bill in equity, to be relieved
againft the oppreflion of the plaintiff. It is a writ directed to
the court, ftating that the complaint of the defendant hath
been heard, audita querela defer.deiitis, and then fetting out the
matter of the complaint, it at length enjoins the court to call
the parties before them, and, having heard their allegations and
proofs, to caufejuftice to be done between them'. Italfo lies
for bail, when judgment is obtained againft them hyfcire fa-
cias to anfwer the debt of their principal, and it happens after-
wards that the original judgment againft their principal is rever-
fed : for here the bail, after judgment had againft them, have
ijo opportunity to plead this ipecial matter, and therefore they
Ihall have redrefs by audita querela'"^ ; w^hich is a writ of a moll
remedial nature, and feems to have been invented, Idl in any
• cafe there fhould be an oppreflive defecT: of juftice, where a party-
has a good defence, but by the ordinary forms of law had no
opportunity to make it. But the indulgence now fhewn by the
courts in granting a fummary relief upon motion, in cafes of fuch
evident opprefiion", has almoft rendered ufelefs the writ of au-
dita querela, and driven it quite out of practice.

III. But, thirdly, the principal method of redrefs for erro-
neous judgments in the king's courts of record, is by ivtit of er^
ior to fome fuperior court of appeal.

A WRIT of error " lies for fome fuppofed miftake in the pro-
ceedings of a court of record; for,to amend errors in a bafe court,
not of record, a WTit oi falfe judgment lies". The writ of error
only lies upon matter of law aiifing upon the face of the pro-
ceedings : fo that no evidence is required to fubftantiate or fup-
port it : and there is no method of reverfmg an error in the de-
termination

k See pag. 317, n Lord Raym. 439.

1 Finch. L. 488. F. N. B. iCi. o Append. N°. III. §. C,

ni I Roll. Abr. "3e3. P irinch. L. 484.

406

Private Book III.

termination o^faSls, but by an attaint, or a new trial, to corre<ft
the miltakes of the former verdid.

Formerly the fuitors were much perplexed by writs of
error brought upon very flight and trivial grounds, as mis-fpel-
iings and other miftakes of the clerks, all which might be
amended at the common law, while all the proceedings were in
faper^y for they were then confidered as pnly mjien, and there-
fore fubjed to the control of the courts. But, when once the
record was made up, it was formerly held, that by the common
law no amendment could be permitted, unlefs within the very
term in which the judicial ad: fo recorded was done: for
during the term the record is in the breaft of the court ; but af-
terwards it admitted of no alteration^ But now the courts are be-
come more liberal; and, where juftice requires it, will allow of
amendments at any time while the fuit is depending, notwith-
ilanding the record be made up, and the term be paft. For they
at prcfcnt confider the proceedings as in Jier'i, till judgment is
given; and therefore that, till then, they have power to permit
amendments by the common law: but when judgment is once
given and enrolled, no amendment is permitted in any fubfequent
term*. Miftakes are alfo effcdually helped by the ftatutes of
amendment and y^?/^7//j-: fo called, becaufe when a pleader per-
ceives any flip in the form of his proceedings, and acknowleges
fucii error (^jeofaile) he is at liberty by thofe ftatutes to amend
it ; which amicndment is feldom adually made, but the benefit
of the ads is attained by tlie court's overlooking the exception\
Thefe ftatutes are many in number, and the provifions in
them too minute to be here taken notice of, otherwife than
by referring to the ftatutes themfelves"; by which all trifling
exceptions are fo thoroughly guarded againft, that VvTits of error
cannot now be maintained, but for fome material miftakc afTigned.

1 H 1 S

q 4 Burr. iop9. 4 Hen. VI. c. 3. 0 Hen. VT. c. u. & i^.

r Co. Litt. x6o. 3z Hen. VIII. c. 30. iSEliz.c. 14.11 Jar, I.

s Slat, u Hen. IV. c. 3. c. 13. 16 & 17 Car. II. c. 8, (ftikd m

t Stra. 1011. J Ventr. 100. an omnipotent aft) 4 & S Anu,

u Stat. 14 Eiivv. HI. c. C. p Hen. V. c. 4, c. 16. $. Ann. c, ;o. s Geo. I. c. 13.

Ch. 25. Wrongs. ^07

■»■■

This is at prcfent the general doctrine of amendments; and
it's rife andhiflory arefomewhat curious. In the early ages of our
jurifprudence, when all pleadings were ore tenus, if a flip was
perceived and objected to by the oppofite party or the court, the
pleader inftantly acknowleged his error and recllfied his plea;
which gave occafion to that length of dialogue reported in the
antient year-books. So liberal were then the fentiments of the
crown as well as the judges, that in the ftatute of Wales, made
at Rothelan, izEdv/. I. the pleadings are directed to be carried
on in that principality, y//2f cahi?7ipnia verborum^ non obfervata ilia
dura confuetudlne, " qui cadit afyllaha cadit a iota caiifa,''' The
judgments were entered up immediately by the clerks and officers
of the court; and, if any mif-entry was made, it was redified
by the minutes or the remembrance of the court itfelf.

When the treatlfe by Britton was publifhed, in the name and
by authority of the king, (probably about the 1 3 Edw. I. be-
caufe the laft flatutes therein referred to are thofe of Winchefter
and Weftminfter the fecond) a check fcems intended to be given
to the unwarrantable practices of fome judges, who had made
falfe entries on the rolls to cover their own mifbehaviour, and
had taken upon them by amendments and rafurcs to falfify their
own records. The kinir therefore declares " that " althou2:h we
" have granted to our juftices to make record of pleas pleaded
" before them, yet we will not that their own record fliall be a

warranty for their own wrong, nor that they may rafe their
" rolls, nor amend them, nor record them, contrary to their
" original enrollment." The whole of which, taken together, .
amounts to this, that a record furreptitioufly or erroneoufly
made up, to ftifle or pervert the truth, fliould not be a fandion
for error ; and that a record, originally made up according to the
truth of the cafe, Ihould not afterwards by any private rafure or
amendment be altered to any fmifter purpofc.

But

Y Bilt, po'im. i, 3.

■* a

o

3

Private

Book III.

But when afterwards king Edward, on liis retufn frotn his
French dominions in the feventeenth year of his reign, after up-
wards of three years abfence, found it neceffary (or convenient) td
profecute his judges for their corruption and other mal-praclices,
the perverfion of judgments* by erafing and altering records was
one of the caufes affigned for the heavy punifhments infiided
upon ahuoft all the king's juftices, even the moft able and up-
rio-ht''. The feverity of which proceedings feems fo to have
alarmed the fucceeding judges, that, through a fear of being faid
to do wrong, they helicated at doing that which was right. As
it was fo hazardous to alter a record, even from companionate
motives, (as happened in Hengham's cafe, which inflriclnefs was

certainly

v» Judtcia perverteruni, et in aliis crravc-
runt, (Matth. Weft. A. D. izSp.)

X Among the other judjjes, fir Ralph
Henjfham chief jurtice of the king's bench
is faid to have b«en fined 7000 marks, fir
Adam Stratton chief baron of the exche-
quer-3.J.000 marks, and Thomas Wayli;id
cKief jufiice of the common pleas to have
been attainted of felony, and to have ab-
jured the realm, with a forfeiture of all his
eftates ; the whole amount of the forfeitures
heme upwards of 1 00000 marks, or 70000
pounds, (3 Pryn. Rec. 401, 401-) An in-
credible fum in thofe days, before paper
credit was in ufe, and when the annual fa-
lary of a chief juftice was only fixty marks,
{Clauf. 6. Edw. J. m. 6. Dugd. chron.fer.
iO.) The chdrge againfl; fir Ralph Hcn-
gham (a very learned judge, to whom we
are oblig;ed for two excillent treatifes of
praftice) was only, according to a tradi;.on
that was current in Richard the third's time,
(Yearbook, M. a Rk. III. 10) his altering
out of mere companion a fine, which was
fet upon a very poor man, from \p. ^d. to
Cs. 8d. for which he was fined 800 marks ;
a more probable fum than 7000. It is true,

the book calls the judge fo punidicd Jn^am
and not Hcngham: But I find no judge of
the name of Ingham in Dugdale's Series ;
and fir Edward Coke (4 laft, 155.) and fir
Matthew Hale (i P. C. 646.) undcrftand it
to have been the chief jufiice. And cer-
tainly his offence was nothing very atiocions
or difgraceful : for though removed from
the king's bench at this time (together wilh
the reft of the judges) we find him about
twelve years afterwards made chief juftice
of the common pleas, {Pat. 29 Edw, I. m. 7.
Dugd. chron. Jcr. 31.) in which office he
continued till his death in a Edw. II. {Clatif.
1 Ed-w. II. m. 19 Pat. X Edw. II. p. i m. 9.
Dugd. 34. Selden. pref. to Ilengham.)
There is an appendix to this tradition, re*
membered by juftice Southcote in the reign
of queen Elizabeth: (3 Inft. 71.4 Inft. iJi.)
that with this fine of chief juftice Hcngham
a clock houfe was built at Weftmmfter, and
furnifhed with a clock, to he heard into
Weftminfter-hall. Upon which ftory I ftiali
only remark, that the firft introdu£"tion of
clocks was not till an hundred years after-
wards, about the end of the fourteenth
century, (Enc^'clopcdic, tit. horloge.)

Ch. 25. Wrongs. 409

certainly indefenfiblc) they refolved not to touch a record any
more; but held that even palpable errors, when enrolled and the
term at an end, were too iacred to be rectified or called in quel-
tion: and, becaufe Britton had forbidden all criminal and clan-
deftine alterations, to make a record fpeak a falfity, they concei-
ved that they might not judicially and publicly amend it, to
make it asrreeable to truth. In Edward the third's time indeed

o

they once ventured (upon the certificate of the juftice in eyre)
to ellreat a larger fine than had been recorded by the clerk of
the court below ' : but, ioftead of amending the clerk's erro-
neous record, they made a fecond enrollment of what the juf-
tice had declared ore tenus ; and left it to be fettled by pofterity
in which of the two rolls that'abfolute verity refides, which every
record is faid to import in itfelf \ And, in the reign of Richard
the fecond, there are inftances"' of their refufing to amend the
moft palpable errors and mif-entries, unlefs by the authority of
parliament.

To this real fullennefs, but affecled timidity, of the judges
fuch a narrownefs of thinking was added, that every flip (even
of a fyllable or a letter^) was now held to be fatal to the pleader,
and overturned his client's cauie^ Ir they durfl: not, or would
not, fet right mere formal miftakes at any time upon equitable
terms and conditions, they atleaftfliould have held, that trifling
objections were at all times inadmifiible ; and that more fohd
exceptions in point of form came too late when the merits had
been tried. They might, through a decent degree of tendernefs,
have excufed themfelves from amending in criminal, and efpe-
cially in capital, cafes. They needed not have granted an amend-
ment, where it would work an injuftice to either party; or where
he could not be put in as good a condition, as if his adverfary

had
Vol. III. Ddd

y I Hal. P. C. (S47. c In thofe days it was flriftly true, what

z I Leon. 183. Co. Litt. 117. See pag. Ruggle (in his ignoramus) has humoroufly

,,j, applied to more modern pleadings ; " in

a I Hal. P. C. S48. " noftra leg( unum comma evertit totutn j^laci-

1) Stat. 14 Edw. 111. c. 6. •' t«m.'[

410 Private Book III.

had made no miftake. And, if it was feared that an amendment
after trial might fubjecl the jury to an attaint, how eafy was it
to make waiving the attaint the condition of allowing the amend-
ment! And yet thefe were among the abfiird reafons alleged for
never fuflerinof amendments at all''!

't>

The precedents then fet were afterwards moft fcriipuloufly
followed % to the great obftruction ofjuftice, and ruin of the
fuitors; who have formerly fuffered as much by thefe obftinate
fcruples and literal ftrictnefs of the courts, as they could have
done even by their iniquity. After verdicls and judgments upon
the merits, they were frequently reverfed for flips of the pen or
mif-fpellings: and juftice was perpetually entangled in a net of
mere technical jargon. The legiflature hath therefore been forced
to interpofe, by no lefs than twelve ftatutes, to remedy thefe
opprobrious niceties: and it's endeavours have been of late fo
well feconded by judges of a more liberal caft, that this unfeemly
degree of ftrictnefs is almoft entirely eradicated ; and will proba-
bly in a few years be no more remembered, than the learning of
effoins and defaults, or the counterpleas of voucher, are at pre-
fent. But, to return to our writs of error.

Ira writ of error be brought after verdict, he that brings the
•writ, or that is plaintiff in error, muft in moft cafes find fub-
ftantial pledges of profccution, or baiF: to prevent delays by
frivolous pretences to appeal; and for fecuring payment of cofts
and damages, which are now payable by the vanquiHied party
in all, except a few particular, inftances, by virtue of the feveral
flatutes recited in the margin ^.

A WRIT of error lies from the inferior courts of record in
England into the king's bench"", and not into the common

pleas *.

A Styl. 207. g 3 Hen. VII. c. 10 13 Car. II. c. *.

c 8 Rep. is<5, &c, 8 & 9. W. III. c. 11. 4& 5 Ann. c. 16.

f Stat. 3 Jac. I. c. 8. 13 Car. II. c. *. h See chap. 4.

16 & 17 Car. II. c. 8.

Ch. 25. Wrongs. 411

pleas'. Alfo from the king's bench in Ireland to the king's
bench in England. It likewife may be brought from the com-
mon pleas at Weftminfter to the king's bench ; and then from
the king's bench the caufe is rcmoveable to the houfe of lords.
From proceedings on the law fide of the exchequer awrk of er-
ror lies into the court of exchequer chamber before the lord
chancellor, lord treafurer, and the judges of the court of king's
bench and common pleas: and from thence it lies to the houfe
of peers. From proceedings in the king's bench, in debt, de-
tinue, covenant, account, cafe, ejectment, or trefpafs, originally
beguiT therein (except where the king is party) it lies to the ex-
chequer chamber, before the juftices of the common pleas, and
barons of the exchequer; and from thence alfo to the houfe of
lords" : but where the proceedings in the king's bench are com-
menced by originafwrit, fuedout of chancery, (which mufl be
for fome forcible injury, in which the king is fuppofed to be a
party, in order to'^'punifh the trefpafs committed in a criminal
manner) this takes the cafe out of the general rule laid down
by the ftatute ; fo that the writ of error then lies, without any
intermediate flage of appeal, direclly to the houfe of lords, the
dernier refort for the ultimate decifion of every civil adion. Each
court of appeal, in their refpe<5live ftages. may, upon hearing the
matter of law in which the error is affigned, reverfe or affirm
the judgment of the inferior courts; but none of them are
final, fave only the houfe of peers, to whofe judicial deciiions
all other tribunals muft therefore fubmit and conform their own.
And thus much for reverfal or affirmance of judgments by writs
in the nature of appeals.

i Finch. L. 480. Dyer. sjo. k Stat, xj Elli. c. 8,

Ddd2

412

R I V A T E

Book IIL

Chapter the twenty sixth.
Of execution.

IF the regular judgment of the court, after the decifion of the
fuit, be not fufpended, fuperfeded, or reverfed, by one or
other of the methods mentioned in the two preceding chapters,
the next and laft ftep is the execution of that judgment ; or,
putting the fentence of the law in force. This is performed in
different manners, according to the nature of the adion upon
which it is founded, and of the judgment which is had or re-
covered.

If the plaintiff recovers in an action real or mixed, wherein
the feifm or pofTeflion of land is awarded to him, the writ of
execution fhall be an habere facias feifmam^ or writ of feifin, of
a freehold ; or an habere facias peffejjionetn, or writ of pofref3ion%
of a chattel interefl''. Thefe are writs directed to the fheriff of
the county, commanding him to give actual pofTeflion to the
plaintiff of the land fo recovered : in the execution of which,
the fheriff may take with him the pojfe cojnitatus, or power of
the county ; and mayjulHfy breaking open doors, if the poffef-
iion be not quietly delivered. But, if it be peaceably yielded
up, the delivery of a twig, a turf, or the ring of the door, in
the name of feifin, is iufiicient execution of the writ. Upon a
prefentation to a benefice recovered in a qitare im^edit, or afllfe

of

a Append. N°. II. §. 4'

b Finch. L. 470.

Ch. 26. Wrongs. 413

oi darrein prefentment, the execution is by a writ de clerlco ad-
mitt endo ; direded, not to the flieriff, but to the bifhop or his me-
tropolitan, requiring them to admit and inftitute the clerk of the
plaintiff.

In other adions where the judgment is, that fomething in
fpecialbe done or rendered by the defendant, then, in order to
compel him fo to do, and to fee the judgment executed, a fpecial
writ of execution iffues to the fheriff according to the nature of
the cafe. As upon an allife or quod permit tat projlernere for a
nufance, where one part of the judgment is quod ainoveatur, a
writ goes to the flieriff to abate it at the charge of the party,
which likewife iffues even in cafe of an indiclment*". Upon a
replevin the writ of execution is the writ de retorno habendo^; and,
ifthediflrefs be eloigned, the defendant fliall have a capias in
withernaiif, but, on the plaintiff's tendering the damages and
fubmitting to a line, the procefs in ivitheriiam Ihall be flayed^
In detinue, after judgment, the plaintiff fhail have a dijlringas,
to compel the defendant to deliver the goods, by repeated dif-
treffes of his chattels'^; or elfe a fcire facias againfl any third
perfon in whofe hands they may happen to be, to fhew caufe
why they fhould not be delivered: and, if the defendant ftill
continues obftinatc, the fheriff fhall furamon an inquefl to af-
certain the plaintiff's damages, which fhall be levied (like other
damages) by feifure of the perfon or goods of the defendant.
So that, after all, in replevin and detinue, (the only adlions for
recovering fpecific poffeflion of perfonal chattels) if the wrong-
doer be very perverfe, he cannot be compelled to a reilitution of
the identical thing taken or detained j but he f^ill has his eledion,
to deliver the goods or their value'': an imperfection in the law,
that refults from the nature of perfonal property, which is eafily
concealed or conveyed out of the reach of juftice, and not, like
land and other real property, alv/ays amefnable to the magiflrata.

^ EXECU-

Comb. 10. f 1 Leon. 174.

d Seepag. 150. g i l^oU Abr. 737. Raftal.. Entr. aij.

c See pa,!^. 148. . h Kcilw. 64.

414 Private Book IIL

Executions in acbions where money only is recoveied, as
a debt or damages (and not any Ipecific chattel) aj-e of five
forts : either againil the body of the defendant ; or againft his
goods and chattels ; or againft his goods and the profits of his
lands; or againft his goods and tho. fojjeffion of his lands ; or
againft all three, his body, lands, and goods.

I. The firft of thefe fpecies of execution, is by writ of r^-
pias ad fatisfaciendu7n'\ which diftinguifhes it from the former
capias ad refpondendum^ which lies to compel an appearance at
the beginning of a fuit. And, properly fpeaking, this cannot
be fued out againft any but fuch as werehable to be taken upon
the former f^j^/W. The intent of it is, to imprifon the body
of the debtor till fatisfaclion be made for the debt, cofts, and
damages : it therefore doth not lie againft any privileged per-
sons, peers or members of parliament, nor againft executors or
adminiftrators, nor againft fuch other perfons as could not be
originally held to bail. And fir Edward Coke alfo gives as a
fingular inftance', where a defendant in 14 Edw. III. wasdif-
charged from a capias becaufe he was of fo advanced an age,
quod poenam imprijonamenti Juh'ire non potejl. If an adion be
brought againfl an hufband and wife for the debt of the wife,
when fole, and the plaintiff recovers judgment, the capias fhall
iffue to take both the hufband and wife in execution": but, if
the adion was originally brought againft herfelf, when fole, and
pendingthc fuit fhe marries, the capias Ihali be awarded againft
Iier only, and not againft her hufband". Yet if judgment be
recovered againft an hufband and wife for the contrad, nay even
for the perfonal mifbehaviour", of the wife during her coverture,
the capias fhall iffue againft the hufband only : which is one of
thegreateft privileges ofEnglifh wives.

The

i Append. N". IIL %• li . *" Moor. ^04.

k 3 Rep. IX. n Cro. Jac. 313.

I { Infl. j8p, - o Cro. Car. 513.

Ch. 26. Wrongs. 415

T H E writ of capias ad falls f ad endum is an execution of the
higheft nature, in as much as it deprives a man of his liberty-
till he makes the fatisfaclion awarded ; and therefore, when a
man is once taken in execution upon this writ, no other procefs
can be fued out againft his lands or goods. Only, by ftatute
21 Jac. I. c. 24. if the defendant dies, while charged in execu-
tion upon this writ, the plaintiff may, after his death, fue out
new executions againft his lands, goods, or chattels. The writ
is directed to the Iheriff, commanding him to take the body of
the defendant and have him at Weftminfter, on a day therein
named, to make the plain tiff fatisfaclion for his demand. And,
if he does not then make fatisfadion, he muft remain in cuftody
till he does. This writ inay be fued out, as may all other exe-
cutory procefs, for cofts, againft a plaintiff as well as a defend-
ant, when judgment is had againft him.

W H E N a defendant Is once in cuftody upon this procefs, he
is to be kept in arda et falva cujlodia : and, if he be afterwards
feen at large, it is an ejcape ; and the plair)tiff may have an ac-
tion thereupon againft the flieriff for his whole debt. For though,
upon arrefts and what is called w^^?^ procefs, being fucli as inter-
venes between the commencement and end of a fuit% the flie-
riff,till the ftatute 8 &9 W. III. c. 27. might have indulged the
defendant as he pleafed^ fo as he produced him in court to an-
fwer the plaintiff at the return of the writ : yet, upon a taking
in execution, he could never give any indulgence; for, in that
cafe, confinement is the whole of the debtor's puniihment, and
of the fatisfaclion made to the creditor, Efcapes are either vo-
luntary, or negligent. Voluntary are fuch as are by the exprefs
confent of the keeper, after which he nevercari retake his prifoner
again'', (though the plaintiff may retake him at any time') but
the fheriff muft anfwer for the debt. Negligent efcapes are
where the prifoner efcapes without his keeper*s knoYvlege or
confent; and then upon frefli purfuit the defendant may be re-
taken,

P ^ee pair. 179. r Stat. 8 & g W. III. c. jy.

1 3 Rep. ji. \ Sk'.. 330.

^i6 Private Book III.

taken, and the flierifFfliall be excufed, if he has him again be-
fore any action brought againft himfelf for the efcape*. A refcue
of a prifoner in execiitioji, either going to gaol or in gaol, or a
breach of prifon, will not excufe the fheriff from being guilty
of and anfwering for the efcape; for he ought to have sufficient
force to keep him, feeing he may command the power of the
county ^ But by flatute 32 Geo. II. c. 28. if a defendant, changed
in execution for any debt lefs than 100/, will furrender all his
efFe61:s to his creditors, (except his apparel, bedding, and tools
of his trade, not amounting in the whole to the value of 10/.)
and will make oath of his punctual compliance v/ith the flatute
the prifoner may be difcharged, unlefs the creditor infills on de-
taining him; in which cafe he fhall allow him 2j. ^d. per
week, to be paid on the firft day of every week, and on failure
of regular payment the prifoner fhall be difcharged. Yet the
creditor may at any future time have execution agalafl the lands
and goods of the defendant, though never more againft his per-
fon. And, on the other hand, the creditors may, as in cafe of
bankruptcy, compel (under pain of tranfportation for feven years)
fucii debtor charged in execution for any debt under 100/, to
make a difcovery and furrender of all his effects for their bene£t 5
whereupon he is alio entitled to the like difcharge of his perfon.

I F a capias ad fatis faciendum is fued out, and a 7ion ejl inventus
is returned thereon, the plaintiff may fue out a procefs againfl
the bail, if any were given : who, we may remember, ffipu-
lated in this triple alternative ; that the defendant Ihould, if
condemned in the fuit, fatisfy the plaintiff his debt and cofls ;
or, that he Ihould furrender himfelf a prifoner ; or, that they
would pay it for him : as therefore the two former branches of
the alternative are neither of them complied with, tlie latter muft
immediately take place". In order to which a writ oijcire fa-
cias may be fued out againft the bail, commanding them to fhew
caufe why the plaintiff fhould not have execution againft them

for

s F. N. B. 130. "U L«tw. ii(Jp — 1173.

t Cro. Jac. 4ip.

Ch. 26. Wrongs. 417

for his debt and damages : and on fuch writ, if they fliew no
fullicicnt caufc, or the defendant does not furrender himfelf on
the day of the return, or of fhewing caufe (for afterwards is not
fulllcient) the plaintifi'may have judgment againft the bail, and
take out a writ of capias ad falls faciendum^ or other procefs of
execution againft them.

2. T PI E next fpecies of execution is againft the goods and
chattels of the defendant ; and is called a writ oi Jicn facias %
from the words in it where the flieriff" is commanded, quod fieri
faclat de bonis ^ that he caufe to be made of the goods and chat-
tels of the defendant the fum or debt recover,ed. This lies as
well againft privileged perfons, peers, &c^ as other common
pcrfons ; and againft executors or adminiftrators with regard to
the goods of the deceafed. Theftieriif may not break open any
outer doors'', to execute either this, or the former, writ : but
muft enter peaceably ; and may then break open any inner door,
belonging to the defendant, in order to take the goods ^. And
he may fell the goods and chattels (even an eftate for years, Vv'hich
is a chattel real ^) of the defendant, till he has raifed enough to

' fatisfy the judgment and cofts: firft paying the landlord of the
premifes, upon which the goods are found, the arrears of rent
then due, not exceeding one year's rent in the whole \ If part
only of the debt be levied on a fieri facias^ the plaintiff may
have a capias ad falifacle/idum for the rcMue^,

3. A THIRD fpecies of execution is by writ of levari facias ;
which affects a man's goods and the profits of his lands, by com-
manding the Iheriff to levy the plaintiff's debt on the lands and
goods of the defendant ; whereby the fheriff may feife all his
goods, and receive the rents and profits of his lands, till fatis-
faftion be made to the plaintiff ^ Little ufe is now made of this

Vol. III. ]^ e e writ j

w Append. N°. III. §.7. a Stat. 0 Ann. c. 14.

X s Rep. 9z. b I Roll. Abr, 904. Cro. Eliz. 344,

y Palm. 54. c Finch. L. 471.

z 8 Rep. 171.

4i8 Private Book III.

writ ; the remedy by elegit, which takes poffefiion of the lands
themfelves, being much more efFedual. But of this fpecies is a
writ of execution proper only to eccleSaftics ; which is given
when the fherifF, upon a common writ of execution fued, returns
tliat the defendant is a beneficed clerk, not having any lay fee.
In this cafe a writ goes to the bifiiop of the diocefe, in the
nature of a levari or fieri facias '\ to levy the debt and damages
de bo7iis ecclefiaflicis, which are not to be touched by lay hands :
and thereupon the biihop fends out 2. fequejlration of the profits
of the clerk's benefice, directed to the churchwardens, to col-
led the fame and pay them to the plaintiff, till the full fum be
raifed %

4. The fourth fpecies of execution is by the writ of elegit ;
which is a judicial writ given by the ilatute Weftm. 2. 13 Ed w. I.
c. To. either upon a judgment for a debt, or damages; or upon
the forfeiture of a recognizance taken in the king's court. By
the common law a man could only have fatisfadion of goods,
chattels, and the prefent profits of lands, by the two iaft men-
tioned writs oi feri facias, ov levari facias \ but not the po/fef-
lion of the lands themfelves: which was a natural confequence
of the feodal principles, which prohibited the alienation, and
of courfe the incumbring of the fief with the debts of the
owner. And, when the refiridion of alienation began to wear
as^'ay, the confequence ftill continued ; and no creditor could
take the poffefiion of lands, but only levy the growing profits:
fo that, if the defendant aliened his lands, the plaintiff was oufted
of his remedy. The ftatute therefore granted this writ, (called
an elegit, becaufe it is in the choice or eledion of the plaintiff
whether he will fueout this writ or one of the former) by which
the defendant's goods and chattels are not fold, but only ap-
praifed ; and all of them (except oxen and beafts of the plough,
are delivered to the plaintiff, at fuch reafonable appraifement
and price, in part of fatisfadion of his debt. If the goods are

not

d Re^iJ}r. orig. ^oo.juHic. 3,1. z Infl. 4. c » Burn. cccJ, law. ^ip.

Ch. 26. Wrong s'.

419

not fuflicient, then the moiety or one half of his freehold lands,
whether held in his own name, or by any other in trull for him%
are alfo to be delivered to the plaintiff; to hold, till out of the
rents and profits thereof the debt be levied, or tiH the defend-
ant's interefl be expired : as, till the death of the defendant,
if he be tenant for life or in tail. During this period the plain-
tiff is called tenant by elegit, of whom we fpoke in a former
part of thefe commentaries^. We there obferved that till this
flatute, by the antient common law, lands were not liable to be
charged with, or feifed for, debts ; becaufe by this means the
connedlion between lord and tenant might be deflroyed, fraudu-
lent alienations might be made, and the fervices be transferred
to be performed by a ftranger ; provided the tenant incurred a
large debt, fuiEcient to cover the land. And therefore, even by
this flatute, only one half was, and now is, fubjecl to execution ;
that out of the remainder fulScient might be left for the lord to
diflrein upon for his fervices. And, upon the fame feodal prin-
ciple, copyhold lands are at this day not liable to be taken in
execution upon a judgment*". But, in cafe of a debt to the
king, it appears by magna carta, c. 8. that it was allovved by the
common law for him to take poiTeilion of the lands till the debt
was paid. For he, being the grand fuperior and ultimate propri-
etor of all landed eflates, might feife the lands into his own hands
if any thing was owing from the vafal ; and could not be laid to
be defrauded of his fervices, when the oufter of the vafal pro-
ceeded from his own command. This execution, orfeifingof
Idiud^hy elegit, is of fo high a nature, that after it the body of
the defendant cannot be taken: but if execution can only be had
of the goods, becaufe there are no lands, and fuch goods are not
fufEcient to pay the debt, a capias ad fatisfaciendam may then be
.had after the eligit \ for fuch eligit is in this cafe no more in
effect than 2. fieri facias'\ So that body and goods may be taken
in execution, or land and goods; but not body and land toc^

E e e 2 upon

f Stat. i9 Car. If. c. 3. hi Roll. Abr. 883.

0 Book II. ch. 10. . i Hob. 58,

420 Private Book III.

tipon any judgment between fubjecl andfubjecl: in the courfe of
the common law. But

5. Upon -feme profecutions given by flatute ; as in the cafe
of recognizances or debts acknowleged on llatutes merchant, or
ftatules ilaple; (purfuant to the ftatutes 13 Edw. I. de merca-
torihus^ 'A\'A 27 Edw. III. c. 9.) upon forfeiture of thefe, the body,
lands, and goods, may all be taken at once in execution, to com-
pel the payment of the debt. The procefs hereon is ufually called
an extent u: extendi facias^ becaufe the flieriff is to caufe the
lands, &c. to be appraifed to their full extended value, before
lie delivers them to the piainHff, that it may be certainly known
liow fooi) the debt will be fad>l]ed''. And by ftatute 33 Hen. VIII.
c. 39. ail obligations msde to the king fhall have the fame force,
andofconfequence thefame remedy to recover them, as a fta-
tute ftaple: tho', indeed, before this ftatute the king wasintitled
to fue out execution againft the body, lands, and goods of his
accountant or debtor^ And his debt fliall, in fuing out execur
tion, be preferred to that of every other creditor, who hath not
obtained judgment before the king commenced his fuit"\ The
king's judgment alfo affecls all lands, which the king's debtor
hath at or after the time of contracting his debt, or which any
of his officers mentioned in the ftatute 13 Eliz.c. 4. hath at or
after the time of his entering on the office : fo that, if fuch officer
of the crown alienes for a valuable conlideration, the land lliall
be liable to the king's debt, even in the hands of a bona fide
purchafer ; though the debt due to the king was contraded
by the vendor many years after the alienation'*. Whereas
judgments between fubject andfubject related, even at common
law, no farther back than the ftrft day of the term in which they
were recovered, in refpecl of the lands of the debtor ; and did
not bind his goods and chattels, but from the date of the writ
of execution. And now, by the ftatute of frauds, 29 Car. II.
c. 3. the judgment fhall not bind the land in the hands of a

bona

k F. N. p. 731, m Stat. 35. Ilcn. VIII. c. 39.

j 3 Rep. lA. n 10 PvCp. j5, jC.

Ch. 26. Wrongs. 42 i

honafide purchafer, but only from the time of actually figning
the fame; nor the goods in the hands of a flranger, or a pur-
chafer", but only from the adual delivery of the writ to the
flieriif.

These are the methods which the law of England has
pointed OHt for the execution of judgments and when the
plaintiff 's demand is fatisfied, either by the voluntary payment
of the defendant, or by this compulfory procefs, or otherwife,
fatisfaclion ought to be entered on the record, that the defend-
ant may not be liable to be hereafter harraffed a fecond time on
the fame account. But all thefe writs of execution muft be fued
out within a year and a day after the judgment is entered: other-
wife the court concludes pn?na facie that the judgment is fatis-
fied and cxtind : yet however it will grant a .writ of fcire facias
in purfuance of ftatute Weftm. 2. 13 Edw. I. c. 45. for the de-
fendant to Ihew caufe why the judgment fliould not be revived,
and execution had againfl; him ; to which the defendant may
plead fuch matter as he has to allege, in order to fliew why pro-
cefs of execution fliould not be iffued : or the plaintiff may ftill
bring an action of debt, founded on this dormant judgment,
which was the only method of revival allowed by the common
law".

I N this manner are the feveral remedies given by the Englifli
law for all forts of injuries, either real or perfonal, adminiftred
by the feveral courts of juftice, and their refpeclive officers. In
the courfe therefore of the prefent volume we have, firft, feen and
confidered the natureof remedies, by the mere act of the parties,
or mere operation of law, without any fuit in courts. We have
next taken a view of remedies by fuit or action in courts: and
therein have contemplated, firfl, the nature and fpecies of courts,
inftituted for the redrefs of injuries in general ; and then have
fliewn in what particular courts application muft be made for the
redrefs of particular injuries, or the doclrine of jurifdi(^ions and

cognizance.

0 skin. aS7. P Co. Litt, ajo.

42 2 Private Book III.

cognizance. We afterwards proceeded to confider the nature and
diftribution of wrongs and injuries, affecting every fpecies of per-
fonal and real rights, with the refpeclive remedies by fuit which
the law of the land has afforded for every poffible injury. And,
laitly, we have deduced and pointed out the method and pro-
grefs of obtaining fuch remedies in the courts of juftice : pro-
ceeding from the firft general complaint or original writ ; through
all the ftages oifrocefs, to compel the defendant's appearance ;
and of pleading, or formal allegation on the one iide, and excufe
or denial on the other; with the examination of the validity of
fuch complaint or excufe, upon demurrer; or the truth of the fads
alleged and denied, upon iJJ'ue joined, and it's feveral trials ; to
the judgment or fentence of the law, v/ith refpect to the nature
and amount of the redrefs to be fpecifically given : till, after
conlidering the fufpenfion of that judgment by writs in the na-
ture of appeals, we arrived at it's final execution j which puts the
party in fpecific poffeffion of his right by the intervention of mi-
nillerial ofhcers, or elfe gives him an ample fatisfadion, either
by equivalent damages, or by the confinement of his body, who
is guilty of the injury complained of.

This care and circumfpedion in the law, — in providing that
no man's right ihall be affected by any legal proceeding without
giving him previous notice, and yet that the debtor Ihall not by
receiving fuch notice take occafion to efcape from juftice ; in
requiring that every complaint be accurately and precifely afcer-
tained in writing, and be as pointedly and exactly anfwered j in
clearly flating the queftion either of law or of fa6t ; in deliberately
refolving the former after full argumentative difcuffion, andin-
difputably fixing the latter by a diligent and impartial trial : in
correcting fuch errors as may have arifen in either of thofe modes
of decifion, from accident, miftake, or furprize ; and in finally
enforcing the judgment, when nothing can be alleged to im-
peach it; — this anxiety to maintain and reftore to every individual
the enjoyment of his civil rights, without intrenching upon thofe
of any other individual in the nation, this parental iblicitude

which

Ch. 26. Wrongs. 423

which pervades our whole legal conftitution, is the genuine off-
fpring of that fpirit of equal liberty which is the fingular felicity
of Englifhmen. At the fame time it muft be owned to have
given an handle, in fome degree, to thofe complaints, of de-
lay in the practice of the law, which are not wholly v/ithout
foundation, but are greatly exaggerated beyond the truth.
There may be, it is true, in this, as in all other departments o£
knowlege, a few unworthy profeffors : who ftudy the fcience
of chicane and fophiftry rather than of truth and juftice ; and
who, to gratify the fpleen, the didionefty, and wilfulnefs of
their clients^ may endeavour to fcreen the guilty, by an unwar-
rantable ufe of thofe means which were intended to protect the
innocent. But the frequent dil^ippointments and the conftant
difcountenanct:, that they meet with in the courts of juftice, have
confined thefe m.en (to the honour of this age be it fpoken) both
in number and reputation to indeed a very defpicable compafs.

Yet fome delays there certainly are, and muft unavoidably
be, in the conduct of a fait, however delirous the parties and
their agents may be to come to a fpeedy determination. Thefe
arife from the fame original caufes as were mentioned in exami-
ning a former compiainc'' ; from liberty, property, civility, com-
merce, and an extent of populous territory: w-hich whenever
we are willing to exchange for tyranny, poverty, barbarifm,
idlenefs, and a barren defart, we may then enjoy the fame dif-
patch of caufes that is fo highly extolled in fome foreign coun-
tries. But common fenfe and a little experience will convince
us, that more time and circumfpeclion are requifite in caufes,
where tht fuiLors have valuable and permanent rights to lofe,
than where their property is trivial and precarious, and what
the lav/ gives them to-day, may be feifed by their prince to-
morrow. In Turkey, fays Montefquieu', where little regard is
fliewn to the lives or fortunes of the fubjecl, all caufes are quickly
. decided: the baflia, on a fummary hearing, orders which party
he pleafes to be baftinadoed, and then fends them about their
buftnefs. But in free ftates the trouble, expenfe, and delays of

judiciai

q See pag. 347. r Sp. L. b. 6. ch. a.

424

Private

Book IIL

judicial proceedings are the price that every fubje6l: pays for his
liberty : and in all governments, he adds, the formalities of law
increafe, in proportion to the value which is fet on the honour,
the fortune, the liberty, and life of the fubjed.

From thefe principles it might reafonably follow, that the
Englilh courts fliould be more fubject to delays than thofe of
other nations; as they fee a greater value on hfe, on liberty, and
on property. But it is our peculiar felicity to enjoy the advantage,
and yet to be exempted from a proportionable Ihare of the bur-
then. For the courfe of the civil law, to which moil other
nations conform their practice, is much more tedious than ours ;
for proof of which I need only appeal to the fuitors of thofe
courts in England, where the practice of the Roman law is al-
lowed in it's full extent. And particularly in France, not only
our Fortefcue ^ accufes (of his own knowlege) their courts of
moft unexampled delays in adminiftring juftice ; but even a
writer of their own^ has not fcrupled to teflify, that there were
in his time more caufes there depending than in all Europe be-
lides, and fome of them an hundred years old. But (not to en-
large upon the prodigious improvements which have been made
in the celerity of juftice by the difufe of real actions, by the
itatutes of amendment and jeofails'', and by other more modern
regulations, which it now might be indelicate to remember, but
which pofterity will never forget) the time and attendance af-
forded by the judges in our Englifh courts are alfo greater than
thofe of many other countries. In the Roman calender there
were in the whole year but twenty eight judicial or triverbial"*
days allowed to the praetor for hearing caufes" : whereas, with
us, one fourth of the year is term time, in which three courts
conftantly lit for the difpatch of matters of law ; befides the very
clofe attendance of the court of chancery for determining fuits

in

sde Lend. LL. f. S5-
t Bodin. </f RepuJ/l, I, 6. c,
V Sec pag. 4©^.

u Otherwife called dies f'Jfi, in ^u'lltts
licelat practori fart tr'ta verha, do, dico, ad-
dico. (Calv. Lex, i.^s-J

vv Spclman of the terms, §. 4. c. s.

Ch. 26. Wrong s. 425

in equity, and the numerous courts, of ailife and nifi prius that
fit in vacation for the trial of matters of fact. Indeed there is
no other country in the known world, that hath an inftitution
fo commodious and fo adapted to the difpatch of caufes, as our
trials by jury in thofe courts for the deciiion of facls : in no
other nation under heaven does juftice make her progrefs twice
in each year into almoft every part of the kingdom, to decide
upon the fpot by the voice of the people themfelves the difputes
of the remoteft provinces.

And here this part of our commentaries, which regularly
treats only of redrefs at the common law, would naturally draw
to a conclufion. But, as the proceedings in the courts of equity
are very different from thofe at common law, and as thofe courts
are of a very general and extenlive jurifdidion, it is in fome
meafure a branch of the talk I have undertaken, to give the
fludent fome general idea of the forms of practice adopted by
thofe courts'. Thefe will therefore be the lubjed of the enfuing
chapter.

Vol. III. Fff

26 Private * Book 111

Chapter the twenty s e v e n t h.

O F PROCEEDINGS i n t h e COURTS o f

E Q^U I T Y.

EF O R E we enter on the propofed fubjed of the enfuing
chapter, viz. the nature and method of proceedings in the
courts of equity, it will be proper to recollect the obfervations,
which were made in the beginning of this book* on the princi-
pal tribunals of that kind, acknowleged by the conftitution of
Engknd; and to premife a few remarks upon thofe particular
caufes, wherein any of them claims and exercifes a fole jurif-
diclion, diftind from and exclulive of the other.

I H A V E already'' attempted to trace (though very concifely)
the hiftory, rife, and progrefs, of the extraordinary court, or
court of equity, in chancery. The famejurifdiclion is exercifed
and the fame fyftem of redrefs purfued, in the equity court of
the exchequer : with a diftinftion however as to fome few mat-
ters, peculiar to each tribunal, and in which the other cannot
interfere. And, firft, of thofe peculiar to the chancery.

1 . Upon the abolition of the court of wards, the care, which
the crown was bound to take as guardian of it's infant tenants,
was totally extinguiflied in every feodal view j but rcfultcd to

the

a ch, 4, and C, b pag, 413, i/c.

Ch. 27. Wrongs. 427

the king In his court of chancery, together with the general pro-
te<flion'' of all other t?ifants in the kingdom. When therefore a
fatTierlefs child has no other guardian, the court of chancery hath
a right to appoint one : and, from all proceedings relative thereto,
an appeal lies to the houfe of lords. The court of exchequer
can only appoint a guardian ad litem, to manage the defence of
the infant if afuit be commenced againft him; a power which
is incident to the jurifdid:ion of every court ofjuftice'': but
when the intereft of a minor comes before the court judicially
in the progrefs of acaufe, or upon a bill for that purpofe filed,
either tribunal indifcriminately will take care of the propertv of
the infant.

2. A s to idiots and lunatits : the king himfelf ufed formerly
to commit the cuftody of them to proper committees, in every
particular cafe ; but now, to avoid folicitations and the very
Ihadow of undue partiality, a warrant is ifTued by the king ^ un-
der his royal iign manual to the chancellor or keeper of his feal,
to perform this oflice for him : and, if he acts improperly in
granting fuch cuftodies, the complaint muft be made to the king
himfelf in counciF. But the previous proceedings on the com-
miilion, to enquire whether or no the party be an idiot or a lu-
natic, are on the law-fide of the court of chancery, and can only
be redrelTed (if erroneous) by v%^rit of error in the regular courfe
of law.

3. The king, 2ls parens patriae, has the general fuperinten-
denceof all ^/?^nV/(fj; which he exercifes by the keeper of his
confcience, the chancellor. And therefore, whenever it is ne-
cefTary, the attorney-general, at the relation of fome informant,
(who is ufually called the relator) files ex officio an information in
the court of chancery to have the charity properly eflablifhed.
By ftatute alfo 43 Eliz. c. 4. authority is given to the lord chan-
cellor or lord keeper, and to the chancellor of the duchy of Lan-

F f f 2 carter,

c F. N. R. 27. ' c See book T. ch. 8,

d Gro. Jac,64i. » Lev. 1C3.T. Jones.j>':>. f 3 P. Wms. loa.

428 Private Book III.

cafter, refpe^lively, to grant com millions under their feveral feals,
to enquire into any abufes of charitable donations, and rectify
the fame by decree ; which may be reviewed in the refpeclive
courts of the feveral chancellors, upon exceptions taken thereto.
Sat, though this is done in the petty bag office in the court of
chancery, becaufe the commifilon is there returned, it is not a
proceeding at common law, but treated as an original caufe in the
court of equity. The evidence below is not taken down in wri-
ting, and the refpondent in his anfwer to the exceptions may
allege what new matter he pleafes ; upon which they go to proof,
and examine wit neiTes in writing upon all the matters in ifTue :
and the court may decree the refpondent to pay all the cofts,
though no fuch authority is given by the ftatute. And, as it is
thus confidered as an original caufe throughout, an appeal lies of
courfe from the chancellor's decree to the houfe of peers^, not-
withftanding any loofe opinions to the contrary''.

4. By the feveral flatutes, relating to bankrupts, a fummary
jurifdiclion is given to the chancellor, in many matters confe-
quential or previous to the commiflions thereby directed to be
iliued 5 from which the ftatutes give no appeal.

On the other hand, the jurifdicdon of the court of chancery
doth not extend to fome caufes, wherein relief may be had in the
exchequer. No information can be brought, in chancery, for
fuch miftaken charities, as are given to the king by the ftatutes
for fuppreffing fuperftitious ufes. Nor can chancery give any
relief againft the king, or dire6l any 2.6: to be done by him, or
make any decree difpofing of or afFecling his property ; not even ••
in cafes where he is a royal truftee'. Such caufes muft be de-
termined in the-court of exchequer, as a court of revenue ; which''
alone has power over the king's treafure, and the officers em- ^wj

ployed "

<T Duke's char. ufes. Ci. liS. Corpora- i Huggins. v. YorkbuilJings Company,

tion of Biuford ^'. Lenthall. C««f . 9 May, Ca/ic. 24 0(ft. iT/io. Reeve v. Attorney-

1743. general. Cane, zj Nov. 1741. Lightl>oun v.

h i Vern. iiO. Attorney-general. Cane, 3, May, 1743.

Ch. 27. Wrongs. 429

ployed in it*s management : unlefs where it properly belongs to
the duchy court of Lancafter, which hath alfo a fimilar jurif-
didion as a court of revenue ; and like the other, confills of
both a court of law and a court of equity.

I N all other matters, what is faid of the court of equity In
chancery will be equally applicable to the other courts of equity.
Whatever difference there may be in the forms of practice, it
arifes from the different conftitution of their officers : or, if
they differ in any thing more effential, one of them muft cer-
tainly be wrong; for truth and juftice are always uniform and
ought equally to be adopted by them all.

Let us next take a brief, but comprehenlive, view of the
general nature of equity, as now underflood and pradifed in our
feveral courts of judicature. I have formerly touched upon it%
but imperfedly : it deferves a more complete explication. Yet,
as nothing is hitherto extant, that can give a flranger a to-
lerable idea of the courts of equity fubfiiling in England, as
diflinguifhed from the courts of law, the compiler of thefe ob-
fervations cannot but attempt it with diffidence: they, who know
them befl, are too much employed to find time to write ; and
they, who have attended but little in thofe courts, mufl be often
at a lofs tor materials.

Equity then, in it's true and genuine meaning, is the foul
and fpirit of all law : pofttive law is conftrued, and rational hw
is made, by it. In this, equity is fynonymous to juflice ; in
that, to the true fenfe and found interpretation of the rule. But
the very terms of a court o^ equity and a court of law^ as con-
traded to each other, are apt to confound and miflead us : as if
the one judged without equity, and the other was not bound by
any law. Whereas every definition or iliuftration to be met with,
which now draws a line between the two jurifdiciiions, hj fetting

law

k Vol. I. introd. §, j, & 3. adcalc.

430 Private Book III.

law and equity in oppofition to each other, will be found either
totally erroneous, or erroneous to a certain degree.

1. Thus in thefirft place it is faid', that it is the bufinefs of
a court of equity in England to abate the rigour of the common
law. But no fuch power is contended for. Hard was the cafe
of bond-creditors, whofe debtor devifed away his real eftate ;
rigorous and unjuft the rule, which put the devifee in a better
condition than the heir*" : yet a court of equity had no power
to interpofe. Hard is the common law ftill fubfifting, that land
devifed, or defcending to the heir, lliall not be liable to fimple
contra<5t debts of the anceftor or devifor", although the money
"was laid out in purchaling the very land ; and that the father
ihall never immediately fucceed as heir to the real eftate of the
fon°: but a court of equity can give no rehef ; though in both
thefe inftances the artificial reafon of the law, arifmg from feo-
dal principles, has long ago entirely ceafed. The like may be
obferved of the defcent of lands to a remote relation of the whole
blood, or even their efcheat to the lord, in preference to the
owner's half-brother"; and of the total flop to all juftice, by
caufmg the parol to demur^^ whenever an infant is fued as heir
or is party to a real adion. In all fuch cafes of pofitive law,
the courts of equity, as well as the courts of law, muft fay with
Uipian'", " hoc qu'idem prquam duram eft ^ fed it a lexfcnpa eft"

2. It isfaid% that a court of equity determines according to
the fpirit of the rule, and not according to the ftridlnefs of the
letter. But fo alfo does a court of law. Both, for inftance, are
equally bound, and equally profefs, to interpret ftatutes accord-
ing to the true intent of the legiflature. In general laws all
cafes cannot be forfeen j or, if forfeen, cannot be expreffed :

fome

1 Lord Kaimes. princ. of eqult. 44« P -^*"^- P^S- '■»7'

m See Vol. II. ch. aj. pag. 378. q See pag. 300.

n tb'iL ch. IS. pag. a43, 144 ch. »3, r Ff. 40. 9. i*.

pgg. j^^, s Lord Kajmcs.princ. ofe^u. X77,

o lid. ch, 14. pag. 108,

Ch. 27. Wrongs. 431

fome will arife that will fall within the meaning, though not
within the words, of the legiflator ; and others, which may fall
within the letter, may be contrary to his meaning, though not
exprefsly excepted. Thefe cafes, thus out of the letter, are often
faid to be within the equity, of an act of parliament ; and fo,
cafes v^ithin the letter are frequently out of the equity. Here
by equity we mean nothing but the found interpretation of the
law ; though the words of the law itfelf may be too general, too
fpecial, or otherwife inaccurate or defective. Thefe then are the
cafes which, as Grotius^ fays, " kx nonexa6le definite fed arbitrio
" boni viri fermhtit ;" in order to find out the true fenfe and
meaning of the lawgiver, from every other topic of conftruclion.
But there is not a fingle rule of interpreting laws, whether equit-
ably or flriclly, that is not equally ufed by the judges in the
courts both of law and equity : the conftruclion rauft in both be
the fame ; or, if they differ, it is only as one court of law may
alfo happen to differ from another. Each endeavours to fix and
adopt the true fenfe of the law in queftion ; neither can enlarge,
diminilh, or alter, that fenfe in a fingle tittle.

g. Again, it hath been faid", ih^it fraud, accident, and truji
are the proper and peculiar objeds of a court of equity. But
every kind oi fraud is equally cognizable, and equally adverted
to, in a court of law : and fome frauds are only cognizable
there, as fraud in obtaining a devife of lands, which is always
fent out of the equity courts to be there determined. Many
accidents are alfo fupplied in a court of law ; as, lofs of deeds,
miftakes in receipts or accounts, wrong payments, deaths which
make it impofiible to perform a condition literally, and a multi-
tude of other contingencies : and many cannot be relieved even
in a court of equity ; as, ii: by accident a recovery is ill fuffered,
a devife ill executed, a contingent remainder deftroyed,or apower
of leafing omitted in a family fettlement. A technical truJl in
deed, created by the limitation of a fecond ufe, was forced into

the

t de aequitate. §.3. u i Roll. Abr, 374. 4 Inft, 84. t9 M«i. <.

432 Private Book III,

the courts of equity, in the manner formerly mentioned"': and this
fpecies of trufts, extended by inference and conftruclion, have
ever fince remained as a kind of peculium in thofe courts. But
there are other trufts, which are cognizable in a court of law:
as depolits, and all manner of bailments ; and efpecially that im-
plied contrad:, fo highly beneficial and ufeful, of having under-
taken to account for money received to another's ufe'', which is
the ground of an acftion on the cafe almoft as univerfally reme-
dial as a bill in equity.

4. Once more; it has been faid that a court of equity is
not bound by rules or precedents, but ads from the opinion of
the judge^, founded on the circumftances of every particular
cafe. Whereas the fyftem of our courts of equity is a laboured
connected fyftem, governed by eftabliftied rules, and bound down
by precedents, from which they do not depart, although the
reafon of fome of them may perhaps be liable to objection.
Thus, the refufing a wife her dower in a truft-eftate^, yet al-
lowing the hufband his curtefy : the holding the penalty of a
bond to be merely a fecurity for the debt and intereft, yet con-
lidering it fometimes as the debt itfelf, lb that the intereft Ihall
not exceed that penalty": the diftinguifhing between a mortgage
•aX. jive -per cent, with a claufe of reduction to four, if the inte-
reft be regularly paid, and a mortgage at four per cent, with a
claufe of enlargement X.o jive^ if the payment of the intereft be
deferred ; fo that the former fliall be deemed a confcientious, the
latter an unrighteous, bargain '' : all thefe, and other cafes that
might be inftanced, are plainly rules of pofitive lawj fupported

only

w Book II. ch. ao. *' make the ftandard for the meafure a chan-

X See pag. i6a. - •* cellor's foot. Wliat an uncertain meafure

y This is ftateJ by Mr Selden (Tabletalk, " would this he ! One chancellor has a long

tit. equity.) with more pleafantry than truth. ♦•foot, another a fhort foot, a third an in-

" For la-Wy we have a meafure, and know " different foot. It is the fame thing with

"what to truft to: fj!«>y is according to «« the chancellor's confcience."

*• the confcience of him that is chancellor ; z i P. Wms. C40. See Vol. II, pag. 337,

" and, as that is larger or narrower, fo is a Salk. 1J4.

•' cvjuity. 'Tis aU one, as if they Ihould b » Vern. iSp. 316. 3 Atk. 510.

Ch. 27. Wrong s. a>7

only by the reverence that is fhewn, and generally very properly
ihewn, to a ikr'ies of former determinations; that the rule of
property may benniform and fteady. Nay, fometimes a prece-
dent is fo ftriiflly iollowed, that a particular judgment, founded
upon fpecial clrcumftances'', gives rife to a general rule.

I N fliort, if a court of equity in England did really ad, as a
very ingenious writer in the other part of the illand fuppofes it
(from theory) to do, it vi^ould rife above all law, either common
or ftatute, and be a mod arbitrary legiflator in every particular
cafe. No u-onder he is fo often miftaken. Grotius, or Puffen-
dorf, or any other of the great mafters of jurifprudence, would
have been as little able to difccver, by their ovvm light, the fyf-
tem of a court of equity in England, as the fyftem of a court of
law. Efpecially, as the notions before-mentioned, of the cha-
racler, power, and praclice of a court of equity, were formerly-
adopted and propagated (though not with approbation of the
thinp-) by our principal antiquarians and lawyers ; Spelman '',
Coke% Lambard^", and Selden", and even the great Bacon'' him-
felf. But this was in the infancy of our courts of equity, before
thek- jurifdiclion was fettled, and when the chancellors them-
felves, partly from their ignorance of law (being frequently bi-
fliops or llatefmen) partly from ambition and luft of power (en-
couraged by the arbitrary principles of the age they lived in)
but principally from the narrov^ and unjuft decilionsof the courts
of law, had arrogated to themfelve^. fuch unlimited authority, as
hath totallv been difclaimed by their fucceffors for now above a
century pall:. The decrees of a court of equity were then rather
in the nature of awards, formed on the fudden pro re nata, with
more probity of intention than knowlege of the fubjed ; founded
Vol. hi. ^ g S .on

c See the cafe of Fofter and Munt, ehcentc nova r&ticne, recognofcat quae vcluerit,

1 Vcrn. 473. with regii"d to the undifpofed mutet et delcat prout fuac videVitur ^rudentiae.

rcfidurim of perfonal eflates. CGhjr. 108 J

d ^lae Infummis tribiinalibiis mitlt't e legum e See pag. 53, 54.

canoiie decermmtjudices, John (fir a cxcgeritj f Archeion. 71, 71, 73.

cabibet canccllarius ex nrtitrio : nee aliter de- g nUfitpra.

qxet'ti tvisiiir pae c:'.riae vel fni i^fins, quin, h De Augm. Silent, I. 8. c. 3,

4^4 Private Book III.

on no fettled principles, as being never defigned, and therefore
never ufed, for precedents. But ti\G lyftems of jurifprudence, in
oiu' courts both of law and equity, are now equally artificial
fyftems, founded in the fame principles of juftice and pofitive
law; but varied by different uLiges in the forms and mode of
their proceedings: the one being originally derived (though much
reformed and improved) from the teodai cuftoms, as they pre-
vailed in different ages in the Saxon and Norman judicatures ;
the other (but with equal improvements) from the imperial and
pontiiiciai formularies, introduced by their clerical chancellors.

The fuggeftion indeed of every bill, to give jurifdiclion to
the courts ot equity, {copied from thofe early times) is, that the
complainant h^itii no remedy at the common law. But he, who
fiiould from thence conclude, that no cafe is judged of in equity
where there might have been relief at law, and at the fame time
tafts his eye on the extent and variety of the cafes in our equity-
reports, mufl think the law a dead letter indeed. The rules of
property, rules of evidence, and rules of interpretation, in both
courts are, or fhould be, exaclly the fame : both ought to adopt
the beft, or mufl ceafe to be courts of juftice. Formerly fome
caufes, which now no longer exit!;, might occalion a different
rule to be followed in one court, from vyhat was afterwards
adopted in the other, as founded in the natui e and reafon of the
thing : but the inllant thofe caufes ceafed, the meafure of fub-
ftantial juifice ought to have been the hme in both. Thus the
penalty of a bond, originally contrived to evade the abfurdity of
thofe monkifli conftitutions which prohibited taking intereft for
money, was therefore very pardonably confidered as the real debt
in the courts of law, when the debtor negleded to perform his
agreement for the return of the loan with interefl: : for the judges
could not, as the law then flood, give judgment that the intereil:
jQiould be fpecifically paid. But when afterwards the taking of
intereft became legal, as the neceffary companion of commerce',
nay after the flatute of 37 Hen, VIII. c; 9. had .declared the

debt

i See Vol. II. pag. 45C,

I

Cli. 27. Wrongs. 435

debt or loan itfelf to be " the juft and true intent'* for which the
obHgation was given, their narrow minded lucceliors fiiil adhered
wilfully and technically to the letter of the aniient precedents,
and refufed to confider the payment of principal, intereft, and
colls, as a fullfatisfa6lion of the bond. At the fame time more
liberal men, who fate in the courts of equity, conftrued the in-
ftrument, according to it's " juft and true intent," as merely a
fecurity for the loan : in which light it was certainly underftood
by the parties, at leaft after thefe determinations ; and therefore
this conilruction Ihould have been univerfally received. So in
mortgages, being only a landed as the other is a peribnal fecurity
for the money lent, the payment of principal, intereft, and cofts;
ought at any time, before judgment executed, to have faved the
forfeiture in a court of law, as well as in a court of equity.
And the inconvenience as well as injuftice, of putting different
conftructions in different courts upon one and the fame tranfac-
tion, obliged the parliament at length to interfere, and to direct
by theftatutes 4& 5 Ann. c. i6, and 7 Geo. II. c. 20. that, in the
cafes of bonds and mortgages, what had long been the pradlice
of the courts of equity fhould alfo for the future be followed in
the courts of law.

Again ; neither a court of equity nor of law can varymen'5
wills or agreements, or (in other words) make wills or agree-
ments for them. Both are to underftand them truly, and there-
fore both of them uniformly. One court ought not to extend,
nor the other abridge, a lawful provifion deliberately fettled by
the parties, contrary to it's juft- intent. A court of equity, no
more than a court of law, can relieve againft a penalty in the
nature of ftated damages ; as a rent of 5/. an acre for ploughing
up antient meadow'^: nor againft a lapfe of time, where the
time is material to the contract ; as in covenants for renewal of
leafes. Both courts will equitably conftrue, but neither pretends
to control or change, a lawful ftipulation or engagement.

Ggg2 The

k I Atk, Z3p,

43

6 Private; Book IIL

The rules of decifion are in both courts equally appofite to
the fubjeds of which they take cognizance. Where the fubjed-
matter is fuch as requires to be determined fecundum ae-^uum et
bonum^ as generally upon a<5licns on the cafe, the judgments of
the courts of law are guided by the moft liberal equity. In mat-
ters of politive right, both courts muftfubmit to and follow thofe
antient and invariable maxims " quae telidae fu?it et tradifnK"
Both follow the law of nations, and colled it from hiftory and
the moll approved authors of all countries, where the queftion
is the object of that law: as in cafe of the privileges ofem-
baffadors'", hoftages, or ranfom-bills". In mercantile tranfadions
they follow th-e marine lav/°, and argue from the ufages and au-
thorities received in all maritime countries. Where they exer-
clfe a concurrent jurifdidion, they both follow the law of the
■proper foru7n^: in matters originally of ecclefiaftical cognizance,
they both equally adopt the canon or imperial law, according to
the nature of the fubjed''; and, if a queftion came before either,
which was properly the objed of a foreign itiunicipal law, they
would both receive information what is the rule of the country",
and would both decide accordingly.

Such then being the parity of law and realbn v^/hich go-
verns both fpecies of courts, wherein (it may be afked) does
their eflential difference confrft? It principally conlitls in the
different modes of ad^miniftring juflice in each ; in the mode of
proof, the mode of trial, and tlie mode of relief. Upon thefe,
and upon two other accidental grounds of jurifdiction, which
were formerly driven into thofe courts by narrow decilions of the
courts of law, viz. the true conllrudion of fecurities for money

lent,

1 Df jurac naturae cogiiarc per no$ atque di- B. R .

eere ilebemus ; dcjure populi Rornani, ciiae re- © See Vol. I. pag. 75. Vol. II. pag. 45j>.

liBafunt et tradita. (Cic. </e Le^. I. 3- ^^^ 46i.4e'7-

ca'lc.) P See Vol. II. pag. 513.

m Sec Vol. I. pag. as 3. q ■^^«'-'- S04.

n Ricord. v, JiCttcnham, Tr. j Geo. III. r Ihii. 463. ^

Ch. 27. Wrongs. 437

lent, and the form and eflecl of a truft or fecond life ; upon thefe
main pillars hath been gradually ereded that flruclure of jurif-
prudence, which prevails in our courts of equity, and is in- -
wardly bottomed upon the fame fubftantial foundations as the
legal fyftcm which hath hitherto been delineated in thefe com-
mentaries ; however different they may appear in their outward
form, from the different tafte of their architects.

I. And, firft, as to the mode o{ proof. When fa(51:s, or their ^l/»-«^A
leading circumftances, reft only in the knowlege of the party, a ^

court of equity applies itfelf to his confci^nce, and purges him
upon oath with regard to the truth of the traiilaclion ; and, that
being once difcovered, the judgment is the fame in equity as it
would have been at law. But, for want of this difcovery at law,
the courts of equity have acquired a concurrent jurifdi6tion with
every other court in all matters of account". As incident' to ac-
counts, they take a concurrent cognizance of the adminiftration
of perfonal affets^, confequently of debts, legacies, the diftri-
bution of the refidue, and the conduft of executors, and admi-
niftrators". As incident to accounts, they alfo t>ike the concur-
rent jurifdiction of tithes, and all queftions relating thereto" ;
of all dealings in partnerfhip", and many ether mercantile tranf-
actions; and fo of bailifl's, receivers, fadors, and agents^. It
would be endlefs to point out all the feveral avenues in humaa
affairs, and in this commercial age, which lead to or end in ac-
counts.

From the fame fruitful fource, the compuliive difcovery upon
oath, the courts of equity have acquired a jurifdiction overal-
moft all matters of fraud''; all matters in the private knowlege
of the party, v»^hich, though concealed, are binding in confciencej
and all judgments at law, obtained through fuch fraud or con-
cealment.

S r Chan. Caf. 57. x i Vern. 277.

t z P. Wms. 14s. y iViA. 638.

u % Chan. Caf. 151. z i Chan. Caf. 4$.
w I E<iu. caf, abr. 3*7.

438

Private Book III.

cealment. And this, not by impeaching or reverfing the judg-
ment itfelf, but by prohibiting the plaintiff from taking any ad-
vantage of a judgment, obtained by fuppreffing the truth* 5 and
which, had the fame fads appeared on the trial, as now are dif-
covered, he would never have obtained at all.

Z^-^is^C 2. A s to the mode of /n^^/. This is by interrogatories admi-
niftred to the witneiTes, upon which their depofitions are taken
in writing, wherever they happen to refide. If therefore the
caufe arifes in a foreign country, and the witnefles reiide upon the
fpot; if, in caufes arifing in England, the witnefles are abroad,
or fhortly to leave the kingdom; or if witneiTes refiding at home
arc aged or infirm ; any of thcfe cafes lays a ground for a court
^ of equity to grant a commiiTion to examine them, and (in con-
fequence) to exertife the fame jurifdidion, which might have
been exercifed at law, if the witneiTes could probably attend.

\

3. With refped to the mode oi relief . The want of a
more fpecific remedy, than can be obtained in the courts of law,
gives a concurrent jurifdidion to a court of equity in a great va-
riety of cafes. Toinflance in executory agreements. A court
of equity will compel them to be carried into ftricl execution^,
unlefs where it is improper or impoffible ; inftead of giving da-
mages for their non-performance. And hence a fidion is efta-
blifhed, that what ought to be done fliall be coniidered as being
aduallydone*, and Ihall relate back to the time when it ought
to have been done originally : and thiS lidion is fo clofely pur-
fued through all it's confequences, that it necefiarily branches
out into many rules of jurifprudence, which form a certain re-
gular fyftem. So of wafte, and other fimilar injuries, a court
of equity takes a concurrent cognizance, in order to prevent them
by injundion**. Over queftions that may be tried at law, in a
great multiplicity of adions, a court of equity alTumes a jurif-

didion,

a 3 p. Wms. 148. Yearbook, »i £</w. IV, c 3 P. Wms. iij .

37- p!- 3.1. d I Ch. Rep. 14, 1 Qian. Caf. 3*.

b E^u. Caf. abr. itf.

Ch. 27. Wrongs. 435

diclion, to prevent tlie expenfe and vexation of endlefs litigations
and fuits*. In various kinds of frauds it affumes a concurrent^
jurifdidion, not only for the fake of a difcovery, but of a more
extenlive and fpecific relief: as by fetting afide fraudulent deeds^
decreeing re-conveyances^, or directing an abfolute conveyance
merely to ftand as a fecurity'. And thus, laftly for the fake •»

of a more beneficial and complete relief by decreeing a fale of
lands^, a court of equity holds plea of all debts, incumbrances,
and charges, that may affed it or iiTuc thereout.

4. T H E true conflrudion oifeciinties for money lent is an- ^/^.s^^^^^a.
other fountain of jurifdiction in courts of equity. When they

held the penalty of a bond to be the form, and that in fubftance
it was only as a pledge to fecure the repayment of the fum bojja
Jide advanced, with a proper compenfation for the ufe, they laid
the foundation of a regular feries of determinations, which have
fettled the doctrine of perfonal pledges or fecurities, and are
equally applicable to mortgages of real property. The'mortgagor
continues ov/ner of the land, the mortgagee of the money lent
upon it : but this ownerfhip is mutually transferred, and the
mortgagor is barred from redemption, if, when called upon by
the mortgagee, he does not redeem within a time limited by the
court; or he may when out of poiTeffion be barred by length of
time, by analogy to the flatute of limitations.

5. T H E form of a tntft^ox fecond ufe,gives thecourts of equity "^y^^zj^-
an exclufive jurifdi(5tion as to the fubjed-matter of all fettlements

and devifes in that form, and of all the long terms created in the
prefent complicated mode of conveyancing. This is a very ample
fource of jurifdi<5lion: but the truft is governed by very nearly
the fame rules, as would govern the eftate in a court of law ', if
no truftee was interpofed 5 and, by a regular pofitive fyftem ef-

tabliflied

e z Vcm, 308. Prec. Chan. zffi. i P. h iVern. 237.
Wms. 671. Stra. 404. i x Vern. 84.

f 2 P. Wir.s. 156. k 1 Eiju. Caf. abr. 337.

g I Vera. 3*. I P. Wms. 13 jr. la P. Wms, ^l^ <J(58, Ci^*

44^ Private Book III.

tablilhed in the courts of equity, the doctrine of trufts is now
reduced to as great a certainty as that of legal eilates in the courts
of the common law.

These are the principal (for I omit the minuter) grounds of
the jurifdidion at prefent exercifed in our courts of equity :
which differ, we fee, very confiderably from the notions enter-
tained by ftrangers, and even by thofe courts themfelves before
they arrived to maturity ; as appears from the principles laid
down, and the jealoulies entertained of their abufe, by our early
juridical writers cited in a former"' pagej and which have been
implicitly received and handed down by fubfequent compilers,
without attending to thofe gradual acceffions and derelidlions, by
which in the courfe of a century this mighty river hath imper-
ceptibly fhifted it's channel. Lambard in particular, in the reign
of queen Elizabeth, lays it down", that " equity ihould not be
'' appealed Unto, but only in rare and extraordinary matters: and
" that a good chancellor will not arrogate authority in every
" complaint that fhall be brought before him, upon whatfoever
*' fuggeftion; and thereby both overthrow the authority of the
" courts of common law, and bring upon men fuch a confufioU'
*^' and uncertainty, as hardly any man Ihould know how or how
" long to hold his own allured to him." And certainly, if a
court of equity were ftill at fea, and floated upon the occafional
opinion which the judge who happened to prefide might enter-
tain of confcience in every particular cafe, the inconvenience,
that would arife from this uncertainty, would be a worfe evil than
any hardfhip that could follow from rules too ftrict and inflexible.
It's powers would have become too arbitrary to have been endu-
red in a country like this°, which boafts of being governed in all
refpechs by law and not by will. But lince the time when Lam-
bard wrote, a fet of great and eminent lawyers'*, who have fuc"=!
cefiively held the great feal, have by degrees erecled the fyftem
of relief adminiftred by a court of equity into a regular fcienccs

which

m See pag. 43;. o a P. Wms. 6.8s, CfiC,

n Archeion. -jx. 73. p See pag. 53, 54, 55.

Ch. 27. Wrongs. 441

■which cannot be attained without ftudy and experience) any more
than the fcience of law: but from which, when undei^ood, it
may be known what remedy a fuitor is intitled to expert, and by
what mode of fuit, as readily and with as much precilion, in a
court of equity as in a court of law.

It were much to be wifhed, for the fake of certainty, peace,
and jullice, that each court would as far as poflible follow the
other, in the bell ana mod effedual rules for attaining thofc de-
iirable ends. It is a maxim, that equity follows the law ; and in
former days the law has not fcrupled to follow even that equity
which was laid down by the clerical chancellors. Every one
who is converfantin ourantient books, knows that many valuable
improvements in the ftate of our tenures (efpecially in leafeholds*
and copyholds') and the forms of adminiftring juftice*^, have
arifen from this lingle reafon, that the fame thing was conftantly
effected by means oi 2. fuhpoena in the chancery. And fure there
cannot be a greater folecifm, than that in two fovereign inde-
pendent courts, eftabliilied in the fame country, exercifing con-
current jurifdidion, and over the fame fubject-matter, there,
Ihould exift in a lingle inftance two different rules of property,
cladiing with or contradicting each other,

I T would carry me beyond the bounds of my prefent pur-
pofe, to go farther into this matter. I have been tempted to go
fo far, becaufe the very learned author to whom I have alluded,
and whofe works have given exquiiite pleafure to every contem-
plative lawyer, is (among many others) a flrong proof how eafily
names, and loofe or unguarded expreflions to be met with in the
beft of our writers, are apt to confound a flranger 5 and to give
him erroneous ideas of feparate jurifdiclions now exifting in
England, which never were feparated in any other country in the
univerfe. It hath alfo afforded me an opportunity to vindicate,
on the one hand, the juftice of our courts of law from being
Vol. III. H h h , that

q Gilbert of ejeftm. a. x Bac. Abr. 160. f See pag. joo«
r Bro. Ah. t. tenant, ^er copie. 10. Litt. §. 77.

442 Private Book III.

that harih and illiberal rule, which many are too ready to fup-
pofe it; and, on the other, the juftice of our courts of equity
from being the refult of mere arbitrary opinion, or an exercife of
dictatorial power, which rides over the law of the land, and
corrects, amends, and controlls it by the loofe and fluctuating
dictates of the confcience of a fingle judge. It is now high
time to proceed to the practice of our courts of equity, thus
explained and thus underilood. ^

The firft commencement of a fait in chancery is by preferring
a bill to the lord chancellor in the ftile of a petition ; " humbly
*'complainingfhewethtoyourlordfhipyour orator A. B. that, ?irc."
This is in the nature of a declaration at common law, or a libel
and allegation in the fpiritual courts: fetting forth the circum-
ftances of the cafe at length, as, fome fraud, truft, or hard(hip ;
" in tender confideration whereof," (which is the ufual language
of the bill) " and for that your orator is wholly Without remedy
" at the common law," relief is therefore prayed at the chan-
cellor's hands, and alfo procefs oifuhfoena againfi: the defendant,
to compel him to anfwer upon oath to all the matter charged in
the bill. And, if it be to quiet the poflellion of lands, to flay
wafle, or to flop proceedings at law, an injunction is alfo prayed
in the nature of the interdidum of the civil law, commanding
the defendant to ceafe.

This bill mufl call all necefTary parties, however remotely
concerned in interefl, before the court ; otherwife no decree can
be made to bind them : and mufl be figned by counfel, as a cer-
tilicate of it*s decency and propriety. For it mufl not contain
matter either fcandalous or impertinent: if it does, the defend-
ant may refufe to anfwer it, till fuch fcandal or impertinence is
expunged, which is done upon an order to refer it to one of the
officers of the court, called a mafler in chancery ; of whom there
are in number twelve, including the mafler of the rolls, all of
whom,fo late as the reign of queen Elizabeth, were commonly

doctors

Ch. 27, Wrongs. 443

doclors of the civil law'. The mafter is to examine the propriety
of the bill : and, if he reports it fcandalous or impertinent, fuch
matter mull be ftruck out, and the defendant ihall have his cofts;
which ought of right to be paid by the couniel who iigned the
bill.

When the bill is filed in the office of the fix clerks, (who
originally were all in orders; and therefore, when the conftitution
of the court began to alter, a law ' was made to permit them to
marry) when, I fay, the bill is thus filed, if an injunction be
prayed therein, it may be had at various flages of the caufe, ac-
cording to the circumilances of the cafe. If the bill be to flay
execution upon an oppreflive judgment, and the defendant does
not put in his anfwer within the flated time allowed by the rules
of the court, an injundion will iffue of courfe : and, when the
anfwer comes in, the injundlion can only be continued upon a
fufEcient ground appearing from the anfwer itfelf. But if an in-
junction be w^anted to flay waf{:e, or other injuries of an equally
urgent nature, then upon the filing of the bill, and a proper cafe
fupported by affidavits, the court will grant an injunction imme-
diately, to continue till the defendant has put in his anfwer, and
till the court fhall make fome farther order concerning it : and,
when the anfwer comes in, whether it fliall then be diffolved
or continued till the hearing of the caufe, is determined by the
court upon argument, drawn from confidering the anfwer and
affidavit together.

But, upon common bills, as foon as they are filed, procefs o^
fubpoena is taken out ; which is a writ commanding the defend-
ant to appear and anfwer to the bill, on pain of loo /. But this
is not all : for, if the defendant, on fervice of tkefubpoena, does
not appear within the time limited by the rules of the court,
and plead, demur, or anfwer to the bill, he is then faid to be in
contempt ; and the refpeclive procefTes of contempt are in fuccef-
five order awarded againfl him. The firfl of which is an at-

H h h 2 tachmmt^

s Smith's commonw. b. ». c. i>, t Stat. 14 & ^5 Hen. YUI, c. 8»

444 Private Book III.

tach?nent, which ts a writ in the nature of a capias, dirccl:ed to the
ilierifF, and comman,ding him to attach, or take up, the defend-
ant, and bring him into court. If the iheriif returns that the
defendant w?z ^ inventus, then an attachment with prQcla7natiom'
iifues ; which, beiides the ordinary form of attachment, direcT:s
the fheriiF that he caufe pubhc proclamations to be made,
throughout the county, to funrimon the defendant, upon his al-
legiance, perfonally to appear and anfwer. If this be alfo re-
turned with a non eft inventus, and he ftill ftands out in contempt,
a commijjion of rebellion is awarded againil him, for not obeying
the proclamations according to his allegiance ; and four com-
mifiioners therein named, or any of them, are ordered to attach
him whereioever he may be found in Great Britain, as a rebel
and contemner of the king's laws and government, by refuling
to attend his fovereign when thereunto required, lince, as was
before obferved", matters of equity were originally determined
hy the king in perfon, affifted by his council j though that buli-
nefs is now devolved upon his chancellor. If upon this com-
miffion of rebellion a 7ion eft inventus is returned, the court then
fends 2i ferjeant at arms in queftofhim; and, if he eludes the
fearchofthe ferjeant alfo, then 2i fe que ft ration iffues to fcife all
liis perfonal eitate, and the profits of his real, and to detain
them, fubj eel to the order of the court. Sequeftrations were firft
introduced by fir Nicholas Bacon, lord keeper in the reign of
queen Elizabeth ; before which the court found fome diiScuIty
in enforcing it's procefs and decrees"'. After an order for a fe-
queftration iifued, the plaintiff 's bill is to be taken fro cDvfeffo,
and a decree to be made accordingly. So that the fequeflratiou
does not fcem to be in the nature of procefs to bring in the de-
fendant, but only intended to enforce the performance of the
decree. Thus much if the defendant abfconds.

I F the defendant is taken upon any of this procefs,' he is to
be committed to the fleet, or other prifon, till he puts in his
appearance, or anfwer, or performs whatever elfe this procefs is

iffued

U pag. so« w I Vern, 41 1„

Ch. 27. Wrong s. 445

iflued to enforce, and alfo clears his contempts by paying the
cofts which the plaintiff has incurred thereby. For the fame kind
of proccfs is iffued out in all forts of contempts during the pro-
grefs of the caufe, if the parties in any point refufe or neglect to
obey the order of the court.

The procefs againft a body corporate is by d'lftringas, to dif-
trein them by their goods and chattels, rents and profits, till they
fiiall obey the fumqnons or directions of the court. And, if a peer
is a defendant, the lord chancellor fends a letter mijfive to him to
requefl: his appearance, together with a copy of the bill : and, if
he negleds to appear, then he may be ferved with a fuhpoena ;
and,if he continues ftlil in contempt, a fequeftration iffues out
imm-ediately againft his lands and goods, without any of the
xnefne procefs of attachment, <b'c^ which are directed only
againft the perfon, and therefore cannot affect a lord of parlia-
ment. The fame procefs iffues againft a member of the hbufe
of commons, except only that the lord chancellor fends him no
letter miffive,

The ordinary procefs before-mentioned cannot be fued out,
till after fervice of th&Jiib poena ^iov then the contempt begins ;
otherwife he is not prefumed to have notice of the bill : and
therefore, by abfconding to avoid the fuhpoena^ a defendant
might have eluded juftice, till the ftatute 5 Geo. II. c. 25.
which enacts that, where the defendant cannot be found to be
ferved with procefs oi fubpoena, and abfconds (as is believed) to
avoid being ferved therewith, a day ffiall be appointed him to
appear to the bill of the plaintiff ; which is to be inferted in the
London gazette, read in the parifh church where the defendant
iaft lived, and fixed up at the royal exchange : and if the de-
fendant doth not appear upon that day, the bill fliall be taken
pro confejfo,

B u T If the defendent appears regularly, and takes a copy of
the bill, he is next to demur, plead, or anfwer^

446

Private Book III.

A DEMURRER in cquity is nearly of the fame natureas a demur-
rer in law ; being an appeal to the judgment of the court,
whether the defendant fiiall be bound to anfwer the plaintiff's
bill : as, for want of fuificient matter of equity therein con-
tained ; or where the plaintiff, upon his own Ihewing, appears
to have no right ; or where the bill feeks a difcovery of a thing
which may caufe a forfeiture of any kind, ormayconvid: a man
of any criminal mifbehaviour. For any of thefe caufes a de-
fendant may demur to the bill. And if, on demurrer, the de-
fendant prevails, the plaintiff's bill fhall be difmilTed : if the de-
murrer be over-ruled, the defendant is ordered to anfwer,

«/ ■ ^^^ A p L E A may be either to the junfdiBion ; fhewing that the
//i^-xr**, court has no cognizance of the caufe : or to the perfon; Ihewing
fome difability in the plaintiff, as by outlawry, excommunication,
^ fh^i^ and the like: or it is in bar ; feewing fome matter wherefore
the plaintiff can demand no rehef, as an act of parliament, a
fine, a releafe or a former decree. And the truth of this plea
the defendant is bound to prove, if put upon it by the plaintiff.
But as bills are often of a complicated nature, and contain various
matter, a man may plead as to part, demur as to part, and an-
fwer to the refidue. But no exceptions to formal minutiae in the
pleadings will be here allowed; f)r the parties are at liberty, on
the difcovery of any errors in form, to amend them*.

A N anfwer is the moft ufual defence that is made to a plain-'
tiff's bill. It is given in upon oiith, or the honour of a peer or
peerefs ; but where there are amicable defendants, their anfwer
is ufually taken without oath by confent of the plaintiff. This
method of proceeding is taken from the eccleliaftical courts, like
the reft of the practice in chancery : for there, in almofl every
cafe, the plaintiff may demand the oath of his adverfary in fup-

piy

X Kn refl court de chauncerie, home ne ferra doit sgarder fohnque confctern, et nemt ex r'lgore
frejudkc par foil myfplcdyiug cu pur defaut de juris. {Dyverfite des 'courts, edit. isi^. fol,
forme^ mesjolonqrte k verjitt dd mater ; car il »5<i, *^7, £r9t /ih, t. juriJdiHim. jo.J

>

Ch. 27. Wrong s. 447

ply of proof. Formerly this was done in thofe courts with com«
purgators, in the manner of our waging of law : but this has
been long difufed ; and inftead of it the prefent kind of purgati-
on, by the fingle oath of the party himfelf, was introduced.
This oath was made ufe of in the fpiritual courts, as well in cri-
minal cafes of ecclefiaftical cognizance, as in matters of civil
right: and it was then ufually denominated the oath c-a- officio^
whereof the high commiflion court in particular made a moH
extravagant and illegal ufe ; forming a court of inquifitioUj ia
which all perfons were obliged to anfwer, in cafes of bare fuf-
picion, if the commifTionexs thought proper to proceed againil
them ex officloiov any fuppofed ecclefiaftical enormities. But when
the high commiflion court was abolifhed by ftatute i6 Car. I.
c. II. this oath e>i officio was abolifhed with it ; and it is alfo
enaded by flatute 13 Car. 11. ft. i.e. 12. " that it fliall not be
" lawful for any biihop or ecclefiaftical judge to tender to any
" perfon the oath ex officio, or any other oath whereby the party
** may be charged or compelled to confefs, accufe, or purge him-
" felf of any criminal matter." But this does not extend to oaths
in a civil fuit, and therefore it is ftill the practice both in the
fpiritual courts, and in equity, to demand the perfonal anfwer
of the party himfelf upon oath. Yet if in the bill any queftion
be put, that tends to the difcovery of any crime, the defendant
m.ay thereupon demur, as was before obferved, and may refufe
to anfwer.

I F the defendant lives within twenty miles of London, he
jnuft be fworn before one of the mafters of the court : if far-
ther off, there may be a dedinms poteflatem or commiflion to take
his anfwer in the country, where the commiflioners adminifter
him the ufual oath ; and then, the anfwer being fealed up, either
one of the commiflioners carries it up to the court ; or it is fent
by a mefTenger, who fwears he received it from one of the com-
miflioners, and that the,fame has not been opened or altered
lince he received it. An anfwer muft be figned by counfel, and
muft either deny or confefs all the material parts of the bill ;

or

448

Private Book III,

or it may confefs and avoid, that is, juftlfy or palliate the
fads. If one of thefe is not done, the anfwer may be excepted
to for infufliciency, and the defendant be compelled to "put in a
more fufficient anfwer. A defendant cannot pray any thing in
this his anfwer, but to be difmiffed the court: if he has any
relief to pray againft the plaintiff, he muft do it by an original
bill of his own, v.'hich is called 2 crojs bill.

After anfwer put in, the plaintiff, upon payment of cofts,
may amend his bill, either by adding new parties, or new mat-
ter, or both, upon the new lights given him by the defendant ;
and the defendant is obliged to anfwer afrefli to fuch amended
bill. But this muff be before the plaintiff has replied to the de-
fendant's anfwer, whereby the caufe is at iffue ; for afterwards,
if new matter arifes, which did not exiil before, he mufl fet it
forth by a fuppkmental bill. There may be alio a bill of revivor^
when the fuit is abated by the death of any of the parties ; in
oarder to fet the proceedings again in motion, without which they
remain at a fland. And there is likewife a bill of interpleader ;
where a perfon who owes a debt or rent to one of the parties in
fuit, but till the determination of it, he knows not to which,
defires that they may interplead, that he may be fafe in the pay-
ment. In this lafl cafe it is ufual to order the money to be paid
into court, for the benefit of fuch of the parties, to whom upon
hearing the court iliall decree it to be due. But this depends
upon circumftances: and the plaintiff muil alfo annex an affida-
vit to his bill, fvvearing that he does not collude with either of
the parties.

I F the plaintiff finds fufficient matter confeffed in the defend-
ant's anfwer to ground a decree upon, he may proceed to the
hearing of the caufe upon bill and anfwer only. . But in that
cafe he muft take the defendant's anfwer to be true in every
point. Otherwife the courfe is for the plaintiff to reply gene-
rally to the anfwer, averring his bill to be true, certain, and fuf-
ficient, and the defendant's anfwer to be diredly the reverfe ;

which

Ch. 27, Wrongs. ' ^^p

which he is ready to prove as the court fhall award : upon which
the defendant rejoins, averring the like on his iide ; which is \

joining iflue upon the facls in difpute. To prove which facts is \

the next concern. .

This is done by examination of witnefles, and takins: their
dspofttiofis in writing, according to the manner of the civil \2.\v» ^eJt^er?*-.
And for that purpofe 'mterrogate/ies are framed, or queftions in -^
writing; which, and which only, are to be propofed to, and
afked of, the witnefles in the caufe. Thefe interrogatories mull
be fhort and pertinent: not leading ones; (as " did not you .ee
" this, or, did not you hear that?") for if they be fuch, the
depofitions taken thereon will be fupprefled and not i\iffered to
be read. For the purpofe of examining witnefles in or near
London, there is an examiner's office appointed ; but, for evi-
dence who live in the country, a commifflon to examine wit-
nefles is ufually granted to four commiffioners, two nan :d of
each fide, or any three or two of them, to take the depof tions
there. And if the witnefles relide beyond fea, a commifiion may
be had to examine them there upon their own oaths, and (if fo-
reigners) upon the oaths of fi^ilful interpreters. And it hath been
held^ that the depofition of an heathen who believes in the fu-
preme being, taken by commiflion in the mofl: folemn manner
according to the cufliom of his own country, may be read in
evidence.

The commiflioners are fworn to take the examinations truly
and without partiality, and not to divulge them till publiflied in
the courtof chancery ; and their clerks are alfo fv\orn to fecrefy.
The witnefles are compellable by procefs oi fuhpoena, as 10 the
courts of common law, to appear and fubmit to examination.
And when their depofitions are taken, they are tranfmitted to
the court with the fame care that the anfwer of a defendant is
fent-

Vol. III. lii If

' y Omichund 7;. Barker. lAtk. 21.

^co Private Book III.

I F witneffes to a difputable fa<fl are old and infirm, it is very
ufual to file a bill to perpetuate the teftimony of thofe vv-itnelTes,
although no fuit is depending ; for, it may be, a man's antago-
nifl only waits for the death of fome of them to begin his fuit.
This is mod frequent when lands are devifed by will away from
the heir at law ; and the devifee, in order to perpetuate the tef-
timony of the witneffes to fuch will, exhibits a bill in chancery
aglinft the heir, and fets forth the will verbatim therein, fug-
gelHng that the heir is inclined to difpute it's validity : and then
the defendant having anfwered, they proceed to ifTue as in other
cafes, and examine the witnefTes to the will ; after which the
caufe is at an end, without proceeding to any decree, no relief
beiiig prayed by the bill: but the heir is intitled to his cofts,
even though he contefts the will. This is what is ufually meant
by provin^ a will in chancery.

When all the witnefTes are examined, then, and not before,
the depofit.'ons may be publifhed, by a rule to pafs publication ;
after which they are open for the mfpedion of all the parties,
and copies may be taken of them. The caufe is then ripe to be
/et down for hearing, which may be done at the procurement of
the plaintiff, or defendant, before either the lord chanchellor or
the mafler of the rolls, according to the difcretion of the clerk
in court, regulated by the nature and importance of the fuit, and
the arrear of caufes depending before each of them refpeflively.
Concerning the authority of the mafler of the rolls to hear and
determine caufes, and his general power in the court of chancery,
there were (not many years fmce) divers queflions and difputes
very warmly agitated ; to quiet which it was declared by flatute
3 Geo. II. c. 30. that all orders and decrees by him made, ex-
cept fuch as by the courfe of the court were appropriated to the
great feal alone, fhould be deemed to be valid ; fubjeft never-
thelefs to be difcharged or altered by the lord chancellor, and fo
as they fliall not be enrolled, till the fame are figned by his lord-
Ihip. Either party may be fubpoena'd to hear judgment on the

day

Cil. 27. ' W R O IvI G S. 45!

day fo fixed for the hearing: and then, if the plaintiff does not
attend, his bill is diihiifled with colls ; or, if the defendant makes
default, a decree will be made againft him, which will be final,
unlefs he pays the plaintiff's cofi:s of attendance, and fhews good
caufe to the contrary on a day appointed by the coupt. A plain-
tiff's bill may alfo at any time be difmiffed for want of profecii-
tion which, is ia the nature of a nonfuit at law, if he fuffers
three terras to clapfe without moving forward in the caufe.

"When there are crofs caufes, on a crofs bill filed by the de-
fendant againft the plaintiff in the original caufe, they are gene-
rally contrived to be brought on together, that the fame hearing
and the fame decree may ferve foi' both of them. The method
of hearing caufes in court is ufually this. The parties on botli
fides appearing by their counfel, the plaintiff's bill is firft open-
ed, or briefly abridged, and the defendant's anfw'er aUb, by the
junior counfel en each fide : after which the plaintiff's leading
counfel ftates the cafe and then>atters in iffue, and the points of
equity arifing therefrom : and then fuch depofitions as are called
for by the plaintiff are read by CKie of the fix clerks, and the
plaintiff may alfo read fuch part of the defendant's anfwer, as he
thinks m^iterial or convenient^: and after this the reft of the
connfel for the plnintiff make their obfervations and arguments.
Then the defendant's counfel go through the fame procefs for
him, except that they may not read any part of his anfwer ;.
and the counfel for the plaintiff are heard in reply. When
all are heard, the court pronounces the <3'd'fr^^, adjufting every
point in debate according to equity and good confcience; which
decree being mually very long, the minutes of it are taken
down, and read openly in court by the regiftrar. The matter
of cofts to be given to either party, is not here held' to be a point
of right, but merely difcretionary (by the ftatute 1 7 R.ic. II»
c. (5.) according to the circumftancesof the cafe, as they appear

I i i 2 more

r On n tnaj at law if tSe plainrifT reads of it he (hews a relisfncc on the truth of the
j^y part of the (ietsndant's aniwer, he mull defendant's tcfcimony, ani r.i ikes the whole
yead the whole of it; for by reading any of his anfwer evidenc.

45^ Private Book IlL

more or lefs favourable to the party vanquiflied. And yet the
ftatute 15 Hen, VI. c. 4. feems exprefsly to dhxd, that as well
damages as cofts fhall be given to the defendant, if wrongfully '
vexed in this court.

The chancellor's decree is either interlocutory ot JinaL It
very feldom happens that the firft decree can be final, or con-
clude the caufe j for, if any matter of fad is flrongly con-
troverted, this court is fo fenfible of the deficiency of trial by
written depofitions, that it will not bind the parties thereby,
but ufually direds the matter to be tried by jury ; efpecially fuch
important fads as the validity of a will, or whether A is the
heir at law to B, or the exifi:ence of a 7nodus decimandi or real
and immemorial compofition for tithes. But^ as no jury can be
fummoned to attend this court, the fad is ufually direded to be
tried at tlie bar of the court of king's bench or at the aflifes,
u^on 2. feigned ijue. For, (in order to bring it there, and have
the point in difpute, and that only, put in iffue) an adion is
feigned to be brought, wherein the pretended plaintifl declares,
that he laid a wager of 5/. with the defendant, that A was heir
at law to B ; and then avers that he is fo j and brings his adion
for the 5/. The defendant allows the wager, but avers that A
is not the heir to B ; and thereupon that iffue is joined, which
is direded out of chancery to be tried : and thus theverdidof
the jurors at law determines the fad in the court of equity.
Thefe feigned ilTues feem borrowed from the Jponfio judi calls of
the Romans': and arealfo frequently ufed in the courts of law,
by confent of the parties, to determine fome difputed right with-
. out the formality of pleading, and thereby to fave much time ancl
expenfe in the decifion of a caufe.

S o likewife, if a queftion of mere law arifes in the courfe of
a caufe, as whether by the words of a will an eilate for hfe or

in

a Nota ejl ffonfio jtidiclalh : ^^ Jponaejne "fponicOy ni metn fit. Vide Heinecc. Anti-
•« quingentos, ft meus Jit ? fpondeo, fi tuusft. quitat. I. 3. t. 16. §. 3. ir Sigon. de judicm
f Fa tu qucquefpondefne qain^entos, nitmsfit? I, jj. />. 4<5(?. citat. ibid.

Ch, 27. Wrongs. 453

in tail is created, or whether a future intereft devifed by a tefta-
tor ihail operate as a remainder or an executory devife, it is the
pradi'ce of this court to refer it to the opinion of the judges of
the court of king's bench, upon a cafe Hated for that purpofe;
wherein all the material facts are admitted, and the point of law
is fubmitted to their decilion : who thereupon hear it folemnly
argued by counfel on both (ides, and certify their opinion to the
chancellor. And upon fuch certificate the dedree is ufually
founded.

Another thing alfo retards the completion of decrees.
Frequently long accounts are to be fettled, incumbrances and
debts to be enquired into, and a hundred little fads to be cleared
up, before a decree can do full and fufficient jufl;ice. Thefe
matters are always by the decree on the firft hearing referred to a
mafter in chancery to examine ; which examinations frequently
laft for years : and then he is to report the faft, as it appears
to him, to the court. I'his report may be excepted to, dif-
proved, and over-ruled ; or otherwife is confirmed, and made
abfolute, by order of the court.

When all-ifTues are tried and fettled, and all references to
the mailer ended, the caufe is again brought to hearing upon
the matters of equity referved ; and a final decree is made : the
performance of which is inforced (if neceffary) by commitment
of the perfon or fequeflration of the party's eftate. And if by
this decree either party thinks himfelf aggrieved, he may pe-
tition the chancellor fqr a rehearing; whether it was heard be-
fore his lordfliip, or any of the judges, fitting for him, or before
the mafter of the rolls. For whoever may have heard the caufe^
it is the chancellor's decree, and muft be figned by him before it
is enrolled^; which is done of courfe Unlefs a rehearinofbe de-
fired. Every petition for a rehearing muft be figned by two coun-
fel of character, ufually fuch as have been concerned in the
caufe, certifying that they apprehend the caufe is proper to be

reheard.

b Stat. 3 Geo. II. c. 30 See pag. 453,

454 Private Book III.

reheard. And upon the rehearing all the evidence taken in the
caufe, whether read before or not, is now admitted to be read :
becaufe it is the decree of the chancellor himfelf, who only now
fits to hear reafons why it (hould not be enrolled and perfected ;
at which time all omiilions of either evidence or argument may
be fupplied". But, after the decree is once figned and enrolled,
it cannot be reheard or reclihed, but by bill of review, or by
appeal to the houfe of lords.

^ytjt^>-tku>' A BILL of review may be had upon apparent error in judg-
ment, appearing on the face of the decree; or, by fpecial leave
of the court, upon oath made of the difcovery of new matter or
evidence, which could not poilibly be had or ufed at the time
when the decree paffeti. But no new evidence or matter then in
the knowlege of the parties, and which might have been ufed
before, ihall be a fuiEcient ground for a bill of review.

^yzAZ-^j^

iJi An appeal to parliament, that is to the houfe of lords, is
th edernier refort of the fuhgect who thinks himfelf aggrieved
by any interlocutory order or final determination in this court :
and it is effedled by petition to the houfe of peers, and not by
writ of error, as upon judgments at common law. This juriif-
dicfcion is faid^ to have begun in i8 Jac. I. and certainly the firfl
petition, which appears in the records of parliament, was pre-
ferred in that year^j and the firft that was heard and deteripined
(though the name of appeal was then a novelty) was presented in
a few months aftei^: both levelled againft the lord keeper Ba-
con for corruption, and other mifbehaviour. It was afterwards
warmly controverted by the houfe of commons in the reign of
Charles the fecond*^. But this difpute is now at reft'': it being
obvious to the reafon of all mankind, that, when the courts of
equity became principal tribunals for deciding caufes of property,
a rcvifion of their decrees (by way of appeal) became equally ne-

celTary,

c Gilb. Rep. iji, 152- f Ihid. 3, ", n Dec. i6i\.

A Coin.joum. 13 Mar. 1704, g Com. jotirii. i!> Nov. 1675, &c.

e Loid's journ. »3 Mar. i<Sio. h Show. Pitrl. C. 81.

Ch. 27. Wrongs. 455

ceffary, as a writ of error from the judgment of a court of law.
And, upon the fame principle, from decrees of the chancelk>r
relating to the commiflioners for the diffolution of chauntries,
<b'c^ under the flatute 37 Hen. VIII. c. 4. (as well as for chari-
table ufes under flatutc 43 Eliz. c. 4.) an appeal to the king in
parliament was always unqueflionably allowed'. But no new
evidence is admitted in the houfe of lords upon any account ; this
being a diftinct jurifdjclion": which differs it very coniiderably
from thofe inftances, wherein the fame jurifidicftion revifes and
corrects it's own ads, as in rehearings and bills of review. For
it is a practice unknown to our law, (though conftantly followed
in the fpiritual courts) when a fuperior court is reviewing the
fentenceof an inferior, to examine thejuflice of the former de-
cree by evidence that was never produced below. And thus much
for the general method of proceeding in the courts of equity.

iDukc'schar. ufes. ^i. k Gilb.Rep, 155, i5fi.

THE END OF THE THIRD BOOK,

To the Encouragers of L I T E R A T U R E.

TH E Fourth Volume of Blackftone's Commentaries now in the Prefs,
will be publiflied with great Expedition : And as many of the Subfcri-
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An interefting APPENDIX to Sir JViliiam Black/lone'^
Commentaries on the Laws of England.

CONTAINING,

I. Prlefllefs Remarks on fome Paragraphs in the fourth Volume
of Blackftone^ Commentaries, relating to the DifTenters.

II. Bladftone's Reply to Briefikfs Remarks.

III. Pnejllefs Anfwer to Blackjlone\ Reply.

IV. The Cafe of the late Election of the County of Middlefex
confidered on the Principles of the Conftitution and the Au-
thorities of Law. '

V. Furneaux's Letters to the Hon. Mr. Juftice Bladflone^ con»
cerning his Expolition of the A<5t of Toleration, and fome Po-
fitions relative to Religious Liberty, in his celebrated Com-
mentaries on the Laws of England. ,

VI. Authentic Copies of the Argument of the late Honourable
Mr. Juftice Fojler in the Court of Judges Delegates, and of the
Speech of the Right Honourable Lord Mansfield in the Houfe
of Lords, in the Caufe between the City of London and the
Difl'enters.

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Philadelphia t July 20, 1772.

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APPENDIX,

Proceedingt on a JVril cf Right Patent.

§. I. IVrit o/'RiGHT patent in the Court Baron.

GEORGE the fecond by the grace of God of Great Britain,
France, and Ireland king, defender of the faith, and fo forth,
to Willoughby earl of Abingdon, greeting. JVe command you
that ^vithout delay you hold fall right to William Kent efquire, of
one meffiiage and twenty acres of land with the appurtenances in
Dorchefter, which he claims to hold of you by the free fervice of
one penny yearly in lieu of all fervices, Oi which Richard Allen
deforces him. And unlefs you fo do, let the fheriifof Oxfordfliire
do it, that we no longer hear complaint thereof for defeft of right.
Wit7iefs ourfelf at Weflminfter, the twentieth day of Au^juft, in the
thirtieth year of our reign.

Pledges of Profecution,) I,. , , '
^ ; Richard Roe.

§. 2. Writ of To-LT, to remove it /«/</ /^^ County Court.

Charles Morton, efquire, flieriff of Oxfordfliire, to John Long
bailiff errant of our lord the king and of myfelf, greeting. Becaufe
by the complaint of William Kent efquire, perfonally prefent at my
county-court, to "wlt, on Monday the fixth day of September in the
thirtieth year of thereign of our lord George the fecond by the
grace of God of Great Britain, France, and Ireland king, defender
of the faith, and fo forth, at Oxford in the fhire houfe there holden,
I am informed, that although he himfelf the writ of our fald lord
the king of right patent diretfted to Willovighby earl of Abingdon,
Vol. IIL Kkk for

ii. • A P P E N D I X.

for this that he fhould hold full right to the faid William Kent of
one n^efluage and twenty acres of land with the appurtenances in
Dorchefter within my faid county, of which Richard Allen de-
forces him, hath brought to the faid Willoughby earl of Abing-
don ; yet for that the faid Willoughby earl of Abingdon favouf-
eth the faid Richai-d Allen in this part, and hath hitherto delay-
ed to do full right according to the exigence of the faid writ, I
command you on the part of our faid lord the king, firmly en-
joining, that in your proper perfon you go to the court baron of
the faid Willoughby earl of AbingJou at ,. Jorchefter aforefaid,
and take away the plaint, which there is between the faid William
Kent and Richard Aiiea by the faid writ, into my county court
to be next holden ; and fummon by good fummoners the faid
Richard Allen, that he be at my county court on Monday, the
fourth day of Oflober next coming at Oxford in the fhirahoufe
there to be holden, to anfwer to the faid William Kent thereof.
And have you there then the faid plaint, the fummoners, and this
precept. Gkai in my coimty court at Oxford in the Ihirehoufe,
the fixth day ot September, in the year aforefaid.

§. 3. Writ ofP OUR, to remove it into the Court of Common Pleas.

GEORGE the fecond, by the gr'^ce of God of Great Britain^
France, and Ireland king, defender of the faith, and fo forth, to
the flieriff of Oxfordfhire, greeting. Put, at the requeft of William
Kent, before our juftices at Weftrainfter ou the morrow of All
Souls, the plaint which is in your county court by our writ of
right, between the faid William Kent demandant, and Richard
Allen tenant, of one mefiuage and twenty acres of land with the
appurtenances in Dorchei^er; and fummon by good fummoners
the faid Richard Allen, that he be then there, to anfwer to the faid
William Kent thereof. And have you there the fummoners and
this writ. Witnefs ourfelf at Weftminfter, the tenth day of Sep-
tember, in the thirtieth year of our reign.

§. 4. ^r/V o/' Right, quia Domlnus remifit Curiam.

GEORGE the fecond, by the grace of God of Great Bri-
tain, France, and Ireland king, defender of the faith, and fo
forth, to the (herifF of Oxfordfliirc, greeting. Comnand Richard
Allen, that he juftly and without delay render unto William
Kent one mcffuage and twenty acres of land with the appur-
tenances in Dorchefter, which he claims to be his right
and inheritance, and whereupon he complains that the a-
forefaid Richard unjuftly deforces jhim, And unlefs he fliall

in

APPENDIX.

fo do, and If ihe faid William fliall give you fecurity of profecut-
ino- his claim, thenfummon by good fummoners the faid Richard,
that he appear before our juftices at Weftminfter on the morrow
of All Souls, to ihew wherefore he hath not done it. And have
you there the fumraouers and this writ. Witnefs ourfelf at Weft-
minfter, the twentieth day of Auguft, in the thirtieth year of our
reio-H. Becaufc Willoughby earl of Abingdon, the chief lord of
that fee, hath thereupon rcmifed unto us his court.

Pledges of C John Doe. Sunimoners of the
profecution, ^ RichardRoe. within named Richard

-Jr"

John Den.

chard Fen.

N'

sheriff's return^

§ . 5 . The Record, nvith award of Battel.

Pleas at Weftminfter before, fir John Willes knight and his^bre-^
thren juftices of the bench of the lord the king at Weftrainfter,
of the term of faint Michael in the thirtieth year of the reign of
the lord George the fecond, by the grace of God of Great
Britain, France and Ireland, king, defender of the faith, &c.

Count.

Oxon, 7 William Kent, efquire, by James Parker his attorney, ^ -
to wit. 5 demands againft Richard Allen, gentleman, one
meiruage and twenty acres of land with the appurtenances, in
Dorchefter, as his right ind inheritance, hy writ of the lord the ^ . .^^

1- r • 1. f /- 117-11 UL I r Au- J 1. t.- ri j T)omtnuS rcmtfit

kmg or right, becuuje Willoughby earl oi Abingdon the cniei lord curiain.
of that fee hath now thereupon rcmifed to the lord the king his
court, /^nd ivhereupofi he faith, that he himfelf was feized of the
tenements aforefaid, with the appurtenances, in his demefne
as of fee and right, in the time of peace, in the time of the lord
George the firft late king ot Great Britain, by taking the efplecs
thereof to the value* [«ften fhillings, and more, in rents corn,
and grafs.] And that fuch is his right he offers [fuitand good
proof.] //;?(/ the faid Richard Allen, by Peter Jones his attorney
comes and defends the right of the faid William Kent, and his
feifin, when [and where it Ihall behove him.] and all [that con-
cerns it,] and whatfoever [he ought to defend,] and chiefly the
tenements aforefaid with the appurtenances, as of fee and right,
^namely, one raefluage and twenty acres of land, with the appur-
tenances, in Dorehefter.] Afjd this he Is ready to defend by the
body of his free man, George Rumbold byname, whoisprefenthere Wager of Battcu
in court ready to defend the fame by his body, or in what manner

K k k 2 focver

• N.B. The clanfe? between hooks, in this aiiil the fubfequent numbers of ths
^jn^endlx, aye ufually no otbetwifc cxjrcfieJ ia the records than bj an «^f.

Efplees»

Defence,

XV

APPENDIX.

N". I.

Replication.

Jiiindcr of
Battel.

Gages given.

Award of Dat'
tel.

Conti,

inuance.

Champions ap-
pear.

Adjournment

to TotbiU field.

foever the court of the lord the king fliall confider that he ought
to defend. And if any mifchance fliould befal the faid George
(which God defend) he is ready to defend the fame by another
man, who [is bounden aad able to defend it.] Jnd the faid
William Kent faith, that the faid Richard Allen unjuftly defends
the right of Jiim the faid William, and his feifin, ^c, and all, ^c,
and whatfoever, 6'f, and chiefly of the tenements aforefaid with
the appurtenances, as of fee and right, <fyc ; becaufe he faith,
that he himfelf was feifed of the tenements aforefaid, with the
the appurtenances, in his demefne as of fee and right, in the time
of peace, in the time of the faid lord George the firft late king
of Great Britain, by taking the efplees thereof to the value, ^c.
Jnd that fuch is his right, he is prepared to prove by the body of
his freeman, Henry Broughton by name, who is prefent here in
tourt ready to prove the fame by his body, or in what manner
foever the court of the lord the king ftiall confider that he ought
to prove ; and if any mifchance Ihould befal the faid Henry
(which God defend) he is ready to prove the fame by another
man, ,who <6c. And hereupon it is demanded of the faid George
and Henry, whether they are ready to make battel, as they before
have waged it : who fay that they are. Jnd the fame George Rum-
bold giveth gage of defending, and the faid Henry Broughton .
giveth gage of proving ; and> fuch engagement being given as
the manner is. It is demanded of the faid William Kent and
Richard Allen, if they can fay any thing wherefore battle ought
not to be awarded in this cafe ; who fay that they cannot. There-
fore it is confiderfd, that battel be made thereon, ^c. And the faid
George Rumbold findeth pledges of battel, to wit, Paul Jenkins
and Charles Carter; and the faid Honry Broughton findeth alfo
pledges of battle, to wit, Reginald Read and Simon Tayler.
And thereupon day is here given as well to the faid William Kent as
to the faid Richard Allen, to wit, on the morrow of faint Martin
next coming, by the aflent as well of the faid William Kent as
of the faid Richard Allen. And it is commanded that each of
them then have here his champion, fufficiently furnifhed with com-
petent armour as becomes him, and ready to make thebattle afore-
faid : and that the bodies of them in the mean time be fafely kept,
on peril that fhall fall thereon. At which day here come as well the
faid William Kent as the faid Richard Allen by their attorneys
aforefaid, and the faid George Rumbold and Henry Broughton in
their proper perfons likewife come, fufficiently furnilhed with
competent armour as becomes them, ready to make the battel
aforefaid, as they had before waged It. And hereupon day is
further given by the court here, as well to the faid William
Kent as to the faid Richard Allen, at Tothill near the city of
Weftminfter in the county of Middlefex, to wit, on the morrow of
the purification of the blelfed virgin Mary next coming, by the affent

as

APPENDIX. V

. as well of the Hud William as of the aforefaid Richard, And it
is commanded, that each of them have then there his champion,
armed in the form aforefaid, ready to make the battel aforefaid,
and that their bodies in the mean time, isc At which day here,
to wit, at Tothill aforefaid comes the faid Richard Alien by his
attorney aforefaid, and the faid George Rumbold and Henry
Broughton in their proper perfons likewife come, fufficiently
furnilhed with competent armour as becomes them, ready to
make the battel aforefaid, as they before had waged it. And
the faid William Kent being folemnly called doth not come, nor
hath profecuted his writ aforefaid. Therefore it h confsderedt that
the fame William and his pledges of profecuting, to wit, John fuit
Doe and Richard Roe, be in mercy for his falfe complaint, and
that the fame Richard go thereof without a day, (ire, and alfo Final Judg-
that the faid Richard do hold the tenements aforefaid with the Defendant,
appurtenances, to him and his heirs, quit of the faid Williamand
his heirs, for ever, ^c.

I'laintiflfnon-

§. 6. Trial hy the grand Ajfife.

Mife.

Tenclcr of the

dzmi-mark.

"" . And the faid Richard Allen, by Peter Jones his attor- Defence.

ney comes and defends the right of the faid WiUiam Kent, and
his feifm, when, isc, and all, <bc, and whatfoever, 6^. and chiefly
of the tenements aforefaid with the appurtenances, as of fee and
right, <bc^ and puts himfelf upon the grand affife of the lord the
king, and prays recogmition to be made, whether he himfelf hath
greater right to hold the tenements aforefaid with the appurtenan-
ces to him and his heirs as tenants thereof as he now holdcth them»
or the faid William to have the faid tenements with the appurte.
nances as he above demandeth them. And he tendershere in court
fix fliillings and eight-pence to the ufe of the lord the now king,
<bc, for that, to wit, it may be inquired of the time [of the feifin
alleged by the faid William.] And he therefore prays, that it
may be inquired by the aflife, whether the faid William Kent was
feifed of the tenements aforefaid with the appurtenances in his
demefne as of fee in the time of the faid lord the king George
the firll, as the faid Willi,am in his demand before hath alleged.
Therefore it is commanded the fheriff, that he fummon by good
fummoners four lawful knights of his county, girt with fwords, the kni^kts
that they be here on the oftaves of faint Hilary next coming to
make election of the affife aforefaid. The fame day is given as well
to the faid William Kent as to the faid Richard Allen ; here, ijc.
At which day here come as v/ell the faid William Kent as the faid
Richard Allen ; and the fheriff, to wit, fir Adam Alilone knight
now returns, that he hadcaufedto be fummoned Charles Stephens Return;
Randal Wheler, Toby Cox; and Thoaias Munday, four

lawful

.9.:mmons of

a

APPENDIX.

N«. I.

Elefliott of the
Jury.

Venire facias.

Jury fworn.

VerdicH: for the
Plantiff.

Judgement,

lawful knights 6f his county, girt with fwords, by John Doe
and Richard Roe his baihiFs, to be here at the faid 0(5taves of
faint Hilary, to do as the faid writ thereof commands and requires ;
and that the faid fummoners, and each of them, are mainprized
by John Day and James Fletcher. Whereupon the faid Charles
Stephens, Randal Wheler, Toby Cox, and Thomas Munday,
four lawful knights of the county aforefaid, girt with fwords, be-
ing called, in their proper perfons come, and, being fworn, upon
their oath in the prefence of the parties aforefaid chofe of them-
selves and others twenty four, to wit, Charles Stephens, Randal
Wheler, Toby Cox, Thomas Munday, Oliver Greenway, John
Boys, Charles Price, knights, Daniel Priace, William Day, Roger
Lucas, Patrick Fleming, James Harris, John Richardfon,
Alexander Moore, Peter Payne, Robert Quin, Archibald Stuart,
Bartholomew Norton, and Henry Davis, efquires, John Porter,
Chriftopher Ball, Benjamin Robinfon, Lewis Long, William
Kirby, gentlemen, good and lawful men of the county aforefaid,
who neither are of kin to the faid William Kent, nor to the faid
Richard Allen, to make recognition of the grand affife aforefaid,
^Therefore it is commanded the (heriiF, that he caufe them to come
here from the day of eafter in fifteen days, to make the recognition
aforefaid. The fame day is there given to the parties afore-
faid. At which day here come as well the faid William Kent
as the faid Richard Allen, by their attorneys aforefaid, and the
recognitors of the affife whereof mention is above made being
called come> and certain ©f them, to wit, Charles Stephens,
Randal Wheler, Toby Cox, Thomas Munday, Charles Price,
knights, Daniel Prince, Roger Lucas, William Day, James Har-
ris, Peter Payne, Robert Quin, Henry Davis, John Porter,
Chriftopher Ball, Lewis Long, and William Kirby, being elefled,
tried, and fworn, upon their oath fay, that the faid William Kent
hath more right to have the tenements aforefaid with the appur-
tenances to him and his heirs, as he demandeth the fame, thaa
the faid Richard Allen to hold the fame as he now holdeth them,
according as the faid William Kent by his writ aforefaid hath
fuppofed. therefore it is confidered, that the faid William Kent do
recover hisfeifm againft the faid Richard Allen of the tenements
aforefaid with the appurtenances, to Iwm and his heirs, quit of
the faid Richard Allen and his heirs, for ever ; and the fai4
Richard Alien in mercy, <bc»

N<?. 11,

APPENDIX.

vn

N". ir.

N^J. 11.

Proceedings on an ABiojt cf Trefpaft in Ejectment,
by Original in the King'/ Bench.

§. I . The Original Writ.

/^EO RG E the fecond by the grace of God of Great Britain, sifecmt tefe^

France, and Ireland king defender of the faith, and fo fgrth; »"""<»
to the (herifF of Berkfliire greeting. ^Richard Smith fliall give
you fecurity of profecuting his claim, then put by gage and fafe
pledges William Stiles, late of Newbury, gentleman, fo that he
be before us on the morrow of All-Souls, wherefoever we fhall
then be in England, to fliew wherefore with force and arms he
entered into one meffuage, with the appurtenances, in Sutton,
which John Rogers, cfquire, hath demifed to the aforefaid
Richard, for a term which is not yet expired, and ejected him
from his faid farm, and other enormities to him did, to the great
damage of the faid Richard, and againfl: our peace. And have
you there the names of the pledges, and this writ. Witnefs our-
felf at Weftminfter, the twelfth day of Odober, in the twenty
ninth year of our reign.

Pledges of C John Doe. The within named Wil- C John Den. sheriff's Ktuni,
profecution, ) Richard B oe. Jiam Stiles is attached ) RichardFen.

by pledges,

§. 2. Copy of the Declaration againfl the cafual Eje^or; luho givej
Notice thereupon to the Tenant in Pojfeffion.

Michaelmas, the 29th of king George the fecond,

Berks, C William Stiles, late of Newbury in the faid county,
to wit, ^ gentleman, was attached to anfwer to Richard
Smith, of a plea, wherefore with force and arms he entered into
one meffuage, with the appurtenances, in Sutton in the county
aforefaid, which John Rogers efquire demifed to the faid
Richard Smith for a term which is not yet expired, and
ejcded him from his faid farm, and other wrongs to hinj
did, to the great damage of the faid Richard, andagaiaft the peace

of

Declara^on,

Xlii

APPENDIX.

N". II.

of the lord the king, &c. And whereupon the fald Richard by
Robert Martin his attorney complains, that whereas the faid
John Rogers on the firft day of Oftober in the twenty ninth year
of the reign of the lord the king that now is, at Sutton aforefaid*
had demifed to the fame Richard the tenement aforefaid, with the
appurtenances, to have and to hold the faid tenement, with the
apurtenanances, to the faid Richard and his affigns, from the feafl:
of faint Michael the archangel then lad paft, to the end and term
of five years from thence next following and fully to be complete
and ended, by virtue of which demife the faid Richard entered
into the faid tenement, with the appurtenances, and was thereof
pofTefTed ; and, the faid Richard being fo pofTelTed thereof, the
faid William afterwards, that is to fay, on the faid firft day of
Oftober in the faid twenty ninth year, with force and arms, that
is to fay, with fwords, ftaves, and knives, entered into the faid
tenement, with the appurtenances, which the faid John Rogers
demifed to the laid Richard in form aforefaid for the term afore-
faid Which is not yet expired, and ejeded the faid Richard out of
his faid farm, and other wrongs to him did, to the great damage
of the faid Richard, and againft the peace of the faid lord the
liing; whereby the faid Richard faith, that he is injured and
damaged to the value of twenty pounds. And thereupon he
brings fuit, &c.

Martin, for the plant! fF.
Peters for the defendant

]

Pledges of C John Doe.
profecution, ^ Richard Roc.

Notice.

Mr George Saunders,

I am informed that you are in pofleffion of, or claim title to,
the premifcs mentioned in this declaration of eje^ment, or to
fome part thereof; and I being fued in this adtion as a cafual
ejeaor, and having no claim or title to the lame, do advife you
to appear next Hilary term in his majefty's court of king's bench
at Weftminfter, by fome attorney of that court, ani then and
there, by a rule to be made of the fkme court, to caufe yourfelf
to be made defendant in my ftead ; otherwife I fhall fuffer judg-
ment to be entered againft me, and you will be turned out of
pofleffion.

J. January^ I'JS^-

Your loving friend,

William Stiles.

§. 3. Th

APPENDIX. ix

N«. IL

§. 3. The Rule of Court.
" Hilary Terrrit in the twenty ninth Tear of King George the fcond,

Berks, 7 ^^ " ordered by the court, by the aflent of both parties, j,^ .^^^ ^ ^.

to wit. 5 and their attorneys, that George Saunders, gentle- stiles; for one

man, may be made defendant in the place of the now defendant ^1^^ "Tp^ane-

William Stiles, and (hall immediately appear to the plnrntifF's n3nccs in mu-

aaion, and fhall receive a declaration in a plea of trelpifs and '""' onj'^e'le-

• . ' mile ot Joha

ejedment of the tenements in quedion, and mall immediately Rogers.
plead thereto, not guilty : and, upon the trial of the iflue, fliall
confefs leafe, entry and ouftcr, aad infift upon his title only. And
if upon trial of the iflue, the faid George do not confefs leafe,
entry, and oufter, and by reafon thereof the plaintiff cannot pro -
fecute his writ, then the taxation of cofts upon fuch no7iprof. fhall
ceafe, and the faid George fhall pay fuch colts to the plaintiff, as
by the court of our lord the king here fhall be taxed and adjudg-
ed for fuch his default in nonperformance of this rule ; and
judgment fhall be entred againft the faid William Stiles, now
the cafual ejedor, by default. And it is further ordered, that, if
upon the trial of the faid ifliie a verdid fhall be given for the de-
fendant, or if the plaintiff fhall not profecute his writ, upon any
other canfe, than for the not confciring leafe, entry, and oufter as
aforefaid, then the leflTor of the plaintiff Ihall pay cofts if,the
plaintiff himfelf doth not pay them.

Martin, ifor the plaintiff.
Newman, for the defendant.

By the CourC

§ 4. The Record-

Pleas before the lord the king at Weftminfter, of the term of faint
Hilary, in the twenty ninth year of the reign of the lord Ge o rg e
the fecond by the grace of God of Great Britain, France and
Ireland king, defender of the faith, <ijc.

Berks, -) George Saundcrt, late of Sutton in the county aforefaid^
to wit. 5 gentleman, was attached to anfwer R.ichard Smith, ot
a plea, wherefore with force and arms he entered into one
meffuage, with the appurtenances, in Sutton, which John
Rogers efquire, hath demifed to the faid Richard for a teroa
which is not yet expired, and ejefled bim from his faid farm,
and other wrongs to hina did, to the great damage of
Vol. III. L 1 1 ^^«

APPENDIX.

N". TI.

Declaration, or

Count.

Defence.

Plea, not gull-

nine.

Ventre awajded.

Refpitc, for de-
fault of jurors.

JSyi^riur^

the faid Richard, and againft the peace of the lord the Icing
that now is, /^W 'wherenpon the faid IvicharJ by Robert
Martin his attorney cdmpiafn<;, that wherea"; the faid John
Rogers on the firft day of Odlober in \he twenty ninth year
of the reign of ths lord the king that now is, at Sutron aforefa'id.
had demifed to the fame Richard the tenement aforefaid, with the
appurtenances, to have and to hold the faid tenenf^ent, with the
appurtenances, to the faid Richard -rd his affigns, from the feaft
of faint Michael the archangel then laft paft, to the end . nd term
of five years from thence next following and fully to be complete
and ended, by virtue of which deraife the faid Richard entered
into the faid tenement, with the appurtenances, and was thereof
pofTefTed ; and, the faid Richard being fo polfefled thereof, the
iaid George afterwards, that is to fay^ on the firft day of
• Odlober in the faid twenty ninth year, with force and arms, that
is to fayj with fwords, ftaves, and knives, entered into the faid
tenement, with the appurtenances, which the faid John Rogers
demifed to the faid Richard in form aforefaid for the term afore-
faid which is not yet expired, and ejeded the faid Richard out of
his faid farm, and other wrongs to him did, to the great damage
of the faid Richard, and againil the peace of the faid lord the
king; whereby the faid Richard faith, that he is injured and
endamaged to the value of twenty pounds. And thereupon hs
brings fuit, [and good proof.] /Ind the aforefaid George Saun-
ders, by Charles Newman his attorney, comes and defends the
forte and injury, when, [and where it ihall behove him ;] and
faith that he is no wife guilty of the trefpafs and ejeflment afore-
faid, as the faid Richard above complains againft him ; and there-
of he puts himfelf upon the country : and the faid Richard doth
likewife the fame : Therefore let a jury come thereupon before the
lord the king, on the oiflave of the purification of the bleffed
virgin Mary, whercfoever he fhall then be in England; who
neither [are of kin to the faid Richard, nor to the faid George ;3
to recognize [whether the faid George be guilty of the trefpafs
and ejedtment aforefaid :] becaufe as well [the faid George, as
as the faid Richard, between whom the difference is, have put
themfelveson the faid jury]. The fame day is there given to the
parties aforefaid. Afterwards the procefs therein, being continu-
ed between the faid parties of the plea aforefaid by the jury, is
ptit between thera in refpite, before the lord the king, until the
day of Eafter in fifteen days, whercfoever the faid lord the king
Ihall then be in Enghmd ; unlefs the juftices of the lord the king
afligned to take afljfes in the county aforefaid, (hall have come
before that time, to -wit, on Monday the eighth day of March, at
jReading in the faid county, by the form of the ftatute [in that cafe
provided,] by realon of the default of thejurors, [fummoned td ap-
pear as aforefaid.] At which day before the lord the kirig, at
Weftminaer, come the parties aforefaid by their attorneys afore-
faid and the aforefaid juftices of affifa, before whom [the jury a-

forcfaid

A P P E N D I X.

XI

forefiiid came] fcnt here their record before them had in thefc
words, to wit : JJlerwards, at the day and place within contain-
ed, before Heneage Legge, efquire, one of the barons of the exche-
quer of the lord the king, and firjohn Eardley Wilmot, knight,
one of the jullices of the faid Lord the king, afllgned to hold pleas
before the kinghimfelf,juftices of the faid lord the king, aiTigned to
take affifes in the county of Berks by the form of the ftatute [in
that cafe provided,] come as well the within named Richard
Smith, as the within written George Saunders, by their attorneys
within contained ; and the jurors of the jury whereof mention is
within made being called, certain of them, to wit Charles Hollo-
way, John Hookc, Peter Graham, Henry Cox, William Brown,
and- Francis Oakely come, and are f worn upon that jury; and
becaufe the reft of the jurors of the fame jury did not appear,,
therefore others of the by-(ianders being chofen by the fherifF, at
the requeft of the faid Richard Smith, and by the command of the p^^ijjj^^
jufticesaforefaid, are appointed anew, whofe names are affixed to
the panel within written, according to the form of the ftatute in.
fuch cafe made and provided ; which faid jurorsj fo appointed a-
new, to wit, Roger B^con, Thomas Small, Charles Pye, Edward
Hawkins, Samuel Roberts, and Daniel Parjcer, b^ing Ukewife cal-
led, come ; and together with the other jurors aforefaid befor-e
impanelled and fworn, being eledtcd, tried, and fworn, to fpea];
the truth of the matter within contained, upon their oath fay, Veraia for the
that the aforefaid George Saunders is guilty of the trefpafs and PlanufF.
ejeiftment within-written, in manner and fo'rm as the aforefaid
Richard Smith within complains againft him; and a/Tefs the da-
mages of the faid Richard Smith, on occafion of that trefpafs and
ejedment, befides his cofts and charges which he hath been put
unto about his fuit in that behalf, to ivyelve pence : and, for
thofe cofts and charges, to forty fhillings. Whereupon the faid
Richard Smith, by his attorney aforefaid, prayeth judgment ^-
gainft the faid George Saunders, in and upon the verdid; aforefaid
by the jurors aforefaid given in the form aforefaid ; and the faid
George Saunders, by his attorney ^'brefaid, faith that the court Motion inarral
liere ought not to proceed to give judgment upon the faid s^didt, of J^'^S'^-^^-^'
and prayeth that judgment againfthim the faid George Saunders,
in and upon the verdid aforefaid by the jurors aforefaid given in
the form aforefaid, may be flayed, by reafon that the faid verdi<fl
is infufficient and erroneous, and that the faiiie verdid may be
qualhed, and that the iffue aforefaid may be tried anew by-
other jurors to be afrefli impanelled. And, becaufe the court Cantbuancc
of the lord the king here is not yet advifed of giving their
judgment of and upon the premifes, therefore day thereof is
given as well to the faid Richard Smith as the faid George Saun-
ders, before the lord the king, until the morrow of the Afcenfion.
of our lord, wherefpever the faid lord the king fhall then be
in England, to hear their judgment of and upon the premifes, for
that the court of the lord the king is not yet advifed thereof,

LUa At

Xll

APPENDIX.

N^'. II.

Opinion of the
courc.

Jui'gment, for
the plaintiiT,

Cods.

Caftdtur pro fine.

Writofpofftf-
fion.

and return.

At which day before the lord the king, at Weflminfter, come the
parties aforefaid by their attorneys aforefaid : upon which the
record and matters aforefaid having been feen, and by the court
of the lord the king now here fully underftood, and all and fin«
gular the premifes having been examined, and mature deliberati-
on being had thereupon, for that it feems to the court of the lord
the king now here that the verdifl aforefaid is in no wife infuffici-
ent or erroneous, and that the fame ou^;Ijt not to be quaftied, and
that HO new trial ought to be had of the iflue aforefaid. 7here'
fore it is confidered, that the f?.id Richard do recover againft the
faid George his term yet to come, of and in the faid tenements,
with the appurtenances, and the faid damages affefled by the faid
jury in form, aforefaid, and alfo twenty feven pounds fix {hillings
and eight pence for his cofts and charges aforefaid, by the court of
the lord the king here awarded to the faid Richard, with his af-
fent, by way of increafe ; which faid damages in the whole a«
mount to twenty nine pounds, feven fhillings, and eight penpe.
And let the faid George be taken, [until he maketh fine to the
lord the king ] j^nd hereupon the faid Richard by his attorney
aforefaid prayeth a writ of the lord the king to be direfled to
the (heriffof the county aforefaid, to caufe him to have poflefljon
of his term aforefaid yet to come, of and in the tenements afore*
faid, with the appurtenances: and it is granted unto him, return-
able before the lord the king on the morrow of the holy Trinity,
wherefoever he fhall then be in England. At which day before
the lord the king, at Weftminfter, cometh the faid Richard by his
attorney aforefaid ; and the fheriif, that is to fay, fir Thomas
Reeve, knight, now fendeth, that he by virtue of the writ afore-
faid to him direded, on the ninth day of June laft part, did caufe
the faid Richard to have his polfeflion of his term aforefaid yet to
come, of and in the tenements aforefaid, with the appurtenances,
■3,% he was commanded.

m. III.

APPENDIX.

'Sam

N«. Ill*

N«. III.

Proceedingt on air A£lion ^ Debt, in the Court of common Pleas;
removed into the King's Bench by Writ of Error.

§. I. Original,

flE 0 RG E the fecond by the grace of God of Gi-eat Britalh, Traccibt.

France, and Ireland king defender of the faith, and fo forth;
to the (herifF of Oxfordfliire, greeting. Command Charles Long
iate of Burford gentleman, that juftly and without delay he
render to William Burton two hundred pounds, which he owes
him and unjuftly detains as he faith. And unlefs he fhall fo do,
and if the laid William Ihall make you fecure of profecuting his
claim, then fummon by good fummeners the atorefaid Charles*
that he be before our jultices at Weftminfler, on the odave of
faint Hilary, to fhew wherefore he hath not done it. And hav2
you there then the furamoners, and this writ. Witn^fs ourfelf ai
Wedminfter, the twenty fourth day of December, in the twenty
eighth year of our reign.

Pledges of f John Doe.
profecution. t Richard Koe.

Summoners ©f the within f Ro^er Morris.
named Charles Long. i Henry Johnfoa,

ShcriS's rctani.

§. 2, Vroccfs,

GEORGE the fecond by the grace of God of Great Bri- Attachment.
tain, France, and Ireland king, defender of the faith, and fo
forth ; to the (heriff of Oxfordfliire, greeting. Put by gage and ^one,
iafe pledges Charles Long, late of Burford gentleman, that he
be before our juftices at Weftminfter on the odave of the purifica-
tion of the blefled Mary, to anfwer to William Burton of a plea,
that he render to him two hundred pounds, which he owes hita
and unjuftly detains, as he faith ; and to Ihew wherefore he wag
not before our juftices at Weftminfter on ths 0(5l:ave of faint Hi-
lary, as he was lummoned. And have ther; then the names of
the pledges and this writ. Witnefs fir John Willes, knight, at
Weftminfter, the twenty third day of January in the tv.'enty eighth,
year of our reign.

The within named Charles Long is C Edward Leigh,
attachtid by pledges, 1. Robert Tanner.

GEORGE;

Sherlfi's r<tura.

XlV

A p p j: N D I X,

>TO. III.

I/'iJiiiti^ai.

- CE&itG E the fecond by the grace of God of Great Britain,
France> and Ireland king, defender of the faith, and fo forth, to
the fiierifF of Oxfordfhire, greeting. IVe command you that you
diftrein Charles Long, late of Burford, gentleman, by all his
lands and chattels within your bailivjick, fo that neither he nor
any one through him may lay hands on the fHme, until you fiiall
receive from us another command thereupon ; and that you an-
fwer to us of the iflues of the fame ; and that you have his body
before our juftices at Weftminfter from the day of Eafter in fifteen
days, to anfwer to William Burton of a plea, that he render to
him two hundred pounds which heoweshimandunjuftly detains,
as he faith, and to hear his judgment of his many defaults. Wit-
nefs fir John Willes, knight, at Weftminfter, the twelfth day pf
February in the twenty eighth year of pur reign.

Sherift's retarn. "^^ within-named Charles Long hath npthing in my baili-

i^ihil. wick, whereby he may be deftreincdo

Capias ai fef-
fondendum.

GEORGE the fecond by the grace of God of Great Britain,
France, and Ireland king, defender of the faith, and fo forth »
to the (herifF of Oxfordftiirc, greeting. JVe command you, that you
take Charles Long, late of Burford, gentleman, if he may be
found in your bailiwick, and him fifely keep, fo that you may
have his body before our juftices at Weftminfter, from the day
ofEafterin five weeks, to anfwer to William Burton, gentleraanj
of a plea that he render to him two hundred pounds, which he
owes him and unjuftly detains, as he faith : and whereupon you
have returned to our juftices at Weftmiafter, that the faid Charles
hath nothing in your bailiwick, whereby he may be deftreined.
And have you there then this writ. IVitnefr fir John Wilies,
knight, at Weftminfter the fixteenth day of April, ia the twenty
eighth year of our reign.

Sher5ff*s return.
2<fotteJiinventus.

leftttum capias.

The within named Charles Long is not found In my bailiwick,

GEORGE the fecond by the grace of God of Great Britain,
France, and Ireland king, defender of the faith, and fo forth ; to
the fheriff of Berkfhire greeting. /F^ command you, that yoi:^
take Charles Long, late of Burford, gentleman, if he may be
found in your bailiwick, and him fafely keep, fo that you may
have his body before our juftices at Weftminfter, on the morrow
of the holy Trinity, to anfwer to William Burton, gentleman,
of a plea, that he render to' him two hundred pounds, which
he owes him and unjuftly detains, as he faith : and whereupon
our fheriff of Oxfordfliire hath made a return td our juftices
at V/eftmin^er, at a certain day now part, that the aforefaid

Charles

APPENDIX. XV

Charles is noit found in his baih'wick ; and thereupon it is teftlfied jsjo jjj
in our faid court, that the aforefaid Charles lurks, wanders, and vy'"\^^'
runs about in your county. And have you there then this writ.
IViinefs fir John Willes knight, at Weftminfter the feventh day of
May, in the twenty eighth year of our reign.

By virtue of this writ to me dire^ed, I have taken the body of rj^ ..p
the within named Charles Long ; which I have ready at the day CfCz'c'erpw."™'
and place within contained, according as by this writ it is com-
raanded me.

«« Or upon the Return o/"Non eft inventus upon the frji Capias,
" the plantiff may fue out an Alias and a Pluries, and thence

" proceed to Outlawry ; thus:

*' GEO RG E the fecond by the grace of God of Great « ^//^^ ^^.^^^ .
*' Britain, France, and Ireland king, defender of the faith, and
"fo forth; to the (heriff of Oxfordfhire, greeting, /r^- command
*' you as formerly we commanded you, that you take Charles
«' Long, late of Burford, gentleman, if he may be found in
•' your bailiwick, and him fafely keep, fo that you may have his
" body before our juftices at Weftminfter, on the morrow of the
'• holy Trinity, to anfwer to William Burton, gentleman, of a
" plea, that he render to him two hundred pounds, which he
*' owes him and unjuftly detains, as he faith. And have ycu
" there then this writ. /-^/V;;,?// fir John Willes, knight, at Weft-
** minfter, the feventh day of May, in the twenty eighth year of
«« our reign.

« Sheriff's re-
" turn.
" Non ejl in*
" veiitus.

" Plurigs ^a-
*• pins.

" The wjthin-named Charles Long is not found in my bailiwick,

«' GEORGE thefecondbythegraceof God of Great Britain,
«< France, and Ireland king, defender of the faith, and fo forth ;
♦* to the flierifF of Oxfordlhire, greeting. We command you, as
«' we have more than once commanded you, that you take
** Charles Long, late of Burford, gentleman, if he may be found
" in your bailiwick, and him fafely keep, fo that you may have
«' his ^pdy before our juftices at Weftminfter, from the day of
*' the holy Trinity in three weeks, to anfwer to William Burton,
** gentleman, of a plea, that he render to him two hundred pounds,
«' which he owes him and unjuftly detains as he faith. And have
*« you there then this writ. Witnefs fir John Willes, ki^ight, at
«« Weftminfter, the thirtieth day of May, in the twenty eighth
« year of our reign.

<< The within-namtd Charles Long is not found In my bailiwick. «. n,rn.

GEORGE :^:t'"

SVi

A P P E N D I X.

NO. IIT.

L/y^^

<<

" Exi^i facias.

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** Pnmo ex~

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" aSiis:

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*• attus :

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** "Writ of pro-

*• cliiuatjon.

(C

«< GEORGE the fecond by the grace of God of Great Bri-
tain, France, and IreJand king, defender of the faith and fo
forth; to the ftieriff of Oxfordfhire, greeting. U^g eommandyou,
that you caufe Charles Longj late of Burford, gentleman, to
be requiredfrom county court to county court, until according
to the law and cuftom of our realm of England he be outlawed,
U"he doth not appear. And if he doth appear, then take him
and caufe -him to be fafely kept, fo that you may have his bo-
dy before our juftices at Weftminfter, on the morrow of All
Souls, to anfwer to Wilham Barton, gentleman, of a plea,
that he render to him two hundred pounds, which he owes
him and unjuftly detains, as he faith. And whereupon you
have returned to our juftices at Weftminfter, from the day of
the holy Trinity in three weeks, that be is not found in your
bailiwick. And have you there then this writ. Witnefs fir
John Willes, knight, at Weftminfter, the eigthteenth day oi
Juncj in the twenty eighth year of our reign.

" By virtue of this writ to me direfled, at my county court
held at Oxford in the county at Oxford, on Thurfday
the twenty firft day of June in the twenty ninth year of the
reign of the lord the king within written, the within- named
Charles Long; v,as required the firft time, and did not appear:
and at my county court held at OxforJ aforefaid, on Thurfday
the fourth day of July in the year atorefaid, the faid Charles
Long was required the lecond time, and did not appear : and at
my county court held at Oxford aforefaid, on Thurfday the
twenty firft day of Auguft in the year aforelaid, the faid Charles
Long was required the third time, and did mot appear: and at
ray county court held at Oxford aforefaid, on '1 huriday the
eighteenth day of September in the year atorefaid, the I'aiJ Char-
les Long was required the fourth time, and did not ay-pear:
and at my county court held ac Oxford aforefaid, on Thnr'day
the fixteenth day of Oftober m the year aforefaid, the faid
Charles Long was required the fifth time, and did not appear :
therefore the faid Charles Long, by the judgment of the coro-
ners of the faid lord the king, of the county aforefaid, accord-
ing to the law and cuftom of the kingdom of England, is out-
lawed.

'GEORGE the fecond by the grace of God of Great
*' Britain, France, and Ireland king, defender of the faith,
" and fo forth ; to the fheriff of Oxfordlhire, greetings Where-
*' as by our writ we have lately commanded you that you
" fliould caufe Charles Long, late of Burford, gentleman,
** to be required from county court to county court, until ac-
« cording to the law aad cuftom of our realm of England he
*" " fhould

APPENDIX. xvli

*' fKould be outlawed, if ha did not appear : and if he did appear, i;fo, HI.

*' then that you fliould take him and caufe him to befafely kept> •s^'^VX.^

" fo that you might have his body before ourjuftices atWeftmin-

" fter on the morrow of All-Souls, toanfwer to William Burton,

•' gentleman, of a plea, that he render to him two hundred

•' pounds, which he owes him and unjuftly detains, as he

•' faith: Therefore we command you, by virtue of the ftatute in

" the thirty firft year of the l.idy Elizabeth late queen of Eng-

" land made and provided, that you caufe the faid Charles

" Long to be proclaimed upon three feveral days according to

" the form of that ftatute : (whereof one proclamation fhall be

" made at or near the moft ufual door of the church of the

•« parilh wherein he inhabits) that he render himfelf unto you ;

*' fo that you may have his body before our juftices at Weftmin-

" fter at the day aforefaid, to anfwer the faid William Burton

"' of the plea aforefaid. And have you there then this writ.

" Witncfs fir John Willes, knight, at Weftminfter, the eighteenth

«' day of June, in the twenty eighth year of our reign.

<• By virtue of this writ to me direifled, at my county court «« Sheriff's re-
«« held at Oxford, in the county of Oxford, on Thurfday the ' ''■''"
«' twenty fixth day of June in the twenty ninth year of the reign <( fll^
" of the lord the king within written, I caufed to be proclaimed
«' the firft time ; and at the general quarter feffions of the peace,
<« held at Oxford aforefi.id on Tuefday the fifteenth day of July
" in the year alorefaid, I caufed to be proclaimed the fecond
<« time; and at the moft ufual door of the church ofBurford
«' within-written on Sunday the third day of Auguft In the year
«« aforefaid, immediately after dil^ine fervice, one month at the
" leaft before the within-named Charles Long was required the
«' fifth time, I caufed to be proclaimed the third time> that the
«' Hiid Charles Long fl-iould render himfelf unto me, as within
*' it is commrjided me.

'« GEORGE the fecond by the grace of God of Great Britain, ^ ^^^^^^^ ^^j^^
«' France, and Ireland king, defender of the faith, and fo forth ; *'r«m.
«' to the ftierifF of Berkftiire, greeting. Ife command you, that
«' you omit not by reafon of any liberty of your county, but that
«« you take Charles Long, Jaie of Btirford, in the county of Ox-
«« ford, gentleman, (being outlawed in the faid county' of Oxford.
«' on Thurfday, the fixteenth day of O^ober laft paft, at the fu't
" of William Burton> gentleman, of a plea of^ebt, as the fiieriff
<« of Oxfordftiire aforeiaid returned to our juftices at Weft-
" minftercn the morrow of All Souls then next enfuing) if the
" faid Charles Long may be found in your bailiwick ; and him
«< fafely keep, fo that you may have hisbody before our juftices at
<« Weftminfter, from the day of faint Martin in fifteen days, to do
« and receive what our court fliall confider concerning him intliii
Vol. III. Mmna beh?.:f.

x\nii

APPENDIX.

N°. m.

" behalf. Wiffiefs fir John Willes, knight, at Weftminfter, the
" fixth day of November in the twenty ninth year of our reign.

" Sheriff's rc-
«' turn.

" By virtue of this writ to me direfted, I have taken the body
" of the within named Charles Long ; which I have ready at the
" day and place within CQUtained, according as by this writ it is
*' commanded me.

" RillofMid-
" dlefex for
" trcjpafs ;

**ac cth^n in debt.

*' Sheriff's re-
" turn.
" Non eft hi'
♦' veutus.

'= Latitat,

" Ac etiam.

" §. 3. * Bl/l o/MiddleCex, afid Lzthzt ihtrupon hi the Court of

" King's Bench.

«< Middlefex, ^ '« The Sheriff Is commanded that he take

" to wit. 5 " Charles Long, late of Burford, in the

■' county of Oxford, if he may be found in his bailiwickj and him

« f^fely keep, fo that he may have his body before the lord the king

• at Weftminfter, on Wednefday next after fifteen days of Eaf-

' ter, to anfwer William Burton, gentleman, of a plea of

« trefpafS; {and alfo to a bill of the faid William againft theafore-

' faid Charles, for two hundred pounds of debt, according to

*' the cuftom of the court of the faid lord the king, before the

" king himfelf to be exhibited;] and that he have there then

•* this precept.

** The within-named Charles Long is not found in my bailiwick.

" GEORGE the fecond by the grace of God of jGreat Bri-
tain, France, and Ireland king, defender of the faith, and
fo forth ; to the ftieriff of Berkfhire greetine. Whereas we lately
commanded our fherifFof Middlefex, that he Ihould take Charles
Long, late of Burford, in the county of Oxford, if he might be
found in his bailiwick, and him lafely keep, fo thathe might be
before us at Weftminfler, at a certain day now pall, to anfwer un-
to William Burton, gentleman, of u plea of trefpafs ; \ancl alfo
to a bill of the faid William againft the aforefald Charles, for
two hundred pounds of debt, according to the cuftom of our
coui't, before us to be exhibited ;] and our faid IheriiF of Mid-
dlefex at that day returned to us that the aforcfaid Charles
was not found in his bailiwick ; whereupon on the behalf of the
aforefaid William in our court before us it is fufticiently attefted,
that the aforefaid Charles lurks, and runs about in your county :
Therefore we command you, that you take him, if heniay be found
in your bailiwick, and him fafcly keep, fo that you may have his
body before us at W^ftminfter oaTuefday next after five weeks

of

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* Note, th.it §. :?, and 5. 4. are the ufua! method of procefs, to compel an ap-
jpenrance, in the courts of ki,ig"s bench. SiViA exchequer-, in which the praflice of
«hofe courts docs principiily .iifTcr from' that of the court o( common picas : the
iuble^],uait ,t..ges of ^.Tucjedirg bsir.g ucarly uiikc hi them all.

APPENDIX.

xix

N". III.

(C

Ci'f : corpus.

«« of Eafter, to anfwer to the aforefald William of the plea [and
*' bill] aforefald : and have you there then this writ. IVHnefs fir
" Dudley Ryder, knight, at Weftminller, the eighteenth day of
*« April, in the twenty eighth year of our reign.

«' By virtue of this writ to me direfled, I have taken the body " Sheriff's re-
** of the within-named Charles Long; which I have ready at ^"'""
«' the day and place within-contfiined, according as by this writ
«• it is commanded me.

" §. 4. Writ c/" Quo minus in the Exchequer.

*• GEORGE the fecond by the grace of God of Great
Britain, France, and Ireland king, defender of the faith, and
fo forth; to theflieriifofBerkfliire, greeting. IVecomrnxxid, you
that you omit not by reafon of any liberty of your county, but
that you enter the fame, and take Charles Long, late of Burford
in the county of Oxford, gentleman, whereibever he fhall be
found in your bailiwick, and him fafely keep, fo that you may
have his body before the barons of our exchequer at Weft-
minfter, on the morrow of the holy Trinity, to anfv;er William
Burton our debtor of a plea, that he render to him two hun-
dred pounds, which he owes him and unjuflly detains, where-
by he is the lefi able to fatisfy us the debts which he owes us
at our faid exchequer, as he faith he can reafonably fliew that
the fame he ought to render : and have you there this writ.
Witticfs fir Thomas Parker, knight, at Weftminfter, the fixtll
day of May, in the twenty eighth year of our reign.

<<
<<
(I

(C

((

(C

C(

'» By virtue of this writ to me dire(!ted, I have taken the body « s],erifi's re-

«' of the within-named Charles Long ; which I have ready " turn.

<< before the barons within- written, according as within it is " ^^^* iorpus^
*' commanded me,"

^. Special Bail ; on the Arrcfl of the Defendant^ purfuant to the
Teftatum Capias, in page xiv.

Knoiv all men by thefe prefents, that we Charles Long of Bur-
ford in the county of Oxford, gentleman, Peter Hamond of Bix
in the faid county, yeoman, and Edvv'ard Thomlinfon of Wood-
flock in the faid county, innholder,are held and firmly bound to
Chriftopher Jones, efquire, fiierifF of the county of Berks, in four
hundred pounds of lawful money of Great Britain, to be paid to the
faid fherilF, or his certain attorney, e::cecutors, adminiftrators, or
affigns; for Avhich payment well and truly to be made, we bind
ourfelves and each of us by himfelf for the whole and in grofs,
our and every of our heirs, executors, and adrainlltrators, firmly

M m m 2 by

T?allbon<I,tothe
Jheriff.

XX

APPENDIX-

W. Til.

Recoprnizance
of ''afl, lijffore
the commiiTio*
ncr.

by thefe prefents, fealed with our feals. Dated the fifteenth day
of May in the twenty eighth year of the reign of our fovereign
lord George the fecond by the grace of God king of Great Britain,
France, and Ireland, defender of the faith, and fo forth, and in
the year of our Lord one thvoufand, feven hundred, and fifty five.
7"/ii? co7idit!OTi of this obligation is fuch, that if the above-boun-
den Charles Long do appear before the juftices of our fovereign
lord the king at Weftminfter, on the morrow of the holy Trinity,
to anfwer William Burton, gentleman, of a plea of debt of two
hundred pounds, then this obligation fhall be void and of none
effeft, or eiJe ftiall be and remain in full force and virtue.

Sealed, and delivered, being
firft duly ftamped, in the
prefence of

Henry Shaw.

Timothy Griffith.

Charles Long. (L. S.)
Peter Hamond. (L. S.)
Edward Thomlinfon. (L. S.)

Tou Charles Long do acknowledge to owe unto the plaintiiF
four hundred pounds, and you John Rofe and Peter Hamond dq
ieverally acknowlege to owe unto the fame perfon the fum of two
hundred pounds apiece> to be levied upon your feveral goods and
chattels, lands and tenements, -upon condition that, if the defendant
be condemned in this adion, he fhall pay the condemnation, or
render himfelf a prifoner in the Fleet for the fame ; and, if he
fail fo to do, you John Rofe and Peter Hamond do undertake to
do it for him.

Trinity Term, 28 Geo H.
Bail-piece. Berks, ") Ofi a Ttjiatum capiat againft Charles Long, late of Bur-

to wit. 5 ford in the county of Oxford, gentleman, returnable
on the morrow of the holy Trinity, at the fuit of William Burton,
ef a plea of debt of two hundred pounds ;

The hail are, John Rofe, of Witney in the county of Oxford,
efquire.
' Peter Hamond, of BIx in the faid county, yeoman.

Richard Price, attorney"?
for the defendant. 3

The party himfelf in /400,
Each of the bail in £ 200.
Taken and acknowleged the tvi-enty eighth
day of May, in the year of our Lord one
thoufand, feven hundred, and fifty five,
de bene ejje, before me.

Robert Grove,
one of the commiflioncrs.

%.(,.rh

APPENDIX.

XXI

§. 6. The Record, eis removed hy Writ of'^^.-^Q%,

The Lord the king hath given in charge to his trufty and be-
loved fir John Willes, knight, his writ ck)fed in thefe v;ords :
GEORGE the fecond by the grace of God of Great Britain, France,
and Ireland king, defender of the faith, and fo forth ; to our
trufty and beloved fir John Willes, knight, greeting. Becaufe
in the record, and proccfs, and alfo m the giving of judgment,
of the plaint which was in our court before you, and your fel-
lows, our juftlces of the bench, by our writ, betv/een William
Burton, gentleman, and Charles Long, late of Burford in the
county of Oxford gentleman, of a certain debt of two hundred
pounds, which the faid William demands of the faid Charles, ma-
nifeft error hath intervened, to the great damage of him the faid
William, as wefrom his complaint are informed: we, being wilhng
that the error if any there be, fhould be correded in due manner,
and that full and fpeedy juftice fliould be done to the parties a-
forefaid in this behalf, do command you, that, if judgment
thereof be given, then under your feal you do diftin^ly and
openly fend the record and procefs of the plaint aforeiliid, witii
all things concerning them, and this writ ; fo that we may have
them from the day of Eafter in fifteen days, wherefoeverwe (hall
then be in England : that, the record and procefs aiorefaid be-
ing infpected, we may eaufe to be done thereupon, for correding
that error, what of right and according to the law and cuftom
of our realm of England ought to be done. JVitnefe ourfelfat
Weftminfter, the twelfth day of February, in the twenty ninth
year of our reign.

N^. III.
WVKJ

Writ of error.

The Record, andprocefs, whereof in the faid writ mention above Chief Juflke's
is made, follow in thefe words to wit :

Pleat at Weftminller, before fir John Willes, knight, and his
brethren, iuflices of the bench of the lord the king at Weft-
mlnfter, of the term of the holy Trinity, in the twenty eighth
year of the reign of the lord George the fecond by the grace
of God of Great Britain, France and Ireland king, defender of
the faith, ^c.

The record.

Oxon, ■) Charles Long, late of Burford in the county aforefaid,
to wit. 5 gentleman, was fummoned to anfwer William Burton,
of Yarnton in the faid county, gentleman, of a plea that he ren-
der unto him two hundred pounds, which he owes him and un-
juftly detains, [as he faith.] Jnd nvheretipcn the faid William, by
Thomas Gough his attorney, complains, that whereas on the
firft day of December, in the year of our lord one thoufand,
feven hundred, and fifty four, at Banbury in this county, the
faid Charles by his writing obligatory did acknowlege himfelf

to

Wat,

Declaration, or
count, on a
bond.

XXll

APPENDIX,

N". III.

Prnfert in curia.

Defence.

CyfT prayed of
the b<)i:u, and
conclition, viz.
to perform an
award.

laipirlaroe.

Conilauance.

Plea ;

>^o fach *war>3.

to be bound to the faid William in the fald fum of two hundft^i!
pounds of lawful money of Great Britain, to be paid to the (sLii.
William, whenever after the faid Charles fhould be thereto re-
quired; nevertheicfs the faid Charles (although often required)
hath not paid to the faid William the faid fum of two hundred
pounds, nor any part thereof, but hitherto altogether halh refuf-
ed, and doth ftill refufe, to render the fame ; wherefore he faith
that he is injured, and hath damage, to the value often pounds:
and thereupon he brings fait, [and good proof] y-nid he brings
here into court the writing obligatory afore fai d ; which teftines
the debt aforefaid in form aforefaid ; the date whereof is the day
and year before-mentioned. Jnd the aforefaid Charles, by Rich-
ard Price his attorney, comes and defends the force and injury
when [and where it ihall behove him,] and craves oyer of the
faid writing obligatory, and it is read unto him [in the form a-
forefaid :] he likewife craves oyer of the condition of the faid
writing, and it is read untohim in thefe words; <« The condition.
" of this obligation is fuoh, that if the above bounden Charles
«« I^ong, his heirs, executors, and adminiftrators, and every of
*' thtm, fliall and do from time co time, and at all limes hereaf-
" ter, well and truly Rand to, obey, obferve, fulfill, and keep, the
*' award, arbitrament, order, rule, judgment, final end, and de-
" termination, of David Stiles, of Woodftnck in the faid counly,
" clerk, and Henry BacoU) of Woodftock aforefaid, gentleman,
«« (arbitrators Indifferently nominated and chofen by and between
** the faid Charles Long and the above named William Burton,
*« to arbitrate, award, order, rule, judge, and determine, of all
" and all manner of actions, caufe or caufes of adlion, fuits,
*' plaints, debts, duties, reckonings, accounts, controverfies, tref-
*' pafies, and demands what'oever had, moved, or depending, of
•' which might have been had, moved, or depending, by and
" between the faid parties, tor any matter, caufe, or thing, from
'* the beginning of the world until the day of the date hereof)
" which the faid arbicrators fhall make and publifh, of or in the
«« premlfes, in wriang under their hands and feals, or otherwife
«« by word of mouth in the prefence of two credible witneffesjon
*' or before the firft day of January next enfuing the date hereof;
" then this obligation to be void and of none effed, or elfc
" to be and remain in full force and virtue." IV/^icfi being read
and heard, the faid Charles prays leave to imparl therein here un-
til the oftave of the holy Trinity ; and it is granted unto him.
The fame day is given to the faid William Burton here, 6c.
At which day, to wit, on the odave of the holy Trinity, here
commas well thefaid William Burton as the faid Charles Long, by
their attorneys aforefaid : and hereupon the faid William prays
that the faid Charles may anfwcr to his writ and count aforefaid.
j^/iJ the aforefaid Charles defends the force and injury, when, (ire,
aad faith, that the faid William ought not to have or maintain

his

APPENDIX.

XXIU

Replication ;
fctting forth an
award.

his faid afllon againft him ; becaufe he faiih, that thefaid David i®. HI.
Stiles and Henry Bacon, the arbitrators before named in thefaid
condition, did not make any fuch award, arbitrament, order,
rule, jnd'mient, final end, or determination of or in the prcmifes
above fpecified in the faid condition, on or before the hrft day of
January, in the conditon aforefaid above mentioned, according
to the form and efFefc of the faid condition : and this he is ready
to verify. Wherefore he prays judgment, whether the faid Wil-
liam ought to have or maintain his faid atftion thereof againft him;
fand that he may go thereof withoutaday.] ^/vi the aforefaid Wil-
liam faith, that for any thing above alleged by the faid Charles
in pleading, he ought not to be precluded from having his faid
a<5lion thereof againft him ; becaufe he faith, that after the making
of the faid writing obligatory, and before the faid fir ft day of
January, to wit, on the twenty fixth day of December, in the
year aforefaid, at Banbury aforefaid, in the prelence of two
credible witneifes, namely, John Dewof Charlbury, in the coun-
ty aforefaid, and Richard Morris of Wytham, in the county cf
Berks, tlie faid arbitrators undertook the charge of the award
arbitrament, order, rule, judgment, final end, and d.etermination
aforefaid, of and in the premifes fpecified in the condition afore-
faid : and then and there made and pubiidied their award by
word of mouth in manner and form following, that is to fay ;
The faid arbitrators did award, order, and adjudge, that he the
faid Charles Long ftiould forthwith pay t* the faid William Bur-
ton the fum of feventy five pounds, and that thereupon all diffe-
rences between them at the time of the making the faid writing
obligatory ftould finally ceafe and determine. And the faid
William further faith, that although he afterwards, to wit on the
fixth day ot January, in the year of our Lord one thoufand,
leven hundred, and fifty five, at Banbury aforefaid, requefted the
fiiid Charles to pay to him the faid William the faid feventy
five pounds, yet (by proteftation that the faid Charles hath not Frotejlando.
ftood to, obeyed, ob erved, fulfilled, or kept any part of the faid
award, whi-ch by him the faid Charles ought to have been ftood
to, obeyed, obferved, fulfilled, and kept) for further plea therein
he faith, that the faid Charles the faid feventy five pounds to the
faid William hath not hitherto paid : and this he is ready to veri-
fy. Wherefore he prays judgment, and his debt aforefaid, to-
gether with his damages occafioned by the detention of the faid
debt, to be adjudged unto him, ere. ///.ithe aforefaid Charles
faith, that the plea aforefaid, by him the faid William in manner
and form aforefaid above in his I'eplication pleaded, and the mat-
ter in the fame contained, are in no wife fufficieni; in law for che
faid William to have or maintain his action aforefaid thereupon
againft him the faid Charles ; to which the faid Charles hath no
r-eceffity, neither is he obliged by the U'.v of the lar.d in any man-
gier

Demurrer.

N^ III.

Caufes of de-
murrer.

Joinder in dc-
rjiwrrer.

Continuances,

Opinion of the
court :

Replication Jn-
iuScicr.t.

Judgment, for
the defendant.

^lercHS nihil
capiat per
hreve.

Amercement.

Cods,

xxiv A P P E N D I X.

ner to anfwer : and this he is ready to verify. Wherefore, for
want of a fufEcient replication in this behalf, the faid Charles, as
aforefaid, prays judgment, and that the aforefaid William may be
precluded from having his adion aforefaid thereupon againft
him, 6"^. And the faid Charles, according to the form of the
ftatute in that cafe made and provided, fhews to the court here
the caufes of demurrer following; to wit, that it doth not ap-
pear, by the replication aforefaid, that the faid^^Mpltrators made
the fame av'ard in the prefence of two credible witnefles on or
before the faid firft day of January; as they ought to have done,
according to the form and effeft of the condition aforefaid ; and
that the replication aforefaid is uncertain, infufficient, and wants
form. JkJ the aforefaid William faith, that the plea aforefaid
by him the ftid William in manner and form aforefaid above in
his replication pleaded, and the matter in the fame contained,
^re good and fufficient in law for the faid William to have and
maintain the faid adion of him the faid William thereupon a-
gainft the faid Charles; vhich faid plea, and the matter therein
contained, the faid William is ready to verify and prove as the
court fhall award : and becaufe the aforefaid Charles hath not
anfwered to that plea, nor hath he hitherto in any manner denied
the fame, the faid W illiam as before prays judgment, and his debt:
aforefaid, together with his damages occafioned by the detention
ot that debt, to be adjudged unto him, die. And becaufe the juf-
tices here will advife themfelves of and upon the premifes before
they give judgment thereupon, a day is thereupo-n given to the
parties aforefoid here, until the morrow of All Souls, to hear
their judgment thereupon, for that the faid juPiices here are not
yet advifed thereof. At which day here come as well the faid
Charles as the faid William, by their faid attorneys; and becauie
the faid juftices here will farther advife themfelves of and upon
the premifes before they give judgment thereupon, a day is farther
given to the parties aforefaid here until the oflave of faint Hilary,
to hear their judgment thereupon, for that the faid juftices here
are not yet advifed thereof. At which day here come as well
the faid William Burton as the faid Charles Long, by their
faid attorneys. Wherefore, the record and matters aforefaid
having been feen, and by the juftices here fully underftood
and all and fmgular the premifes being examined, and ma-
ture deliberation being had thereupon ; for that it fcems to the
faid juftices here, that the faid plea of the f;xid William Burton
before in his replication pleaded, and the matter therein con-
tained, are not fufficient in law, to have and maintain the
adion of the aforefaid William againft the aforefaid Charles;
therefore it is conJiJereJ, that the aforefaid AVilliam take no-
thing by his writ af orefal J, but that he and his pledges of pro-
fecuting, to wit, John Doe and Richard Roe, be in mercy
for his falfe complaint; auJ that the aforefaid Charles go
thei'cof 'Ailhout a day, eir^. Arid it is farther confiJered, that

th:

APPENDIX.

XXV

Execution.

GeHCral error

affigned.

Wilt of Scire fa-
cial, to hear er-
rors.

the aforefaid Charles do recover againft the aforefald William N". III.
eleven pounds and feven (hillings, for his cofts and charges by him
about his defence in this behalf fuftained, adjudged by the court
here to the faid Charles with his confent, according to the form
of the ftatute in that cafe made and provided : and that the
aforefaid Charles may have execution thereof, ^c.

After'Viards y to wit, on Wednefday next after fifteen days of
Eafter in this fame term, before the lord the king, at Wedinin-
fter comes the aforefaid William Burton, by Peter Manwaring
his attorney, and faith, that in the record and procefs aforefaid,
and alfo in the giving of the judgment in the plaint aforefaid,
it is manifeflly erred in this ; to wit, that the judgement afore-
faid was given in form aforefaid for the faid Charles Long againft
the aforefaid William Burton, where by the law of the land
judgment fhould have been given for the faid William Burton
againfl: the faid Charles Long : and this he is ready to verify.
And the faid William prays the writ of the faid lord the king, to
warn the faid Charles Long to be before the faid lord the king,
to hear the record and procefs aforefaid : and it is granted unto
him : by which the fherifF aforefaid is commanded that by good
[and lawful men of his bailiwick] he caufe the aforefaid Charles
Long to know, that he be before the lord the king from the
day of Eafter in five weeks, wherefoever [he fhall then be in
England,] to hear the record and procefs aforefaid, if [it fhall
have happened that in the fame any error fhall have intervened ;]
and farther [to do and receive what the court of the lord the
king (hall confider in this behalf.] The fame day is given to
the aforefaid William Burton. At 'which day before the lord the
king, at Weftminfter, comes the aforefaid William Burton, bv his
attorney aforefl^id : and the Iheriff returns that by virtue of the
writ aforefaid to him direded he had caufed the faid Charles
Long to know, that he be before the lord the king at the time
aforefaid in the faid writ contained, by John Den and Richard
Fen, good, ^c ; as by the fame writ was commanded him :
•which faid Charles Long, according to the warning giving him
in this behalf, here cometh by Thomas Webb his attorney.

Whereupon the faid William faith, that in the record and procefs r <r x
_'.... ■» j:.rrsr aliigneQ

aforefaid, and alfo m the givmg of the judgment aforefaid, it is afreto.
manifeftly erred, alleging the error aforefaid by him in the form
aforefaid alleged, and prays, that the judgment aforefaid for the
error aforefaid, and others, in the record and procefs aforefaid
being, may bereverfed, annulled, and entirely for nothing efteem-
ed, and that the faid Charles may rejoin to the errors aforefaid,
and that the court of the.'faid lord the king here may proceed to
the examination as well of the record and procefs aforefaid, as of
the matter afore faid above for error affigned. v^Wthe faid Charles Rejoinder.
faith, that neither in the record and procefs aforefaid nor in the Innulhejlerra"
Vol. IIL N n a ' givbg ''"*

sheriff's return.

Scire fed.

XXVl

APPEND IX.

N^J. III.

ContiRuaiice,

Opimon of the
court I

Judgment of the
common pkasxt'
verfed.

J'ld^ment, for
the plaintiff.

Defendant A-
pierced.

giving of the judgment aforefaid, in any thing is \\ttt erred:
and he prays in like manner that the court of the faid lord the
king here may proceed to the examination as well of the record
and procefs aforefaid; as of the matters aforefaid above for errof
affigned. /^nd becaufe the court ef the lord the king here is not
yet advifed what judgment to give of and upon the pfemifes»
a day is thereof given to the parties aforefaid, until the
morrow of the holy Trinity, before the lord the king, where-
f9^ver he fhall then be in England, to hear their judgment of and
upon the premifes, for that the court of the lord the king here
is not yet advifed thereoi. At which day before the lord the
king, at Weftminfter come the parties aforefaid by their
attorneys aforefaid : Whereupon, as well the record and procefs
aforefaid, and the judgment thereupon given, as the matters afore-
faid by the faid William above for error affigned> being fefin and
by the court of the lord the king here being fully underftood,
and mature deliberation being thereupon had, fdr that it ap-
pears to the court of the Lord the king here, that in the record
and procefs aforefaid, andalfo in the giving of the judgment afore-
faid it is manifeftly erred, therefore it is confJered, that the judg-
ment aforefaid, for the error aforefkid, and others in the record
and procefs aforefaid, be reverfed, annulled, and entirety for no-
thing efteemed ; and that the aforefaid William recover againft
the aforefaid Charles his debt aforefaid, and alfo fifty pounds fc(r
his damages which he hath fuftained, as well on occafion of the
detention of the faid debt, as for his colls and charges unto
which he hath been put about his fuit in this behalf, to the faid
William with his confent by the court of the lord the king here
adjudged. And the faid Charles in mercy.

Writ of cif.at
ad fathjaciin'
dum,

§. 3. Procefs of Execution.

G K 0 R C E the fecond by the grace of God of Great
Britain, France, and Ireland king, defender of the faith, and
fo forth; to the (herifFof Oxfordfhire, greeting. We command
you, that you take Charles Long, l:ite of Burford gentleman if he
may be found in your bailiwick, and him fafely keep, fo that you
ma.y have his body before us in three weeks from the day of the
holy Triaity, wherefoever we fltall then be in England, to fatisfy
William burton for two hundred pounds debt, which the faid
William Burton hath lately recovered againll him in our court
before us, and alfo fifty pounds, which were adjudged in our faid
court before us to thefaid William Burton, for his damages which
he hath fuftaiiied, as well by occafion of the detention of the faid
debt, as for his colls and charges to which he hath been put about
his fuit in thib behalf, whereof the faid Charles Long is convided,
as it appears to us of record : and have you there then this writ.

Witneri

APPENDIX.

xxvli

N". HI. ■

IVitne/r fir Thomns Denifon*, knight, at Weftmlnfter, the nine-
teenth day of June, in the twenty ninth yearof ourreigu.

By virtue of this writ to me diredled, I have taken the body of
the within-named Charles Long ; which I have ready before the Sheriff's return,
lord the king, at Weftminfter, at the day within- written, as ^cp^r^us.
within it is commanded me.

GEORGE thefecond by the grace of God of Great Bri-
tain, France, and Ireland king, defender of the faith, and fo
forth ; to the fheriflF of Oxfordftiire greeting- IVe command yo u
that of the goods and chattels within your bailiwick of Charles
Long, late of Burford, gentleman, you caufe to be made two
hundred pounds debt, which William Burton lately in our court
before us at Weftminfter hath recovered againft him, and alfo
fifty pounds, which were adjudged in our court before us to
the fald William, for his damages which he hath fuftained, as
well by occafion of the detention oi his faid debt, as for his
cofts and charges to which he hath been put about his fuit in this
behalf, whereof the faid Charles Long is convi<fled, as it appears
to us of record : and have that money before us in three weeks
from the day of the holy Trinity, wherefoever we fliall then be
in England, to render to the faid William of his debt and dama-
ges aforefaid: and have there then this writ. /^/V«(?// fir Thomas
Denifon, knight, at Weftminfter, the nineteenth day pf June, la
the twenty ninth year of our reign.

By virtue of this writ to me direfled, I have caufed to be made
of the goods and chatties of the within-written Charles Long two
hundred and fifty pounds; which I have ready before the lord
the king at Weftminfter at the day within-written, as it is withia
commanded me.

V/rlt of Fim
facias»

Sheriff's returr.
Fieri faL

The fenior puifne juftice : their bciug no chief juflice that term.

THE END,

?■

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