UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
17 M
ESSENTIALS OF THE LAW
IN TWO VOLUMES
VOL. I BLACKSTONE
VOL. 2 ELEMENTARY LAW
A REVIEW
BLACKSTONE'S COMMENTARIES
WITH EXPLANATORY NOTES
FOR THE USE OF
STUDENTS AT LAW
SECOND EDITION
BY
MARSHALL D. EWELL, LL. D.,
LATE PRESIDENT AND DEAN OF THE KENT COLLEGE OF LAW OF CHICAGO;
AUTHOR OF " EWELL ON FIXTURES," ETC., ETC.
ALBANY, N. Y.
MATTHEW BENDER & COMPANY,
INCORPORATED.
1915.
COPYRIGHT, 1882,
BY MARSHALL D. EWELL.
COPYRIGHT, 1915.
BY MATTHEW BENDER & COMPANY, INCORPORATED
-
ESSENTIALS OF THE LAW.
PREFACE TO SECOND EDITION.
The first edition of this series was published in 1882.
When the writer was first appointed Professor of Elemen-
tary Common Law in the Union College of Law of Chicago
in 1876, it became his duty, among other topics, to instruct
successive classes in Blackstone 's Commentaries He found
it necessary to study harder probably than his students,
and it was his practice to read pen in hand and to under-
score and annotate the important passages. With every
succeeding year these distinguishing marks and notes were
extended and elaborated, and formed the basis of the sys-
tem of differentiation of the text, which is the distinguish-
ing feature of this series. For twenty-seven successive
years this work continued with successive classes. In
making this revision the distinguishing features of the text
have been retained. In addition thereto, since the writer
no longer appears in person before classes of students with
oral explanations, it has been thought advisable to supple-
ment the text with explanatory notes, not merely for the
purpose of fortifying the text by authority, but to take the
place as far as possible of the former oral expositions and
thus make the text more understandable. At the same
time references have been made to such text books and lead-
ing cases as seemed best adapted to develop and amplify
the text. Instead of appending a glossary at the end of the
book, such terms as seemed to need definition or explana-
tion have been dealt with either in the text or notes as they
occurred, all new matter in the text being included within
brackets, thus : [ ] . Maxims in foreign languages have been
translated as they occurred. As the book is primarily in-
tended for students, it has not been loaded down with cases,
though it is believed that a reference to the elementary
principles contained in this series with the 'authors and
cases supporting them will be advantageous to every one
interested in the study or practice of law. In the text,
[v]
vi PREFACE TO SECOND EDITION.
notes, and interpolated books and chapters written by the
author, will, it is believed, be found a comprehensive
though brief review of the whole body of English and
American customary law, including statutes which by
reason of their all but universal adoption have become a
part of the general law of the land. To make these separate
books and chapters exhaustive would require a library;
but enough has been given to give a general though brief
review of the subjects treated; and the student is referred
to more exhaustive treatises for further explanations.
It- must be borne in mind that this work is essentially an
elementary treatise upon the common law. Long ex-
perience leads the editor to the conclusion that the best
preparation for a student is a thorough knowledge of the
common law, as distinguished from statutes; and that to
attempt to incorporate in this treatise modern statutes
would be harmful to the best interests of the student.
In absence of statutes to the contrary, the common law
everywhere furnishes the rule of decision; it also furnishes
rules for the interpretation and construction of statutes.
The common law is a creature of slow growth; whereas
statutes are too often ephemeral, multifarious and not well
considered. Always begin an investigation, therefore, with
the common law as a starting point, and read the statutes
thereafter. Defer a study of the statutes until acquainted
with the common law. This has been the rule of those
learned in the law from the time of Lord Coke down to the
present. It has always been a rule of conduct with the
writer to be as willing to impart instruction to students as
the students themselves were willing to receive instruction.
The study of law is at best difficult to the beginner; and he
who expects to excell must be prepared to devote years of
unremiting toil to its study. To remove some of the ob-
stacles and to make the first years of the novitiate of the
student more pleasant and profitable is the real object of
these volumes.
MARSHALL D. EWELL.
Chicago, Illinois, January, 1915.
PREFACE TO FIRST EDITION.
Blackstone's Commentaries deservedly constitute in this
country the first book of the course of legal study usually
prescribed for students of the law. Probably, however,
every student who reads Blackstone is embarrassed by his
own inability to distinguish obsolete or unimportant matter
from the vital and fundamental principles of the law, and
therefore does not know what parts demand the most atten-
tion, in order to fix them in his memory, and what may be
dismissed with a more superficial examination. The object
of this Abridgment is to relieve that embarassment, and
thereby to lighten his labor and economize liis time by
directing his energies to what seems most worthy of atten-
tion. This has been attempted by eliminating obsolete and
unimportant matter, by displaying leading principles in
heavy-faced type, and by printing^the more important parts
of the text in small pica, while matter of minor importance
as a rule has been printed in brevier. Doubtless there will
be some difference of opinion as to what is of more and
what of less importance, and is this respect this work only
expresses the opinion of the Editor, formed, however,
after considerable experience in instructing young men
just beginning the study of law. It frequently happened
throughout the work that obsolete matter was so inter-
woven with matter of present importance that the plan in-
dicated above could not conveniently be pursued. In such
cases tlic obsolete matter has been indicated by the word
" obselete " inclosed within brackets. Matter merely his-
torical has in some instances been considered so important
to a proper understanding of the present state of the law as
to deserve more than a passing notice; such matter has ac-
cordingly been printed in the larger type. The principal
difficulty has been in deciding what to omit. A large
amount of obsolete matter, and matter merely historical,
explanatory, or argumentative, has been omitted, but it is
[vii]
viii PREFACE TO FIRST EDITION.
believed that everything important for the student to know
has been retained. As a rule, the exact language of the
Author has been preserved. Sometimes, however, mere
verbal changes not affecting the sense have been made, in
order to economize space. Great care has been taken to
make no omission or alteration that would change the mean-
ing of the text or render that meaning obscure, and matter
entirely new is in every instance inclosed within brackets,
thus: [ ]. The original paging has been indicated by figures
in brackets placed at the end of the first complete sentence
of each page of the Author appearing in this work. The
notes of the Author and of previous editors have necessarily
been omitted. To have retained them would have defeated
the object of the volume. Occasionally, however, when
thought necessary to explain a change in the law, to eluci-
date an obscure expression, or to direct attention to an
authority throwing light upon the subject, a few words or
a reference to an authority inclosed in brackets have been
thrown into the text; but, for the reason already stated, no
systematic attempt at annotation has been attempted. As
Blackstone's Commentaries are perhaps the most import-
ant institutional work placed in the hands of students at
law, more space has been devoted to them than will be given
to any other work or subject in the series of which this
forms the first volume. It is believed, however, that no
more space has been given to the work of this Author than
it justly deserves. To students pursuing their studies in
an office, which in the majority of cases is equivalent to
studying law alone, and to students in law schools when
upon review or preparing for examination, it is believed
that this Abridgment will prove especially serviceable ; and
it is principally for their use that its preparation has been
undertaken. If it materially assists them in their labors,
its purpose will have been accomplished.
MARSHALL D. EWELL.
Union College of Law of Chicago,
May 29, 1882.
BIBLIOGRAPHICAL NOTE.
In the preparation of the notes and citations of new
authorities to this edition of Blackstone the main object has
been to make the law of the text correct, easily accessible,
and to afford references such that the student so desiring
can pursue the subject farther. In our experience students
do not as a rule read long notes. Where the proposition in
the text is well settled law, nothing is to be gained by ad-
ding a long list of cases; a reference to an approved text
book where the cases are collected is ample. We once heard
an eminent lawyer well known on both sides of the Atlantic,
rebuked by the court for citing cases to sustain a well-set-
tled rule of law, the court remarking that " counsel might
take it for granted that the court knew some law." In
such a case, however, a student needs a start, i. e., a refer-
ence to some good text book where cases are collected.
Very few propositions have been passed by without com-
ment in some part of the book. If- the rule stated in tlio
text has been changed, the modern rule is stated with au-
thorities. If the text has become obsolete it is so stated or
altogether omitted. In some cases we have been obliged to
refer to books not very accessible to the student, e. g.,
Wentworth's Pleadings (10 vols.), 1799, because the topic
could not be found (with precedents) fully treated else-
where. These old precedents in prohibition, scire facias,
mandamus, quo ivarranto, etc., etc., are very instructive.
All foreign phrases have been translated where they re-
spectively occur. Such a glossary as would be useful to
a student would occupy more space than the whole volume
or w r ould be maddening to the student by reason of omis-
sions. The student may need a Norman French dictionary,
which is not readily accessible. Kelham's Norman French
Dictionary will be found reprinted at the end of vol. 2 oi :
Bouvier's Law Dictionary, llth Ed., copyrighted in 1852,
a book easily found.
x BIBLIOGRAPHICAL NOTE.
Next to actually knowing the law, is to know where to
find it. To teach the student elementary principles and
where to direct his attention for details has been continu-
ally in our mind.
At the close of the volume will be found a collection of
old precedents. These are very instructive and give a
flavor of reality to matters valuable by reason only of their
forming links in the chain of history connecting the
modern to the older jurisprudence. Modern precedents can
be found in every law office. When we were listening to
the lectures of the Hon. Thomas M. Cooley in 1866-8, we
remember his advising his listeners to study the 2d and 3d
volumes of Chitty's Precedents, and this is still good advice.
Kemember that the law is unknown to him who knoweth
not the reason thereof," and we might add also the his-
torical growth thereof.
THE EDITOR.
A TABLE OF ENGLISH REGNAL TEARS.
Sovereigns. Beginning of Reign. Length of Reign.
William I October 14, 1066 21 years
William II September 26, 1087 13
Henry I August 5, 1100 36 "
Stephen December 26, 1135 19 "
Henry II December 19, 1154 35 "
Richard I September 3, 1189 10 "
John May 27, 1199 18
Henry III October 28, 1216 57 " '
Edward I November 16, 1272 35 "
Edward II July 8, 1307 20 "
Edward III January 25, 1327 51
Richard II June 22, 1377 23
Henry IV Sept. 30, 1399 14 "
Henry V March 21, 1413 10 "
Henry VI September 1, 1422 39
Edward IV March 4, 1461 22
Edward V April 9, 1483
Richard III June 26, 1483 3 "
Henry VII August 22, 1485 24 "
Henry VIII. April 22, 1509 38
Edward VI January 28, 1547 7
Mary July 6, 1553 6
Elizabeth November 17, 1558 45 "
James I March 24, 1603 23 "
Charles I March 27, 1625 24 "
The Commonwealth January 30, 1649 11 "
Charles II* May 29, 1660 37
James II February 6, 1685 4 "
William and Mary.. February 13, 1689 14 "
Anne March 8, 1702 13 "
George I August 1, 1714 13 "
George II June 11, 1727 34 ''
George III October 25, 1760 60
George IV. January 29, 1820 11 "
William IV June 26, 1830 7 "
Victoria June 20, 1837 63 "
Edward VII January 22, 1901 9 "
George V May 6, 1910 "
* Chas. II did not ascend the throne till May 29, 1660, but his regnal
years are reckoned from the death of Charles I, January 30, 1649, so that
the year of his restoration is styled the 12th year of his reign. ,
[xi]
CONTENTS.
INTRODUCTION.
CHAP. PAGB
I. Omitted.
II. On the Nature of Laws in General I
III. Of the Laws of ' England 11
IV. Of the Countries subject to the Laws of England 22
BOOK THE FIRST.
OF THE BIGHTS OF PERSONS.
CHAP. PAGE
I. Of the Absolute Rights of Individuals 25
II. Of the Parliament 36
III. Of the King and his Title 4!)
IV. Of the King's Royal Family 51
V. Of the Councils belonging to the King 53
VI. Of the King's Duties 54
VII. Of the King's Prerogative 55
VIII. Of the King's Revenue 65
IX. Of Subordinate Magistrates 71
X. Of the People, whether Aliens, Denizens, or Natives 8'1
XL Of the Clergy 8i>
XII. Of the Civil State 90
XIII. Of the Military and Maritime States 94
XIV. Of Master and Servant 95
XV. Of Husband and Wife 103
XVI. Of Parent and Child 112
XVII. Of Guardian and Ward 119
XVIII. Of Corporations 124
BOOK THE SECOND,
OF THE RIGHTS OF THINGS.
CHAP. PAGB
I. Of Property in general 137
II. Of Real Property; and first, of Corporeal Hereditaments.... 145
[xiii]
XIV
CONTENTS.
CHAP. PAGE
III. Of Incorporeal Hereditaments 149
IV. Of the Feodal System 156
V. Of the Ancient English Tenures 162
VI. Of the Modern English Tenures 168
VII. Of Freehold Estates of Inheritance 179
VIII. Of Freeholds not of Inheritance 189
IX. Of Estates less than Freehold 200
X. Of Estates upon Condition 207
XI. Of Estates in Possession, Remainder, and Reversion 214
XII. Of Estates in Severally, Joint-tenancy, Coparcenary, and Com-
mon 224
XIII. Of the Title to Things Real in general 235
XIV. Of Title by Descent 239
XV. Of Title by Purchase; and I. by Escheat 248
XVI. II. Of Title by Occupancy 256
XVII. III. Of Title by Prescription 260
XVIII. IV. Of Title by Forfeiture 263
XIX. V. Of Title by Alienation 274
XX. Of Alienation by Deed 279
XXI. Of Alienation by matter of Record 311
XXII. Of Alienation by Special Custom 321
XXIII. Of Alienation by Devise 325
XXIV. Of Things Personal , 333
'XXV. Of Property in Things Personal 335
XXVI. Of Title to Things Personal by Occupancy 344
XXVII. Of Title by Prerogative and Forfeiture 351
XXVIII. Of Title by Custom 357
XXIX. Of Title by Succession, Marriage, and Judgment 360
XXX. Of Title by Gift, Grant, and Contract ; 368
XXXI. Of Title by Bankruptcy 390
XXXII. Of Title by Testament and Administration 401
BOOK THE THIRD.
OF PRIVATE WRONGS.
CHAP. p AGE
I. Of the Redress of Private Wrongs by the mere Act of the
Parties 423
II. Of Redress by the mere Operation of Law 434
III. Of Courts in General 436
IV. Of the Public Courts of Common Law and Equity 441
V. Of Courts Ecclesiastical, Military, and Maritime 456
VI. Of Courts of a Special Jurisdiction 457
VII. Of the Cognizance of Private Wrongs 458
CONTENTS.
XV
1
CHAP.
PAGE
VIII.
Of Wrongs and their Remedies, respecting the Rights of Per-
sons
469
IX.
Of Injuries to Personal Property
489
X.
Of Injuries to Real Property; and first, of Dispossession, or
Ouster of the Freehold
508
XI.
Of Dispossession or Ouster of Chattels Real
514
XII.
Of Trespass
520
XIII.
Of Nuisance
524
XIV.
Of Waste
527
XV.
Of Subtraction
530
XVI.
Of Disturbance
531
XVII.
Of Injuries proceeding from or affecting the Crown
533
XVIII.
Of the Pursuit of Remedies 'by Action, and first, of the Orig-
inal Writ
540
XIX.
Of Process
544
XX.
Of Pleading
554
XXI.
Of Issue, and Demurrer
571
XXII.
Of the several Species of Trial
575
XXIII.
Of the Trial by Jury
579
XXIV.
Of Judgment and its Incidents
598
XXV.
Of Proceedings in the Nature of Appeals
606
XXVI.
Of Execution
609
XXVII.
Of Proceedings in the Courts of Equity
616
BOOK THE FOURTH.
OF PUBLIC WBONGS.
CHAP.
PAGE
I.
Of the Nature of Crimes and their Punishment
641
II.
Of the Persons capable of committing Crimes
643
III.
Of Principals and Accessaries
650
IV.
Of Offences against God and Religion
655
V.
Of Offences against the Law of Nations
657
VI.
Of High Treason
661
VII.
Of Felonies injurious to the King's Prerogative
667
VIII.
Of 'Praemunire
669
IX.
Of Misprisions and Contempts affecting the King and Govern-
ment '.
670
X.
Of Offences against Public Justice
674
XL
Of Offences against the Public Peace
683
XII.
Of Offences against Public Trade
689
XIII.
Of Offences against the Public Health and the Public Police
or Economy
693
XIV.
Of Homicide
699
XVI
CONTENTS.
CHAP. PAGE
XV. Of Offences against the Persons of Individuals 714
XVI. Of Offences against the Habitations of Individuals 713
XVII. Of Offences against Private Property 724
XVIIL Of the Means of preventing Offences 733
XIX. Of Courts of a Criminal Jurisdiction 737
XX. Of Summary Convictions. . . 741
XXI. Of Arrests '. 745
XXII. Of Commitment and Bail 749
XXIII. Of the Several Modes of Prosecution 753
XXIV. Of Process upon an Indictment 760
XXV. Of Arraignment and its Incidents 762
XXVI. Of Plea and Issue 767
XXVII. Of Trial and Conviction. . . 772
XXVIII. Of the Benefit of Clergy 782
XXIX. Of Judgment and its Consequences 791
XXX. Of Reversal of Judgment 795
XXXI. Of Reprieve and Pardon 797
XXXII. Of Execution 801
Appendix . . 803
BLACKSTONE'S COMMENTARIES,
INTRODUCTION.
SECTION I.
ON THE STUDY OF THE LAW. 1
SECTION II.
ON THE NATURE OF LAWS IN GENERAL,
Law, in its most general and comprehensive sense, signi-
fies a rule of action, and is applied indiscriminately to all
kinds of action, whether animate or inanimate, rational or
irrational. Thus we say the laws of motion, of gravitation,
of optics, or mechanics, as well as the laws of nature and
of nations. And it is that rule of action which is prescribed
Toy some superior, and which the inferior is bound to obey. 2
[38]
1. This section, while very interest- 2. See criticisms of this passage in
ing. is omitted from this edition for the article on Sir William Black-
the reason that the space can be more stone (9th Ed.), Encyclopaedia Brit-
profitably occupied by other matter, tanica. See, also, the learned notes
" Suggestions Concerning the Study of the late William G. Hammond, pp.
of the Law," written by the late 95-117, vol. 1, Introduction to Black-
Honorable Thomas M. Cooley in 1870 stone's Commentaries; Holland on
and occupying 28 pages at the begin- Jurisprudence, 60; Maine's Early
ning of his edition of Blackstone's Hist, of Inst., 372; Maine's Anct.
Commentaries, may here be read with Law, ch. 5, p. 110; Wilson's Lect. on
profit by the student. Law, vol. 1, pp. 65, 85, 89, 91.
2 THE NATURE OF LAWS.
But laws, in their more confined sense, denote the rules,
not of action in general, but of human action or conduct;
that is, the precepts by which man, a creature endowed with
both reason and freewill, is commanded to make use of
those faculties in the general regulation of his behavior.
[39]
As man depends absolutely upon his Maker for every-
thing, it is necessary that he should, in all points, conform
to his Maker's will. This will of his Maker is called the
law of nature. These [laws laid down by God] are the
eternal immutable laws of good and evil, to which the
Creator himself, in all his dispensations, conforms; and
which he has enabled human reason to discover, so far as
they are necessary for the conduct of human actions. [40]
Such, among others, are these principles: that we should
live honestly [honorably], should hurt nobody, and should
render to every one his due; to which three general precepts
Justinian has reduced the whole doctrine of law. In con-
sequence of the mutual connection of justice and human
felicity, the Creator has not perplexed the law of nature
with a multitude of abstracted rules and precepts, referring
merely to the fitness or unfitness of things, but has graci-
ously reduced the rule of obedience to this one paternal
precept, " that man should pursue his own true and sub-
stantial happiness." [41] This is the foundation of what
we call ethics, or natural law.
This law of nature, being coeval with mankind, and dic-
tated by God himself, is of course superior in obligation to
any other. It is binding over all the globe, in all countries,
and at all times: no human laws are of any validity 3 [i. e.
The doctrine that law is necessarily garded as the divine law. Courts will
the command of a superior is con- not, however, adopt such a construc-
demned by early American jurists. tion unless compelled to do so by the
See Hammond's Introduction to clear words of the statute. See gen-
Blackstone, p. 112. erally Austin on Jurisprudence (Eng.
3. So long as the legislature has Ed.), p. 220 note; Holland's Jur., 34;
constitutional authority to enact a Calder v. Bull, 3 Dall. 386; Fletcher
law, it is binding upon the courts, v. Peck, 6 Cranch, 87.
even though it violates what is re-
SECT. 2.] THE NATURE OF LAWS. 3
in the forum of conscience], if contrary to this; and such
of them as are valid derive all their force, and all their au-
thority, mediately or immediately, from this original.
But, in order to apply this to the particular exigencies of
each individual, it is still necessary to have recourse to
reason, whose office it is to discover what the law of nature
directs in every circumstance of life, by considering what
method will tend the most effectually to our own substantial
happiness. And if our reason were always clear and per-
fect, the task would be pleasant and easy; we should need
no other guide but this. But every man now finds the con-
trary in his own experience ; that his reason is corrupt, and
his understanding full of ignorance and error.
This has given manifold occasion for the benign interpo-
sition of divine Providence, which hath been pleased, at
sundry times and in divers manners, to discover and enforce
its laws by an immediate and direct revelation. [42] The
doctrines thus delivered we call the revealed or divine law,
and they are to be found only in the holy scriptures.
Upon these two foundations, the law of nature and the
law of revelation, depend all human laws; that is to say,
no human laws should be suffered to contradict these.
There are, it is true, a great number of indifferent points
in which both the divine law and the natural leave a man
at his own liberty, but which are found necessary, for the
benefit of society, to be, restrained within certain limits.
And herein it is that human laws have their greatest force
and efficacy; for, with regard to such points as are not in-
different, human laws are only declaratory of, and act in
subordination to, the former.
As it is impossible for the whole race of mankind to be
united in one great society, they must necessarily divide
into many, and form separate states, commonwealths, and
nations, entirely independent of each other, and yet liable
to a mutual intercourse. [43] Hence arises a third kind
of law to regulate this mutual intercourse, called * * the law
of nations, ' ' which, as none of these states will acknowledge
a superiority in the other, cannot be dictated by any, but
depends entirely upon the rules of natural law, or upon
4 THE NATURE OF LAWS. [INTRO.
mutual compacts, treaties, leagues, and agreements between
these several communities : in the construction also of which
compacts we have no other rule to resort to, but the law of
nature; being the only one to which all the communities
are equally subject.
Municipal law is properly defined to be "a rule of civil
conduct prescribed by the supereme power in a state, com-
manding what is right and prohibiting what is wrong/' 4
[44] [This definition will be improved by omitting the
words, " commanding what is right," &c.]
And, first, it is a rule: not a transient, sudden order from
a superior to or concerning a particular person; but some-
thing permanent, uniform, and universal. It is also called
a rule, to distinguish it from advice or counsel, which we
are at liberty to follow or not, as we see proper, and to judge
upon the reasonableness or unreasonableness of the thing
advised: whereas our obedience to the law depends not upon
our approbation, but upon the makers will. It is called a
rule, to distinguish it from a compact or agreement? for a
compact is a promise proceeding from us, law is a command
directed to us. [45]
Municipal law is also " a rule of civil conduct." This
distinguishes municipal law from the natural, or revealed;
the former of which is the rule of moral conduct, and the
latter not only the rule of moral conduct, but also the rule
of faith.
It is likewise * ' a rule prescribed. ' ' Besides a bare reso-
lution, confined in the breast of the legislator, without mani-
festing itself by some external sign, can never be properly
a law. It is requisite that this resolution be notified to the
people who are to obey it. But the manner in which this
4. See note on preceding page. lative authority, its moral quality is
Many acts of the legislature are in immaterial.
themselves clearly right, some are 5. In American jurisprudence a
as clearly wrong in the forum of con- statute may constitute a contract,
science, and many are in themselves See the leading case of Dartmouth
indifferent in their moral quality. College v. Woodward, 4 Wheat. 518.
So long as the act is within the legia- Many corporate charters are legisla-
tive contracts.
SECT. 2.] THE NATURE OF LAWS. 5
notification is to be made, is matter of very great indiffer-
ence. It may be notified by universal tradition and long
practice, which supposes a previous publication, and is the
case of the common law of England. It may be notified,
viva voce, by officers appointed for that purpose, as is done
with regard to proclamations, and such acts of parliament
as are appointed to be publicly read in churches and other
assemblies. [46] It may lastly be notified by writing,
printing, or the like ; which is the general course taken with
all our acts of parliament. 6 Yet, whatever way is made
use of, it is incumbent on the promulgators to do it in the
most public and perspicuous manner; not like Caligula,
who wrote his laws in a very small character and hung
them upon high pillars, the more effectually to ensnare the
people. There is still a more unreasonable method than
this, which is called making of laws ex post facto [after
the deed] ; when after an action (indifferent in itself) is
committed, the legislator then for the first time declares
it to have been a crime, and inflicts a punishment upon the
person who has committed it. 7 All laws should be there-
6. No notification is necessary un- prospectively and not retrospectively,
less required by constitution or stat- unless such is clearly the intention
ute. The case of Mary and Susan, of the legislature; and in some states
1 Wheat. 58; The Ann, 1 Gall. 62. there are constitutional provisions
7. " The old rule was that statutes, prohibiting retrospective legislation,
unless otherwise ordered, took effect As to the limitations upon the power
from the first day of the session in of the legislature to enact retrospec-
which they were passed." Cooley's tive laws, see generally Cooley's
Const. Lim., 155-156. " The pres- Const. Lira., 369 et seq.
ent rule is that an act takes effect Art. I, sec. 9, cl. 3, U. S. Const.,
from the time when the formalities of prohibits Congress from passing any
enactment are actually complete un- bill of attainder or ex post facto law;
der the constitution, unless it is other- and section 10 of the same article pro-
wise ordered or unless there is some hibits any state from enacting such
constitutional or statutory rule on the laws. In Calder v. Bull, 3 Dall. 386
subject which prescribes otherwise." ex post facto laws were construed to
Td., 156. In some of the states the include: (1) Every law which makes
constitutions fix the times when the criminal an act innocent when per-
acts shall go into effect. Id., 156- formed and punishes such action; (2)
15E. or which makes its degree of crimin-
Every statute shall be construed ality greater than it was when com-
6 THE NATURE OF LAWS. [!NTUO.
fore made to commence in futuro [in the future], and be
notified before their commencement; which is implied in
the term ' prescribed." But when this rule is in the usual
manner notified, or prescribed, it is then the subject's busi-
ness to be thoroughly acquainted therewith; for if ignor-
ance, of what he might know, were admitted as a legitimate
excuse, the law would be of no effect, but might always be
eluded with impunity. 8
But farther: municipal law is " a rule of civil conduct
prescribed by the supreme power in a state." For legis-
lature, as was before observed, is the greatest act of su-
periority that can be exercised by one being over another.
Wherefore it is requisite to the very essence of a law that
it be made by the supreme power. Sovereignty and legisla-
ture are indeed convertible terms; one cannot subsist with-
out the other.
The only true and natural foundations of society are the wants and
the fears of individuals. [47] Single families formed the first natural
society, among themselves; which, every day extending its limits, laid
the first though imperfect rudiments of civil or political society: and
when it grew too large to subsist with convenience in that pastoral state,
wherein the patriarchs appear to have lived, it necessarily subdivided
itself by various migrations into more. Afterwards, as agriculture in-
creased, which employs and can maintain a much greater number of
hands, migrations became less frequent: and various tribes, which had
formerly separated, reunited again; sometimes by compulsion and con-
quest, sometimes by accident, and sometimes perhaps by compact. But
though society had not its formal beginning from any convention of in-
dividuals actuated by their wants and their fears, yet it is the sense of
their weakness and imperfection that keeps mankind together, that
demonstrates the necessity of this union, and that therefore is the solid
and natural foundation, as well as the cement of civil society. And this
is what we mean by the original contract of society, which, though per-
haps in no instance it has ever been formally expressed at the first in-
stitution of a state, yet in nature and reason must always be understood
and implied in the very act of associating together: namely, that the
mitted; (3) or which changes the dence so as to warrant a conviction
punishment and inflicts a greater pun- on less or different testimony than
ishment than could have been legally was required by the laws at the time
imposed when the act was committed; the crime was committed,
or (4) which changes the rules of evi- 8. This is universally the law.
SECT. 2.] THE NATURE OF LAWS. 7
whole should protect all its parts, and that every part should pay obedi-
ence to the will of the whole, or, in other words, that the community
should guard the rights of each individual member, and that <in return
for this protection) each individual should submit to the laws of the com-
munity; without which submission of all it was impossible that protec-
tion should be certainly extended to any. [48] For when civil society
is once formed, government at the same time results of course, as neces-
sary to preserve and to keep that society in order.
The political writers of antiquity will not allow more
than three regular forms of government: the first, when
the sovereign power is lodged in an aggregate assembly
consisting of all the free members of a community, which
is called a democracy; the second, when it is lodged in a
council, composed of select members, and then it is styled
.an aristocracy; the last, when it is entrusted in the hands
of a single person, and then it takes the name of a monarchy.
[49] All other species of government, they^say, are either
corruptions of, or reducible to, these three.
In a democracy, where the right of making laws resides in the people
at large, public virtue, or goodness of intention, is more likely to be
found than either of the other qualities [wisdom and power] of govern-
ment. Popular assemblies are frequently foolish in their contrivance
and weak in their execution, but generally mean to do the thing that is
right and just, and have always a degree of patriotism or public spirit.
In aristocracies there is- more wisdom to be found than in the other
frames of government; being composed, or intended to be composed,
of the most experienced citizens; but there is less honesty than in a
republic, and less strength than in a monarchy. [50] A monarchy is in-
deed the most powerful of any, for, by the entire conjunction of the leg-
islative and executive powers, all the sinews of government are knitted
together and united in the hand of the prince; but then there is imminent
danger of his employing that strength to improvident or oppressive pur-
poses. Democracies are usually the best calculated to direct the end of
a law; aristocracies to invent the means by which that end shall be
obtained; and monarchies to carry those means into execution. And the
ancients had. in general no idea of any other permanent form of govern-
ment but these three; for though Cicero declares himself of opinion,
" esse optime constitutam rempublicam quae ex tribus generibus illis, regali,
optimo, et populari, sit modice confusa," 9 yet Tacitus treats this notion of a
9. The best constituted republic is these three estates: the monarchial,
t!:at which is duly compounded of aristocratical and democratical.
8 THE NATURE OF LAWS. [INTRO.
mixed government, formed out of them all, and partaking of the ad-
vantages of each, as a visionary whim, and one thc.t, if effected, could
never be laeting or secure.
But the British constitution * has long remained a standing exception
to the truth of this observation. For as with us the executive power of
the laws is lodged in a single person, they have all the advantages of
strength and despatch that are to be found in the most absolute mon-
archy, and as the legislature of the kingdom is entrusted to three dis-
tinct powers, entirely independent of each other: first, the king; sec-
ondly, the lords spiritual and temporal, which is an aristocratical as-
sembly of persons selected for their piety, their- birth, their wisdom,
their valor, or their property; and, thirdly, the House of Commons,
freely chosen by the people from among themselves, which makes it a kind
of democracy, as this aggregate body, actuated by different springs and
attentive to different interests, composes the British parliament and has
the supreme disposal of everything, there can no inconvenience be at-
tempted by either of the three branches but will be withstood by one of
the other two, each branch being armed with a negative power sufficient
to repel any innovation which it shall think inexpedient or danger-
ous. [51] If ever, it should happen that the independence of any one of
the three should be lost, or that it should become subservient to the
views of either of the other two, there would soon be an end of our con-
stitution. [52] [The House of Commons is now in the ascendency, and
still the constitution survives.]
As the power of making Laws constitutes the supreme authority, so
wherever the supreme authority in any state resides, it is the right of
that authority to make laws; that is, in the words of our definition, to
prescribe the rule of civil action. Farther, it is its duty likewise.
I proceed now to the latter branch of the definition: that it is a rule
so prescribed, "commanding what is right, and prohibiting what i
wrong." 2 [53]
Now in order to do this completely, it is first of all necessary that the
boundaries of right and wrong be established and ascertained by law.
And when this is once done, it will follow of course that it is likewise
the business of the law, considered as a rule of civil conduct, to enforce
these rights and to restrain or redress these wrongs. It remains there-
fore only to consider in what manner the law is said to ascertain the
boundaries of right and wrong, and the methods which it takes to com-
mand the one and prohibit the other.
1. In England Parliament is not re- tations imposed upon legislation
strained by any written constitution by written constitutions, the nature
and is hence omnipotent. The term of which will be explained in another
" constitution " will be further ex- place.
plained later on. In the United States 2. See comments on this subject in
and the several states there are limi- notes ante.
SECT. 2.] THE NATURE OF LAWS. 9
For this purpose every law may be said to consist of several parts:
one declaratory, whereby the rights to be observed and the wrongs to be
eschewed are clearly defined and laid down; another directory, whereby
the subject is instructed and enjoined to observe those rights and to
abstain from the commission of those wrongs; a third remedial, whereby
a method is pointed out to recover a man's private rights or redress his
private wrongs: to which may be added a fourth, usually termed the
sanction, or vindicatory branch of the law; whereby it is signified what
evil or penalty shall be incurred by such as commit any public wrongs
and transgress or neglect their duty. [54]
With regard to the first of these, the declaratory part of the municipal
law, this depends not so iruch upon the law of revelation or of nature,
as upon the wisdom and will of the legislator. The declaratory part of
the municipal law has no force or operation at all with regard to ac-
tions that are naturally and intrinsically right or wrong. But with re-
gard to things in themselves indifferent, the case is entirely altered. [55]
These become either right or wrong, just or unjust, duties or misde-
meanors, according as the municipal legislator sees proper for promot-
ing the welfare of the society and more effectually carrying on the pur-
poses of civil life. And sometimes, where the thing itself has its rise
from the law of nature, the particular circumstances and mode of doing
it become right or wrong as the laws of the land shall direct.
The directory stands much upon the same footing [as the declaratory] ;
for this virtually includes the former, the declaration being usually col-
lected from the direction. The law that says, " Thou shalt not steal,"
implies a declaration that stealing is a crime. And we have seen that,
in things naturally indifferent, the very essence of right and wrong de-
pends upon the direction of the laws to do or to omit them.
The remedial part of a law is so necessary a consequence of the former
two, that laws must be very vague and imperfect without it. [56] For in
vain would rights be declared, in vain directed to be observed, if there
were no method of recovering and asserting those rights when wrong-
fully withheld or invaded. This is what we mean properly when we
speak of the protection of the law.
With regard to the sanction of laws, or the evil that may attend the
breach of public duties, it is observed that human legislators have for the
most part chosen to make the sanction of their laws rather vindicatory
than remuncratory, or to consist rather in punishments than in actual
particular rewards. Of all the parts of a law the most effectual is the
vindicatory. [57] The main strength and force of a law consists in the
penalty annexed to it. Herein is to be found the principal obligation of
human laws.
Interpretation of Laws. The fairest and most rational
method to interpret the will of the legislator is by exploring
10 THE MATURE OF LAWS. [!NTRO.
his intentions 3 at the time when the law was made, by signs
the most natural and probable. [59] And these signs are
either the words, the context, the subject-matter, the effects
and consequence, or the spirit and reason of the law.
1. Words are generally to be understood in their usual
and most known signification, not so much regarding the
propriety of grammar as their general and popular use.
Terms of art or technical terms must be taken according
to the acceptation of the learned in each art, trade, and
science.
2. If words happen to be still dubious, we may establish
their meaning from the context, 4 with which it may be of
singular use to compare a word or a sentence whenever they
are ambiguous, equivocal, or intricate. [60] Thus the
proeme, or preamble, is often called in to help the construc-
tion of an act of parliament. Of the same nature and use
is the comparison of a law with other laws that are made
by the same legislator, that have some affinity with the
subject, or that expressly relate to the same point.
3. As to the subject-matter, words are always to be under-
stood as having a regard thereto, for that is always sup-
posed to be in the eye of the legislator, and all his expres-
sions directed to that end. 5
4. As to the effects and consequence, the rule is, that
where words bear either none, or a very absurd significa-
3. The real intention as expressed the act, it may avoid the whole act.
in the words of the act is the cardinal In the case of deeds the first deed or
force in the interpretation of a stat- the first clause shall prevail in case
ute. It also has a controlling effect of such conflict, while in the case of
in contracts, wills, etc. Reference a will, the last will prevails.
will be made to the subject farther It is to be remarked that the terms
on under other topics. " interpretation " and " construction ;>
4. Every written instrument, are not synonymous. " Interpreta-
whether it be a statute, contract, tion " refers to the meaning as de-
will, etc., shall be so interpreted that rived from the words of the instru-
the whole may stand if possible, ment. " Construction " includes not
rather than that any part should fail. only this but its application to the
Where there is an irreconcilable con- facts of some case. See generally
flict of one part of a statute with a Dwarris on Statutes,
constitutional provision, if the part 5. See -the next preceding note.
eo in conflict is an essential part of
SECT. 3.] OF THE LAWS OF ENGLAND. 11
tion, if literally understood, we must a little deviate from
the received sense of them. 6
5. But, lastly, the most universal and effectual way of
discovering the true meaning of a law, when the words are
dubious, is by considering the reason and spirit of it, or the
cause which moved the legislator to enact it. [61] For
when this reason ceases, the law itself ought likewise to
cease with it. 7
From this method of interpreting laws, by the reason of
them, arises what we call equity [by which is not meant
equity or chancery jurisprudence], which is thus defined
by Grotius: " The correction of that wherein the law (by
reason of its universality) is deficient." For since in laws
all cases cannot be forseen or expressed, it is necessary that,
when the general decrees of the law come to be applied to
particular cases, there should be somewhere a power vested
of defining those circumstances, which (had they been fore-
seen) the legislator himself would have expressed. And
these are the cases which, according to Grotius, " lex non
cxacte definite sed arbitrio boni viri permittit."*
SECTION III.
OF THE LAWS OF ENGLAND.
The municipal law of England may be divided into two
kinds: the lex non scripta, the unwritten, or common law;
and the lex scripta, the written, or statute law. [63]
6. That is, so as to give them a a good judge." A court has, however,
rational rather than an absurd mean- no power to disregard the clear provi-
ing. sions of a statute; although greet
7. But in the case of a statute un- hardship in enforcing it may afford
fortunately it does not become in- an argument that such was not the
valid until repealed by a subsequent intention of the act. In a criminal
statute. Customary or common law statute such hardship or injustice
will be referred to later. may lay the ground for executive
8. " The law does not exactly de- clemency,
fine, but leaves to the discretion of
12 OF THE LAWS OF ENGLAND. [INTRO.
The lex non scripta, or unwritten law, includes not only
general customs, or the common law properly so called, but
also the particular customs of certain parts of the kingdom ;
and likewise those particular laws that are by custom ob-
'served only in certain courts and jurisdictions.
The monuments and evidences of our legal customs are
contained in the records of the several courts of justice, in
books of reports and judicial decisions, and in the treatises
of learned sages of the profession, preserved and handed
down to us from the times of highest antiquity. 9 [64] How-
ever, I therefore style these parts of our law leges non
scriptae, because their original institution and authority
are not set down in writing, as acts of parliament are, but
they receive their binding power and the force of laws by
long and immemorial usage, and by their universal recep-
tion throughout the kingdom.
This unwritten or common law is properly distinguish-
able into three kinds: 1. General customs, which are the
universal rule of the whole kingdom, and form the common
law in its stricter and more usual signification. [67] 2.
Particular customs, which for the most part affect only the
inhabitants of particular districts. 3. Certain particular
laws, which by custom are adopted and used by some par-
ticular courts, of pretty general and extensive jurisdiction.
I. As to general customs, or the common law properly
so called, this is that law by w^hich proceedings and deter-
minations in the king's ordinary courts of justice are
guided and directed. [68] This for the most part settles
the course in which lands descend by inheritance; the man-
ner and form of acquiring and transferring property; the
solemnities and obligation of contracts; the rules of ex-
pounding wills, deeds, and acts of parliament; the respec-
tive remedies of civil injuries; the several species of tem-
poral offenses, with the manner and degree of punishment;
and an infinite number of minuter particulars, which diffuse
9. The law as administered in this judged cases and abridgments and di-
country is contained principally in gests thereof, and in text-books
books of statutes, public and private, founded upon the statutes and re-
and digests thereof, in reports of ad- ported cases.
SECT. 3.] OF THE LAWS OF ENGLAND. 13
themselves as extensively as the ordinary distribution of
common justice requires. 1
These customs or maxims are to be known, and their
validity determined, by the judges in the several courts of
justice. 2 [69] They are the depositaries of the laws, the
living oracles who must decide in all cases of doubt, and
who are bound by an oath to decide according to the law
of the land.
Judicial decisions are the principal and most authorative
evidence that can be given of the existence of such a custom
as shall form a part of the common law. The judgment
itself and all the proceedings previous thereto are carefully
registered and preserved, under the name of records, in
public repositories set apart for that particular purpose;
and to them frequent recourse is had when any critical
question arises, in the determination of which former pre-
cedents may give light or assistance. 3 It is an established
rule to abide by former precedents where the same points
come again in litigation.
This rule admits of exception where the former determi-
nation is most evidently contrary to reason; much more if
it be clearly contrary to the divine law. [70] But even in
such cases the subsequent judges do not pretend to make a
new law, but tcT vindicate the old one from misrepresenta-
tion. For if it be found that the former decision is mani-
festly absurd or unjust, it is declared, not that such a sen-
tence was bad law,, but that it was not law; that is, that it
is not the established custom of the realm, as has been
erroneously determined. The doctrine of the law then is
this: that precedents and rules must be followed, unless
1. The English and American com- state of Louisiana. The United
mon law, which includes the law mer- States, as distinguished from the sev-
chant, forms the greater part of the eral states, has no system of common
jurisprudence of most of the several law either civil or criminal,
states. See the remarks of Caton, 2. The court responds to questions
C. J., in Cook v. Renick, 19 111. 602; of law, the jury to questions of fact,
also, Am. Bar Assn. Rep. 1889, p. 3. These judicial decisions in prac-
233; 1 Kent's Com, pt. 3, p. 471. tice are to be found in the printed
The Roman Civil Law forms the books of reports of the various courts.
basis of the jurisp udence of the
14 OF THE LAWS OF ENGLAND. [!NTRO.
flatly absurd or unjust; for though their reason be not
obvious at first view, yet we owe such a deference to former
times as not to suppose that they acted wholly without
consideration. 4
Reports are histories of the several cases, with a short
summary of the proceedings, which are preserved at large
in the record, the arguments on both sides, and the reasons
the court gave for its judgment, taken down in short notes
by persons present at the determination. [71] And these
serve as indexes to, and also to explain, the records, which
always, in matters of consequence and nicety, the judges
direct to- be searched. The reports are extant in a regular
series from the reign of King Edward the Second inclusive,
and from his time to that of Henry the Eighth were taken
by the prothonotaries, or chief scribes of the court, at the
expense of the crown, and published annually, whence they
are known under the denomination of the year books. [72]
From the reign of Henry the Eighth to the present time
this task has been executed by many private and contem-
porary hands, who sometimes through haste and inaccu-
racy, sometimes through mistake and want of skill, hav,e
published very crude and imperfect (perhaps contradic-
tory) accounts of one and the same determination. 5
4. The doctrine stare decisis, that usually contains: (1) The 'style of
is stand upon or follow the decided the case, i. e., the names of the par-
oases, is firmly established in the law; ties plaintiff and defendant. (2) The
indeed it may be said to be the foun- headnotes or syllabus stating what
dation of our system of jurispru- the case decides and sometimes dicta,
dence. A rule once firmly established indicated by the words " semble " or
by the decided cases should be fol- " it seems." (3) The court from which
lowed until changed by statute. This the case is appealed and the manner
rule has been violated in some in- of bringing it up for review, as by
stances, but such violations seem to appeal or writ of error. (4) A state-
us to be usurpations of the legislative ment of the facts of the case where
function. Dicta, however, that is they are not sufficiently stated in .the
statements not necessary to the de- opinion of the court. (5) Names of
cision of the case, are not binding counsel and often a summary of their
upon the courts in subsequent cases, arguments with cases cited by them.
5. In this country reports are now (6) The opinion of the court, either
usually prepared and published by of- unanimous, or, if not so, by the ma-
ficial reporters. A report of a case jority concurring and the judgment
SECT. 3.] OF THE LAWS OF ENGLAND. 15
Besides these reporters, there are also other authors, to
whom great veneration and respect is paid by the students
of the common law. Such are Glanvil and Bracton, Britton
and Fleta, Hengham and Littleton, Statham, Brooke, Fitz-
herbert, Staundforde, and Coke, with some others of ancient
date, whose treatises are cited as authority, and are evi-
dence that cases have formerly happened, in which such
and such points were determined, which are now become
settled and first principles. 6
II. The second branch of the unwritten laws of England
are particular customs, or laws, which affect only the in-
habitants of particular districts. [74] 7
These particular customs, or some of them, are without doubt the re-
mains of that multitude of local customs out of which the common law,
as it now stands, was collected at first by King Afred, and afterwards by
King Edgar and Edward the Confessor, each district mutually sacrific-
ing some of its own special usages in order that the whole kingdom might
njoy the benefit of one uniform and universal system of laws. But
for. reasons that have been now long forgotten, particular counties, cities,
towns, manors, and lordships were very early indulged with the privilege
of abiding by their own customs, in contradistinction to the rest of the
nation at large; which privilege is confirmed to them by several acts of
parliament. Such are the customs of gavelkind in Kent, and some other
parts of the kingdom; of Borough-English, that a widow shall be en-
titled for her dower to all her husband's lands, &c. [75]
To this head may most properly be referred a particular system of
customs used only among one set of the King's subjects, or lex mercatoria-
[the law merchant] ; which, however, different from the general rules of
the common law, is yet ingrafted into it and made a part of it. 7a
The rules relating to particular customs regard either the proof of
their existence, their legality when proved, or their usual method of
allowance.
thereon. (7) If the decision is by the reasons and arguments they con-
a divided court, one or more dissent- tain and for the cases they cite.
ing opinions. The student will' find 7. We have nothing of the sort in
Wallace on the Reporters a work of this country. See, however, usages
great value. and customs as incorporated into con-
6. Blackstone's Commentaries are tracts, considered later under the head
now also often cited as an authority evidence, contracts,
on the common law; but modern trea- 7a. The law merchant is a part of
tises on the law, while often cited, the common law. See Cook v. Renick,
are not authorities or binding upon 19 111. 602, per Caton, C. J.
16 OF THE LAWS OF ENGLAND. [INTRO.
First. All private customs (except gavelkind and borough-English, of
which the law takes particular notice) must be particularly pleaded, and
as well the existence of such customs, must be shown, as that the thing
in dispute is within the custom alleged. [76]
Second. When a custom is actually proved to exist, the next inquiry is
into the legality of it. To make a particular custom good, the following
are necessary requisites:
1. That it have been used so long that the memory of man runneth not
to the contrary.
2. It must hare been continued. [77] Any interruption would cause a
temporary ceasing; the revival gives it a new beginning, which will be
within time of memory, and thereupon the custom will be void. But this
must be understood with regard to an interruption of the right, for an
interruption of the possession only for ten or twenty years will not
destroy the custom. But if the right be any how discontinued for a day,
the custom is quite at an end.
3. It must have been peaceable and acquiesced in, not subject to con-
tention and dispute.
4. Customs must be reasonable; or, rather, taken negatively, they must
not be unreasonable.
5. Customs ought to be certain, and the maxim of law is, id cerium est
quod cerium reddi potest.% [78]
6. Customs, though established by consent, must be (when established)
compulsory, and not left to the option of every man whether he will use
them or no.
7. Lastly, customs must be consistent with each other. One custom
cannot be set up in opposition to another. For if both are really customs,
then both are of equal antiquity and both established by mutual consent,
which to say of contradictory customs is absurd.
Third. As to the allowance of special customs.
Customs in derogation of the common law must be construed strictly.
III. The third branch of the leges non scriptae are those
peculiar laws which by custom are adopted and used only
in certain peculiar courts and jurisdictions. And by these
I understand the civil and canon laws. [79] 9
8. That is certain which can be law, e. g., in the law of bailments,
made certain. Also portions of these jurisdictions
9. Not a part of the American law applicable to our condition have in
except that the Roman civil law forms this country been vested in various
the basis of the jurisprudence of courts, e. g., admiralty jurisdiction
Louisiana. Many rules have, how- in the federal courts, etc. See post,
ever, been- adopted into the English Courts.
common law f.om the Roman civil
SECT. 3.] OF THE LAWS OF ENGLAND. 17
It may seem a little improper at first view to rank these laws under
the head of leges non scriptae, or unwritten laws. But I do this, after the
example of Sir Matthew Hale, because it is most plain that it is not on
account of their being written laws that either the canon law or the civil
law have any obligation within this kingdom, neither do their force and
efficacy depend upon their own intrinsic authority, which is the case
of our written laws or acts of parliament. But all the strength that either
the papal or imperial laws have obtained in this realm, or indeed in any
other kingdom in Europe, is only because they have been admitted and
received by immemorial usage and custom in some particular cases and
some particular courts; and then they form a branch of the leges won
scriptae, or customary laws, or else because they are in some other cases
introduced by consent of parliament, and then they owe their validity
to the leges scriptae, or statute law. [80]
The present body of civil law was compiled and finished by Tribonian
and other lawyers about the year 533. [81]
This consists of: 1. The institutes, which contain the elements or first
principles of the Roman law in four books; 2. The digests or pandects
in fifty books, containing the opinions and writings of eminent lawyers
digested in a systematical method; 3. A new code, or collection or im-
perial constitutions in twelve books, the lapse of a whole century hav-
ing rendered the former code of Theodosius imperfect; 4. The novels,
or new constitutions, posterior in time to the other books, and amount-
ing to a supplement to the code, containing new decrees of successive
emperors as new questions happened to arise. These form the body of
Roman law, or corpus juris citilis, as published about the time of Justinian.
The canon law is a body of Roman ecclesiastical law relative to snch
matters as that church either has or pretends to hare the proper jurisdic-
tion over. [82] This is compiled from the opinions of the ancient Latin
fathers, the decrees of general councils, and the decretal epistles and
birlls of the holy see. Besides the pontifical collections, which during
the times of popery were received as authentic in this island, as well
as in other parts of Christendom, there is also a kind of natural canon
law, composed of Icgatine and provincial constitutions, and adapted only
to the exigencies of this church and kingdom. [83] At the dawn of the
reformation in the reign of King Henry VIII, it was enacted in parlia-
ment that a review should be had of the canon law; and, till such re-
view should be made, all canons, constitutions ordinances, and synodals
provincial being then already made and not repugnant to the law of the
land or the king's prerogative, should still be used and executed. And,
as no such review has yet been perfected, upon this statute now depends
the authority of the canon law in England.
There are four species of courts in which the civil and canon laws are
permitted, under different restrictions, to be used: 1. The courts of
the archbishops and bishops and their derivative officers, usually called
2
18 OF THE LAWS OF ENGLAND. [INTRO.
in our law courts Christian (curiae Christianitatis)', or the ecclesiastical
courts. 2. The military courts. 3. Tbe courts of admiralty. 4. The
courts of the two universities. In all, their reception in general and the
different degrees of that reception are grounded entirely upon custom,
corroborated in the latter instance by act of parliament ratifying those
charters which confirm the customary law of the universities. [84]
1. The courts of common law have the superintendence' over these
courts: to keep them within their jurisdiction, to determine wherein they
exceed them, to restrain and prohibit such excess, and, in case of con-
tumacy, to punish the officer who executes, and in some cases the judge
who enforces, the sentence so declared to be illegal.
2. The common law has reserved to itself the exposition of all such
acts of parliament as concern either the extent of these courts or the
matters depending before them. And, therefore, if these courts either
refuse to allow these acts of parliament or will expound them in any
other sense than what the common law puts upon them, the king's courts
at Westminster will grant prohibitions to restrain and control them.
3. An appeal lies from all these courts to the king in the last resort.
The leges scriptae the written laws of the kingdom
are statutes, acts, or edicts made by the king's majesty,
by and with the advice and consent of the lords spiritual
and temporal and commons in parliament assembled. [85]
The oldest of these now extant and printed in our statute
books is the famous Magna Charta* as confirmed in parlia-
ment 9 Hen. III.
First, Statutes are either general' or special, public or
private. 1
1. The method of citing these acts the Pentateuch; by the Christian
of parliament is various. Many of church in distinguishing their hymns
our ancient statutes are called after and divine offices; by the Romanists
the name of the place where the par- in describing their papal bulles; and,
liament was held that made them; in short, by the whole body of an-
as the statutes of Merton and Marie- cient civilians and canonists, among
berge, of Westminster, Gloucester and whom this method of citation gener-
Winchester. Others are denominated ally prevailed, not only with regard
entirely from their subject, as the to chapters, but inferior sections also;
statutes of Wales and Ireland, the in imitation of all which we still call
articuli cleri, and the praeogatit-a some of our old statutes by their in-
regis. Some are distinguished by itial words, as the statute of quid
their initial words, a method of cit- emptores, and that of circumspecte
ing very ancient, being used by the agatis. But the most usual method
Jews in denominating the books of of citing them, especially since the
SECT. 3.]
OF THE LAWS OF ENGLAND.
19
A general or public act is an universal rule that regards
the whole community, and of this the courts of law are
bound to take notice judicially and ex officio without the
statute being particularly pleaded or formally set forth by
the party who claims an advantage under it. [86] Special
or private acts are rather exceptions than rules, being those
which only operate upon particular persons and private
concerns, and of these (which are not promulgated with
the same notoriety as the former) the judges are not bound
to take notice, unless they be formally shown and pleaded. 2
Statutes also are either declaratory of the common law
or remedial of some defects therein.
Declaratory, where the old custom of the kingdom is
almost fallen into disuse or become disputable, in which
case the parliament has thought proper, in perpetuum rei
testimonmm? and for avoiding all doubts and difficulties,
to declare what the common law is and ever hath been. 4
time of Edward the Second, is by
naming the year of the king's reign
in which the statute was made, to-
gether with the chapter, or particular
act, according to its numeral order,
as 9 Go. II., c. 4, for all the acts of
one session of parliament taken to-
gether make properly but one stat-
ute; and therefore, when two sessions
have been held in one year, we usu-
ally mention stat. 1 or 2. Thus the
bill of rights is cited as 1 W. and M.
st. 2, c. 2, signifying that is the sec-
ond chapter or act of the second stat-
ute, or the laws made in the second
session of parliament, in the first
year of king William and Queen
Mary. See generally Wallace's Re-
porters; Dwarris on Statutes. Ab-
breviations used in Law Books by
Chas. C. Soule (153 pages), will be
found very useful to the student.
2. Books of statutes in the United
States are of various sorts: Revi-
sions or Compilations; Public Acts;
Private Acts and Digests of Statutes.
Private acts are prohibited in some
states by constitutional enactment.
See generally as to Public and Pri-
vate Statutes, Cooley's Const. Lim.,
97 et seq.; 390 and cases cited.
3. For a perpetual testimony of the
thing.
4. " It is always competent to
change an existing law by a declara-
tory statute; and where the statute
is only to operate upon future cases
it is no objection to its validity that
it assumes the law to have been m
past what it is now declared that it
shall be in the future. But the leg-
islative action cannot be made to
retroact upon past controversies and
to reverse decisions which the courts
in the exercise of their undoubted au-
thority have made." Cooley's Const.
Lim. (4th Ed.), 94, and cases cited.
This book is one of great value and
cannot be to carefully studied.
20 OF THE LAWS OF EKGLAND. [!XTUO.
Remedial statutes arc those which are made to supply
such defects and abridge such superfluities in the common
law as arise either from the general imperfection of all
human laws, from change of time and circumstances, from
the mistakes and unadvised determinations of unlearned
(or even learned) judges, or from any other cause what-
soever. And this being done, either by enlarging the com-
mon law where it was too narrow and circumscribed, or by
restraining it where it was too lax and luxuriant, hath
occasioned another subordinate division of remedial acts
of parliament into enlarging and restraining statutes. 4 * [87]
Secondly, Rules with regard to the construction of
statutes. 5
1. There are three points to be considered in the con-
struction of all remedial statutes, the old law, the mis-
chief, and the remedy; that is, how the common law stood
at the making of the act, what the mischief was for which
the common law did not provide, and what remedy the
parliament hath provided to cure this mischief. And it is
the business of the judges so to construe the acts as to sup-
press the mischief and advancce the remedy.
2. A statute which treats of things or persons of an in-
ferior rank cannot by any general words be extended to
those of a superior. [88]
3. Penal statutes must be construed strictly.
4. Statutes against frauds are to be liberally and ben-
eficially expounded. This may seem a contradiction to the
last rule, most statutes against frauds being in their con-
sequences penal. But this difference is here to be taken:
where the statute acts upon the offender and inflicts a
penalty, as the pillory or a fine, it is then to be taken
strictly ; but when the statute acts upon the offence, by
4a. A statute giving a party a rem- Construction and Interpretation of
c<ly for a wrong where he had none Laws (2d Ed.), 1911.
or a different one before, is also called 6. A penal statute is one that in-
a remedial statute. flicts a penalty or imposes a forfeit-
5. See " Interpretation " and note, ure. and is not to be extended be-
ante. See. also, generally., Black on yond its words.
SF.CT. 3.] OF THE LAWS OF ENGLAND. 21
f
setting aside the fraudulent transaction, here it is to be
construed liberally.
5. One part of a statute must be so construed by another
that the whole may (if possible) stand \ut res magis valeat,
qu-am pereat. 7 [89]
6. A saving totally repugnant to the body of the act is
void. 8
7. Where the common law and a statute differ, the com-
mon law gives place to the statute, and an old statute gives
place to a new one. But this is to be understood only when
the latter statute is couched in negative terms, or where
its matter is so clearly repugnant that it necessarily implies
a negative. But if both acts be merely affirmative, and
the substance such that both may stand together, here the
latter does not repeal the former, but they shall both have
a concurrent efficacy. [90]
8. If a statute that repeals another is itself repealed
afterwards, the first statute is hereby revived without any
formal words for that purpose. 9
9. Acts of parliament derogatory from the power of sub-
sequent parliaments bind not. [See Const. U. S., Art. I.,
sec. 10, relative to laws impairing the obligation of
contracts.] 1
10. Lastly, acts of parliament that are impossible to be
performed are of no validity; and if there arise out of them
collaterally any absurd consequences manifestly contra-
dictory to common reason, they are, with regard to those
collateral consequences, void. [91] But if the parliament
will positively enact a thing to be done which is unreason-
able, I know of no power in the ordinary forms of the con-
stitution that is vested with authority to control it. 2
7. This is a general rule of con- also in the United States jurisdiction,
struction and also applies to con- Repeals by implication are not fa-
tracts and wills, etc. vored.
8. See 1 Kent Com., pp. 462, 463. 1. See Cooley's Const. Lira. (4th
9. This rule has been changed by Ed.)j *126 and cases cited.
etatute in some of the states and 2. The courts, however, will, if poa-
22 COUNTRIES SUBJECT TO LAWS. [INTRO.
X
SECTION IV.
OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND.
The kingdom of England, over which our municipal
laws have jurisdiction, includes not, by the common law,
either Wales, Scotland, or Ireland, or any other part of
the king's dominions, except the territory of England only. s
[93]
The kingdom of England in particular comprehends not
only Wales and Berwick [by statute], but also part of the
sea. The main or high seas are part of the realm of Eng-
land, for thereon our courts of admiralty 4 have jurisdic-
tion; but they are not subject to the common law. [110]
This main sea begins at the low-water mark. But between
the high-water mark and the low-water mark, where the
sea ebbs and flows, the common law and the admiralty have
dirisum imperium, an alternate jurisdiction, one upon
the wafer when it is full sea, the other upon the land when
it is an ebb.
The territory of England is liable to two divisions, the one ecclesias-
tical, the other civil, [ill]
1. The ecclesiastical division is, primarily, into two provinces, those of
Canterbury and York. A province is the circuit of an archbishop's juris-
diction. Each province contains divers dioceses, or sees of suffragan
bishops, whereof Canterbury includes twenty-one [23] and York three
[7], besides the bishopric of the Isle of Man. Every diocese is divided
sible, give a statute a reasonable in- 4. The constitution of the United
terpretation. States grants to the federal govern-
In the United States, however, a ment judicial power over * * *
statute may be declared void as being " all cases of admiralty and maritime
in conflict with either the constitu- jurisdiction." As to the extent of
tion of the United States or of a this grant, see Benedict's Admiralty
state. (4th Ed.), pp. 5, 7, 11, and notes in
3. See 1 Broom & Hadley's Com- which the cases are fully cited, also
mentaries on the Laws of England, Hughes on Admiralty, p. 7 et seq.
Introduction, sec. 4.
SECT. 4.] COUNTRIES SUBJECT TO LAWS. 23
into archdeaconries, whereof there are sixty in all, each archdeaconry
into rural deaneries, which are the circuit of the archdeacon's and rural
dean's jurisdiction, of whom hereafter, and every deanery is divided into
parishes.
A parish is that circuit of ground which is committed to the charge of
one parson or vicar, or other minister having cure of souls therein.
2. The civil division of the territory of England is into counties, of
those counties into hundreds, of those hundreds into tithings or
towns. [113]
BOOK THE FIRST.
OF THE RIGHTS OF PERSONS.
CHAPTER I.
OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.
The primary and principal object of the law are rights
and wrongs. [122]
Rights are, however, liable to another subdivision, being
either, first, those which concern and are annexed to the
persons of men, and are then called jura personarum, or the
rights of persons; or they are, secondly, such as a man may
acquire over external objects or things unconnected with
his person, which are styled jura rerum, or the rights of
things. 1 Wrongs also are divisible into,' first, private
wrongs, which, being an infringement merely of particular
rights, concern individuals only, and are called civil in-
juries; and, secondly, public wrongs, which, being a breach
of general and public rights, affect the whole community,
and are called crimes and misdemeanors.
The present commentaries will consist of the four follow-
ing parts : 1. The rights of persons, with the means whereby
such rights may be either acquired or lost; 2. The rights
of things, with the means also of acquiring and losing them;
3. Private wrongs, or civil injuries, with the means of re-
dressing them by law; 4. Public wrongs or cirmes and mis-
demeanors, with the means of prevention and punishment.
First. The rights of persons, with the means of acquir-
ing and losing them.
1. See Introduction to Hammond's Justinian, p. I et seq., for a learned
discussion of this subject.
[25]
26 ABSOLUTE RIGHTS OF INDIVIDUALS. [BOOK I.
The rights of persons that are commanded to be observed
by the municipal law are of two sorts: First, such as are
due from every citizen, which are usually called civil duties;
and, secondly, such as belong to him, which is the more
popular acceptation of rights or jura. [1231 Both may
indeed be comprised in this latter division; for, as all social
duties are of a relative nature, at the same time that they
are due from one man or set of men, they must also be due
to another. But it will be more clear and easy to consider
many of them as duties required from, rather than as rights
belonging to, particular persons.
Persons also are divided by the law into either natural
persons or artificial. Natural persons are such as the God
of nature formed us; artificial are such as are created and
devised by human laws for the purposes of society and
government, which are called corporations or bodies
politic. 2
The rights of persons considered in their natural capaci-
ties are also of two sorts, absolute and relative. Abso-
lute, which are such as appertain and belong to particular
men merely as individuals or single persons ; relative, which
are incident to them as members of society and standing
in various relations to each other. .
By the absolute rights of individuals we mean those
which are so in their primary and strictest sense, such as
would belong to their persons merely in a state of nature,
and which every man is entitled to enjoy, whether out of
society or in it. But with regard to the absolute duties
which man is bound to perform, considered as a mere in-
dividual, it is not to be expected that any human municipal
law should at all explain or enforce them. [124] For the
end and intent of such laws being only to regulate the be-
havior of mankind, as they are members of society and
stand in various relations to each other, they have conse-
quently no concern with any other but social or relative
duties. But with respect to rights the case is different.
Human laws define and enforce as well those rights which
2. Considered post.
CHAP. I.] ABSOLUTE RIGHTS OF INDIVIDUAL'S. 27
belong to a man considered as an individual as those which
belong to him considered as related to others. The prin-
cipal view of human laws is, or ought always to be, to ex-
plain, protect, and enforce such rights as are absolute,
which in themselves are few and simple, and then such
rights as are relative, which, arising from a variety of con-
nections, will be far more numerous and more complicated.
[125]
The absolute rights of man, considered as a free agent,
are usually summed up in one general appellation, and
denominated the natural liberty of mankind. This natural
liberty consists properly in a power of acting as one thinks
fit, without any restraint or control unless by the law of
nature, being a right inherent in us by birth, and one
of the gifts of God to man at his creation, when he endued
him with the faculty of free will. But every man, when
he enters into society gives up a part of his natural liberty
as the price of so valuable a purchase, and, in consideration
of receiving the advantages of mutual commerce, obliges
himself to conform to those laws which the community has
thought proper to establish. Political, therefore, or civil
liberty, which is that of a member of society, is no other
than natural liberty so far restrained by human laws (and
no farther) as is necessary and expedient for the general
advantage of the public. 3
The fundamental articles of the absolute rights of every
Englishman (which, taken in a political and extensive
sense, are usually called their liberties) have been from
time to time asserted in parliament as often as they were
3. Referring to Civil Liberty, Judge action of individual members of the
Cooley in his work on Torts, p. *8, political society as are needed to pre-
states that writers of acknowledged vent what would be injurious to other
authority employ the term in very individuals or prejudicial to the gen-
different sense. " We prefer [says eral welfare and defining political
he] to distinguish civil from political liberty as consisting in an effectual
liberty, defining the former as that participation of the people in the
condition in which rights are estab- making of the laws. The former may
lished and protected by means of such exist when the latter in absent."
limitations and restraints upon the Cooley on Torts, 9-10.
28 ABSOLUTE RIGHTS OF INDIVIDUALS. [BOOK I.
thought to be in danger. [127] First, by the great charter
of liberties, which was obtained, sword in hand, from King
John, and afterwards, with some alterations, confirmed in
parliament by King Henry the Third, his son, which
charter contained very few new grants, but was for the
most part declaratory of the principal grounds of the funda-
mental laws of England. 4 [128] Afterwards by the statute
called confirmatio cartarum, 5 whereby the Great Charter is
directed to be allowed as the common law. Next, by a
multitude of subsequent corroborating statutes (Sir Edward
Coke, I think, reckons thirty-two), from the First Edward
to Henry the Fourth. Then, after a long interval, by the
petition of right, which was a parliamentary declaration
of the liberties of the people assented to by King Charles
the First in the begining of his reign. Then the habeas
corpus act, passed under Charles the Second. To these
succeeded the bill of rights, or declaration delivered by the
Lords and Commons to the Prince and Princess of Orange,
13th of February, 1688, and afterwards enacted in parlia-
ment, when they became king and queen. Lastly, these
liberties were again asserted at the commencement of the
present century in the act of settlement, whereby the crown
was limited to his present Majesty's illustrious house.
The absolute rights of individuals may be reduced to
three principal or primary articles, the right of personal
security, the right of personal liberty, and the right of
private property [129] [to which may be added the right
of free exercise and enjoyment of religious profession and
worship, and also, in a state of society, of freedom of speech
and of the press.] 6
4. An examination of the various 6. See Const. U. S. Amendments,
state and the United States constitu- art. I.; 2 Kent Com., 34; Cooley's
tions will show that many provisions Const. Lira. (4th Ed.), chaps. 12 and
of Magna Charta have been incorpo- 13. In these chapters (12 and 13)
rated in the various bills of rights, will be found an able discussion of
E. g., see Const. 1870 of El., art. II., these subjects with a full citation of
Bill of Rights; U. S. Const., art. V. authorities.
5. Confirmation of the charters.
CHAP. I.] ABSOLUTE RIGHTS OF INDIVIDUALS. 29
I. The right of personal security consists in a person's
legal and uninterrupted enjoyment of his life, his limbs, his
body, his health, and his reputation.
1. Life is a right inherent by nature in every individual,
and begins in contemplation of law as soon as an infant is
able to stir in the mother's womb. For if a woman is quick
with child, and by a potion or otherwise killeth it in her
womb, or if any one beat her, whereby the child dieth in
her body and she is delivered of a dead child, this, though
not murder, was by the ancient law homicide or man-
slaughter. But the modern law doth not look upon this
offence in quite so atrocious a light, but merely as a heinous
misdemeanor. 7 [130]
An infant in ventre sa mere, or in the mother's womb, is
supposed in law to be born for many purposes. It is capable
of having a legacy or a surrender of a copyhold estate made
to it. It may have a guardian assigned to it, and it is en-
abled to have an estate limited to its use, and to take after-
wards by such limitation as if it were then actually born.
2. A man's limbs (by which for the present we only un-
derstand those members which may be useful to him in
fight, 8 and the loss of which alone amounts to mayhem by
the common law) are also the gift of the wise Creator to
enable him to protect himself from external injuries in a
state of nature. To these therefore he has a natural in-
herent right, and they cannot be wantonly destroyed or
disabled without a manifest breach of civil liberty.
Both the life and limbs of a man are of such high value
in the estimation of the law of England, that it pardons
even homicide if committed se defendendo, 9 or in order to
preserve them. If a man through fear of death or mayhem
is prevailed upon to execute a deed or do any other legal
act, these though accompanied with all the other requisite
solemnities, may be afterwards avoided, if forced upon him
7. See post, Criminal Law. battle afar off." See post, Criminal
8. It is not mayhem at common Law.
law to slit a man's nose, notwith- 9. In self-defense,
standing it is useful to " smell the
30 ABSOLUTE RIGHTS OF INDIVIDUALS. [BOOK I.
by a well-grounded apprehension of losing his life, or even
his limbs, in case of his non-compliance. And the same is
also a sufficient excuse for the commission of many misde-
meanors. The constraint a man is under in these circum-
stances is called in law duress, of which there are two sorts:
duress of imprisonment, 1 where a man actually loses his
liberty, of which we shall presently speak, and duress per
minas, where the hardship is only threatened and impend-
ing, which is that we are now discoursing of. [131] Duress
per minas is either for fear of loss of life, or else for fear
of mayhem or loss of limb. And this fear must be upon
sufficient reason. A fear of battery or being beaten, though
never so well grounded, is no duress, neither is the fear of
having one's house burned or one's goods taken away and
destroyed ; because in these cases, should the threat be per-
formed, a man may have satisfaction by recovering equiva-
lent damages, but no suitable atonement can be made for
the loss of life or limb. [See, however, Ewell's Lead. Cases,
771-773, and cases cited; 14 Am. Law Reg. N. S. 201.]
These rights of life and member can only be determined
by the death of the person, which was formerly accounted
to be either a civil 2 or natural death. [132]
The civil death commenced, if any man was banished or abjured the
realm, by the process of the common law, or entered into religion; that
is, went into a monastery and became there a monk professed: in which
cases he was absolutely dead in law, and his next heir should have his
1. See the subject of Duress in its Skeate v. Beale, 11 Ad. & Ell. 983,
various phases fully considered and duress of goods; Sasportas v. Jen-
the leading cases given in full with nings, 1 Bay, s. c. 470, duress of
voluminous notes in Ewell's Lead, goods. As to who may avail himself
Cases (1st Ed.), 760-794. The fol- of duress, see Huscombe v. Standing,
lowing leading cases will be found Cro. Jac., 187; Thompson v. Lock-
there reported and annotated. Step- wood, 15 John. 256.
ney v. Lloyd, Cro. Eliz. 647, duress 2. By statute in many states vari-
of imprisonment; Watkins v. Baird, ous disabilities, besides imprison-
6 Mass., 506, abuse of legal process; ment, are imposed upon persons con-
Whitefield v. Longfellow. 13 Me. 146, victed of felony. Consult the rocal
duress per minas (by threats) ; Ast- statutes and constitutions. See, also,
ley v. Reynolds. 2 Strange, 915; s. c., U. S. Const., art. 3, sec. 3, clause -;
2 Barnard-K. B. 40, duress of goods; Avery v. Everett, 110 N. Y. 317.
CiiAr. L] ABSOLUTE EIGHTS OF INDIVIDUALS. 31
estate. Since the Reformation this disability is held to be abolished,
as is also the disability of banishment consequent upon abjuration, by
statute 21 Jac. I. c. 28. [133]
This natural life cannot legally be disposed of or de-
stroyed by any individual, neither by the person himself,
nor by any other of his fellow-creatures, merely upon their
own authority. Yet nevertheless it may be frequently for-
feited for the breach of those laws of society which are
enforced by the sanction of capital punishments.
" Nullus liber homo" says the Great Charter, " aliquo
modo destruatur, nisi per legale judicium parium suorum
aut per legem terrae,"* Which words, "aliquo modo de-
striwtur" include a prohibition, not only of killing and
maiming, but also of torturing, and of every oppression by
color of an illegal authority.
3. Besides those limbs and members that may be neces-
sary to a man in order to defend himself or annoy his
enemy, the rest of his person or body is also entitled by the
same natural right to security from the corporal insults of
menaces, assaults, beating, and wounding, though such in-
sults amount not to destruction of life or member. [134]
4. The preservation of a man's health from such prac-
tices as may prejudice or annoy it; and
5. The security of his reputation or good name from the
arts of detraction and slander are rights to which every
man is entitled by reason and natural justice, since without
these it is impossible to have the perfect enjoyment of any
other advantage or right, 4
II. Personal liberty consists in the power of locomotion,
of changing situation, or moving one's person to whatso-
ever place one's own inclination may direct, without im-
prisonment or restraint unless by due course of law. This
is a right strictly natural. The laws of England have never
abridged it without sufficient cause, and in this kingdom
3. No freeman shall in any manner 4. The means by which these rights
be destroyed unless by the legal judg- are protected will be considered later
ment of his peers or by the law of on.
the land.
32 ABSOLUTE RIGHTS OF INDIVIDUALS. [Booic I.
it cannot ever be abridged at the mere discretion of the
magistrate without the explicit permission of the laws.
Here again the language of the Great Charter is, that no
freeman shall be taken or imprisoned but by the lawful
judgment of his equals or by the law of the land. 5 [135]
By 31 Car. II. c. 2, commonly called the habeas corpus
act, 6 the methods of obtaining the writ [of habeas corpus]
are so plainly pointed out and enforced, that, so long as this
statute remains unimpeached, no subject of England can
be long detained in prison, except in those cases in which
the law requires and justifies such detainer. And, lest this
act should be evaded by demanding unreasonable bail or
sureties for the prisoner's appearance, it is declared by
1 W. and M. st. 2, c. 2, that excessive bail ought not to be
required.
The confinement of the person in any wise is an imprison-
ment, so that the keeping a man against his will in a private
house, putting him in the stocks, arresting or forcibly de-
taining him in the street, is an imprisonment. [136] And
the law so much discourages unlawful confinement, that if
a man is under duress of imprisonment, which we before
explained to mean a compulsion by an illegal restraint of
liberty, until he seals a bond or the like, he may allege this
duress, and avoid the extorted bond. But if a man be law-
fully imprisoned, and, either to procure his discharge or
on any other fair account, seals a bond or a deed, this is
not by duress of imprisonment, and he is not at liberty to
avoid it. [137] To make imprisonment lawful, it must
either be by process from the courts of judicature or by
warrant from some legal officer having authority to commit
to prison, which warrant must be in writing, under the hand
and seal of the magistrate, and express the causes of the
commitment, in order to be examined into if necessary upon
5. See Cooley's Const. Lira. (4th ities. See also, Blackwell on Tax
ed.), ch. XI. (82 pages), for a learned Titles, pp. 6, 11.
and exhaustive consideration of the 6. See the various state constitu-
protection afforded by the law of the tions and art. 1, sec. 9, clause 2, U. S.
land with a full citation of author- Const.
CHAP. I.] ABSOLUTE RIGHTS OF INDIVIDUALS. 33
a liabeas corpus. If there be no cause expressed, the jailer
is not bound to detain the prisoner. 7
A natural and regular consequence of this personal lib-
erty is that every Englishman may claim a right to abide
in his own country so long as he pleases, and not to be
driven from it unless by the sentence of the law. The king,
indeed, by his royal prerogative, may issue out his writ ne
exeat regno, 8 and prohibit any of his subjects from going
into foreign parts without license. But no power on earth,
except the authority of parliament, can send any subject
of England out of the land against his will no, not even
a criminal. For exile and transportation are punishments
at present unknown to the common law, and wherever the
latter is now inflicted it is either by the choice of the crim-
inal himself to escape a capital punishment, or else by the
express direction of some modern act of parliament. To
this purpose the Great Charter declares that no freeman
shall be banished unless by the judgment of his peers or by
the law of the land. Though within the realm the king may
command the attendance and service of all his liegemen,
yet he cannot send any man criit of the realm, even upon
the public service, excepting sailors and soldiers, the nature
of whose employment necessarily implies an exception; he
cannot even constitute a man lord deputy or lieutenant of
Ireland against his will, nor make him a foreign ambas-
sador. [138] For this might in reality be no more than an
honorable exile.
III. The third absolute right, inherent in every English-
man, is that of property, which consists in the free use, en-
joyment, and disposal of all his acquisitions, without any
7. There are various cases in which mon, may in certain cases be issued
an arrest may be justified without in aid of equitable remedies in order
legal process, as, for example, of a to protect the defendant from defeat-
child by his parents in certain cases, ing the relief sought by leaving the
arrests without warrant of a person state or removing therefrom his prop-
committing a felony, etc. These cases erty. It is a sort of process to compel
will be considered in their proper the giving of bail in equitable cases,
places. See Cooley on Torts, 174. See 2 Bouvier Law Diet., ne exeat
8. Let him not depart from the republica; 2 Kent Com., 32, and au-
kingdom. This writ, though not com- thorities cited.
3
34 ABSOLUTE RIGHTS OF INDIVIDUALS. [BOOK I.
control or diminution save only by the laws of the land.
Upon this principle the Great Charter has declared that no
freeman shall be disseised or divested of his freehold, or
of his liberties or free customs, but by the judgment of his
peers or by the law of the land. 9 [139]
So great, moreover, is the regard of the law for private
property, that it will not authorize the least violation of it,
not even for the general good of the whole community. If
a new road, for instance, were to be made through the
grounds of a private person, it might perhaps be extensively
beneficial to the public; but the law permits no man, or set
of men, to do this without consent of the owner of the land.
In this and similar cases the legislature alone can, indeed
frequently does, interpose and compel the individual to
acquiesce, not by absolutely stripping the subject of his
property in an arbitrary manner, but by giving him a full
indemnification and equivalent for the injury thereby
sustained. 1
No subject of England can be constrained to pay any
aids or taxes, even for the defence of the realm or the sup-
port of government, but such as are imposed by his own
consent or that of his representatives in parliament. 2 [140]
The constitution has established certain other auxiliary
subordinate rights of the subject, which serve principally
as outworks or barriers to protect and maintain inviolate
the three great and primary rights of personal security,
personal liberty, and private property. [141] These are,
1. The constitution, powers, and privileges of parliament.
2. The limitation of the king's prerogative by bounds so
certain and notorious that it is impossible he should either
mistake or legally exceed them without the consent of the
people.
9. See notes, ante. even destroyed, as in case of the de-
1. See generally Cooley's Const. struction of houses to prevent the
Lim., ch. 15; Lewis on Eminent Do- spreading of a fire, pestilence, etc.
main; Mills, Em. Dora.; Nichols, Em. See Cooley on Torts, 594 and cases
Dom. ; Randolph, Em. Dom.; 1 Bou- cited.
vier Law Diet. Em. Dom. In cases 2. See generally Cooley on Taxa-
of controlling public necessity, also, tion; Blackwell on Tax Titles.
private property may be taken or
CHAP. L] ABSOLUTE RIGHTS OF INDIVIDUALS. 35
3. The right of applying to the courts of justice for re-
dress of injuries. The emphatical words of Magnet Charta,
spoken in the person of the king, who, in judgment of law
(says Sir Edward Coke), is ever present and repeating
them in all his courts, are these: nulli vendernus, nulli
negabimus, aut differemus rectum vel justitiam. 3 "And
therefore every subject, ' ' continues the same learned author,
" for injury done to him in bonis, in terris, vel persona* by
any other subject, be he ecclesiastical or temporal, without
any exception, may take his remedy by the course of the
law, and have justice and right for the injury done to him
freely without sale, fully without any denial, and speedily
without delay."
Not only the substantial part or judicial decisions of the
law, but also the formal part or method of proceeding can*
not be altered but by parliament. [142] The king, it is
true, may erect new courts of justice, but then they must
proceed according to the old established forms of the com-
mon law.
4. If there should happen any uncommon injury, or in-
fringement of the rights before mentioned, wJbieh the ordin-
ary course of law is too defective to reach, there still re-
mains a fourth subordinate right appertaining to every
individual, namely, the right of petitioning the king or
either house of parliament for the redress of grievances. 5
[143] Care only must be taken lest, under the pretence of
petitioning, the subject be guilty of any riot or tumult, as
happened in the opening of the memorable parliament in
1640.
5. The fifth auxiliary right of the subject is that of hav-
ing arms for their defence suitable to their condition and
degree, and such as are allowed by law. 6 [144]
3. To none will we sell, to none The statutory prohibition of carry-
will we deny or delay right or justice. ing concealed weapons is generally
4. In goods, lands, or person. held to be constitutional, though
5. See U. S. Const. Amendments, there are cases to the contrary. See
art. 1, also the several state consti- Cooley Const. Lira. (4th ed.), *350
tutions. note and cases cited; 2 Bish. Grim.
6. See IL S. Const. Amendments, Law (3d ed.), 125.
art. 2, and state constitutions; Cooley /
Const. Lirn., *350.
36 OF THE PARLIAMENT. [BOOK I.
CHAPTER II.
OF THE PARLIAMENT.
The most universal public relation by which men are
connected together, is that of government: namely, as gov-
ernors or governed; or, in other words, as magistrates and
people. [146] Of magistrates, some also are supreme, in
whom the sovereign power of the state resides; others are
subordinate, deriving all their authority from the supreme
magistrate, accountable to him for their conduct, and acting
in an inferior, secondary sphere.
In all tyrannical governments the supreme magistracy,
or the right of both making and of enforcing the laws, is
Vested in one and the same man or one and the same body
of men; and wherever these two powers are united together,
there can be no public liberty. But where the legislative
and executive authority are in distinct hands, the former
will take care not to intrust the latter with so large a power
as may tend to the subversion of its own independence, and
therewith of the liberty of the subject. With us, therefore,
in England, this supreme power is divided into two
branches: the one legislative, to wit the parliament, con-
sisting of king, Lords, and Commons; the other executive,
consisting of the king alone. 1 [147]
I. As to the manner and time of assembling of parlia-
ment. The parliament is regularly to be summoned by the
king's writ or letter, issued out of chancery by advice of
the privy council, at least forty [now thirty-five] days be-
fore it begins to sit. [150] It is a branch of the royal
prerogative that no parliament can be convened by its own
authority, or by the authority of any, except the king alone.
Nor is it an exception to this rule that, by some modern
statutes, on the demise of a king or queen, if there be then
no parliament in being, the last parliament revives, and it
1. In the United States and the ecutive and judicial, each supreme
several states there are three co-ordi- within its appropriate sphere and
aate departments, the legislative, ex- within the limits of the constitution.
CHAP. II.] OF THE PARLIAMENT. 37
is to sit again for six months, unless dissolved by the succes-
sor, for this revived parliament must have been originally
summoned by the crown.
By the statute 16 Car. II. c. 1, it is enacted that the sitting
and holding of parliaments shall not be intermitted above
three years at the most. [153] And by the statute 1 W.
and M. st. 2, c. 2, it is declared to be one of the rights of
the people, that for redress of all grievances, and for the
amending, strengthening, and preserving the laws, parlia-
ments ought to be held frequently. And this indefinite
frequency is again reduced to a certainty by statute 6 W.
and M. c. 2, which enacts, as the statute of Charles the
Second had done before, that a new parliament shall be
called within three years after the determination of the
former. [Owing to the fact that the mutiny act and sup-
plies are voted for only one year, annual sessions are now
necessary.]
II. The constituent parts of a parliament are the king's
majesty, sitting there in his royal political capacity and
the three estates of the realm, the Lords Spiritual, the Lords
Temporal (who sit, together with the king, in one house),
and the Commons, who sit by themselves in another. And
the king and these three estates together form the great
corporation of body politic of the kingdom, of which the
king is said to be caput, principium, et finis. 2 For upon
their coming together the king meets them, either in person
or by representation, without which there can be no be-
gining of a parliament; and he also has alone the power of
dissolving them.
It is highly necessary for preserving the balance of the
constitution that the executive power should be a branch,
though not the whole, of the legislative. [154] The total
union of them w r ould be productive, of tyranny; the total
disjunction of them, for the present, would in the end pro-
duce the same effects, by causing that union against which
it seems to provide. The legislative would soon become
tyrannical, by making continual encroachments, and gradu-
2. The head, the beginning and the end.
3S OF THE PARLIAMENT. [BOOK I.
ally assuming to itself the rights of the executive power.
To hinder, therefore, any such encroachments the king is
himself a part of the parliament; and as this is the reason
of his being so, very properly, therefore, the share of legis-
lation, which the constitution has placed in the crown, con-
sists in the power of refecting rather than resolving, this
being sufficient to answer the end proposed. 3 And herein
indeed consists the true excellence of the English govern-
ment, that all the parts of it form a mutual check upon each
other. [155] In the legislature, the people are a check
upon the nobility, and the nobility a check upon the people,
by the mutual privilege of rejecting what the other has
resolved; while the king is a check upon both, which pre-
serves the executive power from encroachments. And this
very executive power is again checked and kept within due
bounds by the two Houses, through the privilege they have
of inquiring into, impeaching, 4 and punishing the conduct
(not indeed of the king, which would destroy his constitu-
tional independence, but, which is more beneficial to the
public) of his evil and pernicious counsellors.
[The king's majesty is the subject of subsequent
chapters.]
The Spiritual Lords consist of two archbishops and
twenty-four bishops, and at the dissolution of monastries
by Henry VIII. consisted likewise of twenty-six mitred
abbots and two priors, a very considerable body, and in
those times equal in number to the temporal nobility. But
though these Lords Spiritual are in the eye of the law a
distinct estate from the Lords Temporal, and are so dis-
tinguished in most of our acts of parliament, yet in practice
they are usually blended together under the one name of
the Lords. They intermix in their votes, and the majority
of such intermixture joins both estates. [156] And from
this want of a separate assembly and separate negative of
the prelates, some writers have argued very cogently that
3. The veto power is practically ob- United States. See U. S. Const., art.
eolete in England though not in the 1, sec. 7, cl. 2.
4. See U. S. Const., art. 2, sec. 4.
CHAP. II.] OF THE PARLIAMENT. 30
the Lords Temporal and Spiritual are now in reality only
one estate, which is unquestionably true in every effectual
sense, though the ancient distinction between them still
nominally continues.
The Lords Temporal consist of all the peers of the realm
(the bishops not being in strictness held to be such, but
merely lords of parliament), by whatever title of nobility
distinguished, dukes, marquises, earls, viscounts, or barons.
[157] Some of these sit by descent, as do all ancient peers;
some by creation, as do all new-made ones; others, since
the union with Scotland, by election, which is the case of
the sixteen peers who represent the body of the Scots no-
bility. Their number is indefinite, and may be increased
at will by the power of the crown.
The Commons consist of all such men of property in the
kingdom as have not seats in the House of Lords, every
one of which has a voice in parliament, either personally
or by his representatives. [158] The counties are repre-
sented by knights, elected by the proprietors of lands; the
citizens and boroughs are represented by citizens and
burgesses, chosen by the mercantile part, or supposed trad-
ing interest of the nation. [159]
The number of English representatives is 513, and of Scots 45; in all
558 [652]). And every member, though chosen by one particular dis-
trict, when elected and returned, serves for the whole realm. For the
end of his coming thither is not particular, but general; not barely to
advantage his constituents, but the common wealth. And therefore he is
not bound, like a deputy in the United Provinces, to consult with or take
the advice of his constituents upon any particular point, unless he him-
self thinks it proper or prudent so to do.
III. We are next to examine the laws and customs re-
lating to parliament thus united together, and considered
as one aggregate body. [160]
The power and jurisdiction of parliament is so tran-
scendent and absolute, that it cannot be confined, either
for causes or persons, within any bounds. It hath sovereign
and uncontrollable authority in the making, confirming,
enlarging, restraining, abrogating, repealing, reviving, and
40 OF THE PARLIAMENT. [BOOK I.
expounding of laws, concerning matters of all possible de-
nominations, ecclesiastical or temporal, civil, military, mari-
time, or criminal: this being the place where that absolute
despotic power, which must in all governments reside some-
where, is intrusted by the constitution of these kingdoms.
All mischiefs and grievances, operations and remedies, that
transcend the ordinary course of the laws are within the
reach of this extraordinary tribunal. [161] It can regulate
or new model the succession to the crown; it can alter the
established religion of the land; it can change and create
afresh even the constitution of the kingdom and of parlia-
ments themselves, it can, in short, do everything that is
not naturally impossible; and therefore some have not
scrupled to call its power, by a figure rather too bold, the
omnipotence of parliament. 5
The whole of the law and custom of parliament has its
original from this one maxim, ' ' that whatever matter arises
concerning either House of parliament ought to be exam-
ined, discussed, and adjudged in that house to which it
relates, and not elsewhere." 6 [163] Hence, for instance,
the Lords will not suffer the Commons to interfere in set-
tling the election of a peer of Scotland; the Commons will
not allow the Lords to judge of the election of a burgess;
nor will either House permit the subordinate courts of law
to examine the merits of either case. 7
The privileges of parliament are likewise very large and
indefinite. [164] "And the determination and knowledge
of that privilege belongs to the Lords of parliament, and
not to the justices." Privilege of parliament was princi-
pally established in order to protect its members, not only
from being molested by their fellow-subjects, but also more
especially from being oppressed by the power of the crown.
The dignity and independence of the two Houses are in
great measure preserved by keeping their privileges in-
5. In this country both the state 6. See U. S. Const., art. 1, sec. 5,
and federal legislatures are limited cl. 1.
in their powers by written constitu- 7. See U. S. Const., art. 1, sec. 5,
tions and any statute contrary to the cl. 1.
constitution is null and void.
CHAP. II.] OF THE PARLIAMENT. 41
definite. [These privileges are circumscribed by law and
determined by precedent.] Some, however, of the more
notorious privileges of the members of either House are
privilege of speech, of person, of their domestics, and of
their lands and goods.
As to the first privilege, of speech, 8 it is declared by the
statute 1 W. and M. st. 2, c. 2, as one of the liberties of the
people, " that the freedom of speech and debates and pro-
ceedings in parliament ought not to be impeached or ques-
tioned in any court or place out of parliament. ' ' And this
freedom of speech is particularly demanded of the king
in person by the Speaker of the House of Commons at the
opening of every new parliament. So likewise are the other
privileges of persons, 9 servants, lands, and goods, which
are immunities as ancient as Edward the Confessor. [1651
This included formerly not only privilege from illegal vio-
lence, but also from legal arrests, and seizures by process
from the courts of law. And still, to assault by violence
a member of either House, or his menial servants, is a high
contempt of parliament, and there punished with the
utmost severity. Neither can any member of either House
be arrested and taken into custody, unless for some indict-
able offence, without a breach of the privilege of parlia-
ment.
But all other privileges which derogate from the common
law in matters of civil right are now at an end, save only
as to the freedom of the member's person, which in a peer
(by the privilege of peerage) is forever sacred and inviol-
able, and in a commoner (by the privilege of parliament)
for forty days after every prorogation and forty days be-
fore the next appointed meeting, which is now in effect as
long as the parliament subsists, it seldom being prorogued
for more than fourscore days at a time. All other privileges
which obstruct the ordinary course of justice are now
8. See U. S. Const., art. 1, sec. 6, ing therefrom; but there is no privi-
cl. 1. lege of servants, lands or goods. See
9. In this country privilege of per- generally Cooley's Const. Lim. (4th
son extends to attendance at session ed.), *134 et seq.
of legislature and going and return-
42 OF THE PARLIAMENT. [BOOK I.
totally abolished by statute 10 Geo. III. c. 50, which enacts
that any suit may at any time be brought against any peer
or member of parliament, their servants, or any other per-
son entitled to privilege of parliament, which shall not be
impeached or delayed by pretence of any such privilege,
except that the person of a member of the House of Com-
mons shall not thereby be subjected to any arrest of im-
prisonment.
The only way by which courts of justice could anciently
take cognizance of privilege of parliament was by writ of
privilege, in the nature of a supersedeas, to deliver the
party out of custody when arrested in a civil suit. But
since the statute 12 W. III. c. 3, which enacts that no privi-
leged person shall be subject to arrest or imprisonment, it
hath been held that such arrest is irregular ab initio, and
that the party may be discharged upon motion [or on
Iwbeas corpus].
The claim of privilege hath been usually guarded with
an exception as to the case of indictable crimes, or, as it
has been frequently expressed, of treason, felony, and
breach (or surety) of the peace. Whereby it seems to have
been understood that no privilege was allowable to the
members, their families or servants, in any crime whatso-
ever, for all crimes are treated by the law as being contra
pacem domini reyis. 1 To which may be added that a few
years ago the case of writing and publishing seditious
libels was resolved by both Houses not to be entitled to
privilege, and that the reasons upon which that case pro-
ceeded extended equally to every indictable offence. [167]
So that the chief, if not the only, privilege of parliament in
such cases seems to be the right of receiving immediate
information of the imprisonment or detention of any mem-
ber, with the reason for which he is detained.
IV. The laws and customs relating to the House of Lords in particular.
Their judicial capacity will be more properly treated of in the third and
fourth books of these Commentaries.
They hare a right to be attended, and constantly are, by the judges
1. Against the king's peace.
CHAP. II.] OF THE PARLIAMENT. 43
of the Court of King's Bench and Common Pleas, and such of the Barons
of the Exchequer as are of the degree "of the coif, or haTe been made
Serjeants at law; as likewise by the king's learned counsel, being ser-
jeants, and by the masters of the court of chancery, for their advice in
point of law, and for the greater dignity of their proceedings. [168]
Another privilege is, that every peer, by license obtained from the
king, may make another lord of parliament his proxy, to vote for him in
his absence a privilege which a member of the other House can by
no means have, as he is himself but a proxy for a multitude of other
people.
Each peer has also a right, by leave of the House, when a vote passes
contrary to his sentiments, to enter his dissent on the journals of the
House, with the reasons for such dissent, which is usually styled his
protest.
All bills, likewise, that may in their consequences any way affect the
right of the peerage are by the custom of parliament to have their first
rise and beginning in the House of Peers, and to suffer no changes or
amendments in the House of Commons.
V. The peculiar laws and customs of the House of Com-
mons relate principally to the raising of taxes and the elec-
tion 'of members to serve in parliament. [169]
First, with regard to taxes, it is the ancient indisputable
privilege and right of the House of Commons that all grants
of subsidies or parliamentary aids do begin in their House 2
and are first bestowed by them, although their grants are
not effectual to all intents and purposes until they have
the assent of the other two branches of the legislature.
[See U. S. Const., Art. 1, 7.] So reasonably jealous are
the commons of this valuable privilege, that herein they
will not suffer the other House to exert any power but that
of rejecting; they will not permit the least alteration or
amendment to be made by the Lords to the mode of taxing
the people by a money bill. [170]
[With regard to the elections of knights, citizens, and burgesses [170],
the qualifications of the electors and of the persons to be elected, and the
method of proceeding in elections, the student is referred, in addition
to the text of our author, to 1 Broom and Hadley's Commentaries, *204
et seq.~\
2. See U. S. Const., art. 1, sec. 7, cl. 1; Id., sec. 8, cl. 1.
44 OP THE PARLIAMENT. [BooK T.
VI. The method of making laws is much the same in both
Houses, and I shall touch it very briefly, beginning in the
House of Commons. [181] For despatch of business each
House of parliament has its Speaker. The Speaker of the
House of Lords, whose office it is to preside there and
manage the formality of business, is the Lord Chancellor,
or Keeper of the King's Great Seal, or any other appointed
by the king's commission; and if none be so appointed, the
House of Lords (it is said) may elect. The Speaker of the
House of Commons is chosen by the House, but must be
approved by the king. And herein the usage of the two
Houses differs, that the Speaker of the House of Com-
mons cannot give his opinion or argue any question in the
House [except upon committee of the whole] ; but the
Speaker of the House of Lords, if a lord of parliament, may.
In each House the act of the majority binds the whole,
and this majority is declared by votes openly and publicly
given.
To bring a bill into the House, if the relief sought by it
is of a private nature, it is first necessary to prefer a peti-
tion, which must be presented by a member, and usually
sets forth the grievance desired to be remedied. This peti-
tion (when founded on facts that may be in their nature
disputed) is referred to a committee of members, who ex-
amine the matter alleged, and accordingly report it to the
House; and then (or otherwise, upon the mere petition)
leave is given to bring in the bill. In public matters the
bill is brought in upon motion made to the House, without
any petition at all.
The persons directed to bring in the bill present it in a
competent time to the House drawn out on paper, with a
multitude of blanks or void spaces where anything occurs
that is dubious or necessary to be settled by the parliament
itself (such especially as the precise date of times, the
nature and quantity of penalties, or of any sums of money
to be raised), being indeed only the skeleton of the bill.
[182] In the House of Lords, if the bill begins there, it is
(when of a private nature) referred to two of the judges to
examine and report the state of the facts alleged, to see that
CHAP. II.] OF THE PARLIAMENT. 45
all necessary parties consent, and to settle all points of
technical propriety. This is read a first time, and at a con-
venient distance a second time ; and after each reading the
Speaker opens to the House the substance of the bill, and
puts the question whether it shall proceed any farther. The
introduction of the bill may be originally opposed, as the
bill itself may at either of the readings; and if the opposi-
tion succeeds, the bill must be dropped for that session, as
it must also if opposed with success in any of the subse-
quent stages.
After the second reading it is committed; that is, referred
to a committee, which is either selected by the House in
matters of small importance, or else upon a bill of conse-
quence the House resolves itself into a Committee of the
whole House. A Committee of the whole House is com-
posed of every member, and to form it the Speaker quits
the chair (another member being appointed chairman), and
may sit and debate as a private member. In these com-
mittees the bill is debated clause by clause, amendments
made, the blanks filled up, and sometimes the bill entirely
new modelled. After it has gone through the committee
the Chairman reports it to the House, with such amend-
ments as the committee have made, and then the House
reconsiders the whole bill again, and the question is re-
peatedly put upon every clause and amendment. [183]
When the House hath agreed or disagreed to the amend-
ments of the committee, and sometimes added new amend-
ments of its own, the bill is then ordered to be engrossed,
or written in a strong gross hand on one or more long rolls
(or presses) of parchment sewed together. When this is
finished it is read a third time, and amendments are some-
times then made to it; and if a new clause be added, it is
done by tacking a separate piece of parchment on the bill,
which is called a rider. The Speaker then again opens
the contents, and holding it up in his hands, puts the ques-
tion whether the bill shall pass. If this is agreed to, the
title to it is then settled. After this one of the members
is directed to carry it to the Lords and desire their concur-
rence, who, attended by several more, carries it to the bar
46 OF THE PARLIAMENT. [BOOK I.
of the House of" Peers, and there delivers it to their Speaker,
who comes down from his woolsack to receive it.
It there passes through the same forms as in the other
House (except engrossing, which is already done), and if
rejected no more notice is taken, but it passes sub silent io,
to prevent unbecoming altercations. But if it is agreed to,
the Lords send a message by two masters in chancery (or,
upon matters of high dignity or importance, by two of the
judges) that they have agreed to the same, and the bill
remains with the Lords if they have made no amendment
to it. But if any amendments are made, such amendments
are sent down with the bill to receive the concurrence of
the Commons. If the Commons disagree to the amend-
ments, a conference usually follows between members
deputed from each House, who for the most part settle and
adjust the difference; but if both Houses remain inflexible
the bill is dropped. If the Commons agree to the amend-
ments the bill is sent back to the Lords by one of the mem-
bers, with a message to acquaint them therewith. [184]
The same forms are observed, mutatis mutandis, when the
bill begins in the House of Lords. 3 But when an act of
grace or pardon is passed, it is first signed by his Majesty,
and then read once only in each of the Houses without any
new engrossing or amendment. And when both Houses
have done with any bill it always is deposited in the House
of Peers to wait the royal assent, except in the case of a
bill of supply, which, after receiving the concurrence of
the Lords, is sent back to the House of Commons.
The royal assent may be given two ways: 1. In person,
when the king comes to the House of Peers in his crown
and royal robes, and, sending for the Commons to the bar,
the titles of all the bills that have passed both houses are
read, and the king's answer is declared by the clerk of the
parliament in Norman-PYench. 2. By the statute 33 Hen.
VIII. c. 21, the king may give his assent by letters patent
under his great seal, signed with his hand, and notified in
3. See generally as to the enact-
ment of laws in this country, Cooley'a
Const. Lim., ch. 6.
CHAP. II.] OF THE PARLIAMENT. 4,7
his absence to both Houses assembled together in the high
House. [185] And when the bill has received the royal
assent in either of these ways it is then, and not before, a
statute or act of parliament.
This statute or act is placed among the records of the
kingdom, there needing no formal promulgation to give it
the force of a law, because every man in England is, in judg-
ment of law, party to the making of an act of parliament,
being present thereat by his representatives. However, a
copy thereof is usually printed at the king's press for the
information of the whole land.
An act of parliament thus made is the exercise of the
highest authority that this kingdom acknowledges upon
earth. It hath power to bind every subject in the land and
the dominions thereunto belonging, nay, even the king
himself if particularly named therein. And it cannot be
altered, amended, dispensed with, suspended, or repealed,
but in the same forms and by the same authority of parlia-
ment. [186]
VII. An adjournment is no more than a continuance of
the session from one day to another, as the word itself signi-
fies, and this is done by the authority of each House separ-
ately every day, and sometimes for a fortnight or a month
together. But the adjournment of one House is no adjourn-
ment of the other. 4 Prorogation puts an end to the session,
and then such bills as are only begun and not perfected
must be resumed de novo (if at all) in a subsequent session,
whereas after an adjournment all things continue in the
same state as at the time of the adjournment made, and
may be proceeded on without any fresh commencement.
A prorogation is the continuance of the parliament from
one session to another, 5 as an adjournment is a continuation
of the session from day to day. [187] This is done by the
royal authority, expressed either by the Lord Chancellor
in his Majesty's presence, or by commission from the crown,
4. See U. S. Const., art. 1, sec. 3, 111. 9; Cooley's Const. Lim., *132.
art. 2, sec. 3; People v. Hatch, 33 5. Not the practice in this country.
48 OF THE PARLIAMENT. [BooKl.
or frequently by proclamation. Both Houses are neces-
sarily prorogued at the same time, it not being a proroga-
tion of the House of Lords or Commons, but of the parlia-
ment. The session is never understood to be at an end until
a prorogation, though unless some act be passed or some
judgment given in parliament, it is in truth no session at all.
A dissolution is the civil death of the parliament and this
may be effected three ways:
1. By the king's will, expressed either in person or by
representation.
2. A parliament may be dissolved by the demise of the
crown. [188] This dissolution formerly happened imme-
diately upon the death of the reigning sovereign. But the
calling a new parliament immediately on the inauguration
of the successor being found inconvenient, and dangers
being apprehended from having no parliament in being in
case of a disputed succession, it was enacted by the statutes
7 and 8 W. III. c. 15, and 6 Anne, c. 7, that the parliament
in being shall continue for six months after the death of
any king or queen, unless sooner prorogued or dissolved by
the successor; that if the parliament be at the time of the
king's death separated by adjournment or prorogation, it
shall, notwithstanding, assemble immediately; and that if
no parliament is then in being, the members of the last
parliament shall assemble and be again a parliament.
3. Lastly, a parliament may be dissolved or expire by
length of time. [189] As our constitution now stands, the
parliament must expire, or die a natural death, at the end
of every seventh year, if not sooner dissolved by the royal
prerogative.
CJIAP. III.] OF THE KING AND His TITLE. 49
CHAPTER III.
OF THE KING AND HIS TITLE.
The supreme executive power of these kingdoms is vested
by our laws in a single person, the king or queen, for it
matters not to which' sex the crown descends, but the person
entitled to it, whether male or female, is immediately in-
vested with all the ensigns, rights, and prerogatives of
sovereign power. [190]
The grand fundamental maxim upon which the jus
coronse, or right of succession to the throne of these kind-
doms, depends, I take to be this: " that the crown is, by
common law and constitutional custom, hereditary, and this
in a manner peculiar to itself; but that the right of inheri-
tance may from time to time be changed or limited by act
of parliament, under which limitations the crown still con-
tinues hereditary." [191]
1. First, it is in general hereditary, or descendible to the next heir, on
the death or demise of the last proprietor.
2. Secondly, as to the particular mode of inheritance, it in general cor-
responds with the feodail path of descents, chalked out by the common
law in the succession to landed estates, yet with one or two material ex-
ceptions. [193] Among the females, the crown descends by right of
primogeniture to the eldest daughter only and her issue, and not, as in
common inheritances, to all the daughters at once. [194] On failure of
lineal descendants, the crown goes to the next collateral relations of the
late king, provided they are lineally descended from the blood royal.
But herein there is no objection (as in the case of common descents) to
the succession of a brother, an uncle, or other collateral relation, of the
half blood, provided only that the one ancestor, from whom both are
descended, be that from whose veins the blood royal is communicated to
each. [195]
3. The doctrine of hereditary right does by no means imply an inde-
feasible right to the throne. It is unquestionably in the breast of the
supreme legislative authority of this kingdom, the king and both houses
of parliament, to defeat this hereditary right, and, by particular entails,
limitations, and provisions, to exclude the immediate heir, and vest the
inheritance in any one else.
4
50 OF THE KING AND His TITLB. [BOOK I.
I
4. Bat, fourthly, however, the crown may be limited or transferred,
it still retains its descendible quality, and becomes hereditary in the
wearer of it. [196] And hence in our law the king is said never to die, in
his political capacity, though, in common with other men, he is subject
to mortality in his natural; because immediately upon the natural death
of Henry, William, or Edward, the king survives in his successor.
CHAP. IV.] OF THE KING'S KOYAL FAMILY. 51
CHAPTER IV.
OF THE KING'S ROYAL FAMILY.
The queen of England is either queen regent, queen consort, or queen
dowager. [218]
The queen regent, regnant, or sovereign, is she who holds the crown
in her own right; and such a one has the same powers, prerogatives,
rights, dignities, and duties, as if she had been a king.
The queen consort is the wife of the reigning king; and she, by virtue
of her marriage, is participant of divers prerogatives above other women.
And first, she is a public person, exempt and distinct from the king,
and not, like other married women, so closely connected as to have lost
all legal or separate existence so long as the marriage continues. For
the queen is of ability to purchase lands and to convey them, to make
leases, to grant copyholds, and do other acts of ownership without the
concurrence of her lord, which no other married woman can do. She is
also capable of taking a grant from the king, which no other wife is
from her husband. The queen of England hath separate courts and of-
fices distinct from the king's, not only in matters of ceremony, but even
of law; and her attorney and solicitor general are entitled to a place
within the bar of his majesty's courts, together with the king's counsel.
[219] She may likewise sue and be sued alone, without joining her hus-
band. She may also have a separate property in goods, as well as lands,
and has a right to dispose of them by will. In short, she is in all legal
proceedings looked upon as a feme sole, and not as a feme covert, as a
single, not as a married woman.
The queen hath also many exemptions and minute prerogatives. For
instance, she pays no toll, nor is she liable to any amercement in any
court. But in general unless where the law has expressly declared her
exempted, she is upon the same footing with other subjects, being to all
intents and purposes the king's subject, and not his equal.
But farther, though the queen is in all respects a subject, yet in point
of the security of her life and person, she is put on the same footing with
the king. [222] It is equally treason (by the statute 25 Edw. III.) to
compass or imagine the death of our lady the king's companion, as of
the king himself; and to violate, or defile the queen consort, amounts
to the same high crime, as well in the person committing the fact, as
in the queen herself, if consenting.
The husband of a queen regnant is her subject, and may be guilty of
high treason against her; but in the instance of conjugal infidelity, he
is not subjected to the same penal restrictions. [223]
A queen dowager is the widow of the king, and as such enjoys most
of the privileges belonging to her as queen consort. But it is not high.
52 OF THE KING'S ROYAL FAMILY. [BooK I.
treason to conspire her death or to violate her chastity, because the suc-
cession to the crown is not thereby endangered. Yet still, pro dignitate
regali, no man can marry a queen dowager without special license from
the king, on pain of forfeiting his lands and goods. But she, though
an alien born, shall still be entitled to dower after the king's demise,
which no other alien is. A queen dowager, when married again to a
subject, doth not lose her regal dignity, as peeresses dowager do their
peerage when they marry commoners.
The Prince of Wales, or heir apparent to the crown, and also his
royal consort and the princess royal, or eldest daughter of the king, are
likewise peculiarly regarded by the laws. For by statute 25 Edw. III. to
compass or conspire the death of the former, or to violate the chastity of
either of the latter, are as much high treason as to conspire the death of
the king or violate the chastity of the queen.
The younger sons and daughters of the king, and other branches of
the royal family who are not in the immediate line of succession, were
little farther regarded by the ancient law than to give them to a cer-
tain degree precedence before all peers and public officers, as well ec-
clesiastical as temporal. [224] In 1718, upon a question referred to all
the judges by King George I., it was resolved, by the opinion of ten
against the other two, that the education and care of all the king's grand-
children while minors did belong of right to his Majesty, as king of this
realm, even during their father's life. [225] But they all agreed that the
care and approbation of their marriages, when grown up, belonged to the
king their grandfather. And the judges have more recently concurred
in opinion that this care and approbation extend also to the presump-
tive heir of the crown; though to what other branches of the royal family
the same did extend, they did not find precisely determined. The most
freausnt instances of the crown's interposition go no farther than nephews
and nieces; but examples are not wanting of its reaching to more dis-
tant collaterals. [226]
CHAP. V.] OF THE COUNCILS. 53
CHAPTER V.
OF THE COUNCILS BELONGING TO THE KING.
1. The first of these is the high court of parliament, whereof we have
already treated at large. [227]
2. Secondly, the peers of the realm are by their birth heredity conn,
selors of the crown, and may be called together by the king to impart
their advice in all matters of importance to the realm, either in time of
parliament or (which hath been their principal use) when there is no
parliament in being. [Obsolete.]
Besides this general meeting, it is usually looked upon to be the right
of each particular peer of the realm to demand an audience of the king,
and to lay before him with decency and respect such matters as he shall
judge of importance to the public weal. [228]
3. A third council belonging to the king are, according to Sir Edward
Coke, his judges of the courts of law for law matters. [229]
4. But the principal council belonging to the king is his privy council,
which is generally called by way of eminence the council. And this is a
noble, honorable, and reverend assembly of the king and such as he
wills to be of his privy council in the king's court or palace. The king's
will is the sole constituent of a privy counselor, and this also regulates
their number. Privy counselors are made by the king's nomination with-
out either patent or grant, and on taking the necessary oaths they be-
come immediately privy counselors during the life of the king that
chooses them, but subject to removal at his discretion. [230]
[As to the qualifications, duty, functions, power, and privileges of the
privy council, the student is referred to 1 Broom & Hadley's Commen-
taries, *272 et seq., and to the English statutes upon the subject passed
since 1 the time of our author.]
The dissolution of the privy council depends upon the king's pleasure,
and he may, whenever he thinks proper, discharge any particular mem-
ber, or the whole of it, and appoint another. [232] By the common law,
also, it was dissolved ipso facto by the king's demise, as deriving all its
authority from him. But now, to prevent the inconvenience of having no
council in being at the accession of a new prince, it is enacted by statute
6 Anne, c. 7, that the privy council shall continue for six months after
the demise of the crown, unless sooner determined by the successor.
54 OF THE KING'S DUTIES. [Boox I.
CHAPTER VI.
OF THE KING'S DUTIES.
The principal duty of the king is to goYern his people according to
law. [233]
As to the terms of the original contract between king and people, these
I apprehend to be now couched in the coronation oath, which by the
statute 1 W. and M. st. 1, c. 6, is to be administered to every king and
queen who shall succeed to the imperial crown of these realms by one
of the archbishops or bishops of the realm in the presence of all the
people, who on their parts do reciprocally take the oath of allegiance
to the Crown. [235] This coronation oath is conceived in the following
terms:
The archbishop or bishop shall say: "Will you solemnly promise and
swear to govern the people of this kingdom of England and the dominions
thereto belonging according to the statutes in parliament agreed on and
the laws and customs of the same?" The king or queen shall say: " I
solemnly promise so to do." Archbishop or bishop. " Will you to your
power cause law and justice in mercy to be executed in all your judg-
ments?" King or queen. "I will." Archbishop or bishop. "Will you
to the utmost of your power maintain the laws of God, the true profes-
sion of the gospel, and the Protestant Reformed religion established by
the law? And will you preserve unto the bishops and clergy of this
realm, and to the churches committed to their charge, all such rights
and privileges as by law do or shall appertain unto them or any of them?"
King or queen. m "A\l this I promise to do." After this the king or queen,
laying his or her hand upon the holy gospels, shall say: " The things which
I have here before promised I will perform and keep, so help me God,"
and then shall kiss the book.
CHAP. VII.] OF THE KING'S PREROGATIVE. 55
CHAPTER VII.
OF THE KING'S PREROGATIVE.
By the word prerogative we usually understand that special pre-emi-
nence which the king hath over and above all other persons, and out of
the ordinary course of the common law, in right of his regal dignity.
It signifies in its etymology (from prae and rogo) something that is re-
quired or demanded before or in preference to all others. [239]
Prerogatives are either direct or incidental. The direct are such posi-
tive, substantial parts of the royal character and authority as are rooted
in and spring from the king's political person, considered merely by it-
self, without reference to any other extrinsic circumstance, as the right
of sending ambassadors, of creating peers, and of making war or
peace. [240] But such prerogatives as are incidental bear always a rela-
tion to something else distinct from the king's person, and are indeed
only exceptions in favor of the crown to those general rules that are es-
tablished for the rest of the community, such as that no costs shall be
recovered against the king; that the king can never be a joint-tenant;
and that his debt shall be preferred before a debt to any of his subjects.
We will at present only dwell upon the king's substantive or direct
prerogatives.
These substantive or direct prerogatives may again be divided into
three kinds: being such as regard, first, the king's royal character; sec-
ondly, his royal authority; and lastly, his royal income. These are neces-
sary to secure reverence to his person, obedience to his commands, and
an affluent supply for the ordinary expenses of government.
In the present chapter we shall only consider the two first of these
divisions, which relate to the king's political character and authority;
or, in other words, his dignity and regal power; to which last the name
of prerogative is frequently narrowed and confined. [241]
First, then, of the royal dignity.
I. And first, the law ascribes to the king the attribute
of sovereignty, or pre-eminence.
Hence it is that no suit or action can be brought against
the king, even in civil matters, because no court can have
jurisdiction over him. For all jurisdiction implies superi-
ority of power. 1 [242]
1. No action can be brought against as prescribed by statute or constitu-
the United States or a state except tion.
56 OF THE KING'S PREROGATIVE. [BooK I.
Hence it is likewise, that by law the person of the king is sacred, even
though the measures pursued in his reign be completely tyrannical and
arbitrary, for no jurisdiction upon earth has power to try him in a
criminal way, much less to condemn him to punishment.
Are then, it may be asked, the subjects of England totally destitute of
remedy in case the crown should invade their rights, either by private
injuries or public oppressions? [243] To this we may answer, that the
law has provided a remedy in both cases.
And first, as to private injuries: if any person has, in point of property,
a just demand upon the king, he must petition him in his court of chan-
cery, where his chancellor will administer right as a matter of grace,
though not upon compulsion.
Ifext, as to cases of ordinary public oppression, where the vitals of the
constitution are not attacked, the law hath also assigned a remedy. [244J
For as a king cannot misuse his power without the advice of evil coun-
sellors, and the assistance of wicked ministers, these men may be ex-
amined and punished. The constitution has therefore provided, by means
of indictments and parliamentary impeachments, that no man shall dare
to assist the crown in contradiction to the laws of the land. The sup-
position of law is, that neither the king nor either house of parliament,
collectively taken, is capable of doing any wrong, since in such cases
the law feels itself incapable of furnishing any adequate remedy. [245J
For which reason all oppressions which may happen to spring from any
branch of the sovereign power must necessarily be out of the reach of any
stated rule or express legal provision; but if ever they unfortunately hap-
pen, the prudence of the times must provide new remedies upon new
emergencies.
II. Besides the attribute of sovereignty, the law also ascribes to the
king, in his political capacity, absolute perfection. [246] The king can do
no wrong: which ancient and fundamental maxim is not to be under-
stood as if everything transacted by the government was of course just
and lawful, but means only two things. First, that whatever is excep-
tionable in the conduct of public affairs is not to be imputed to the king,
nor is he answerable for it personally to his people. And, secondly, it
means that the prerogative of the crown extends not to do any injury,
it is created for the benefit of the people, and therefore cannot be ex-
erted to their prejudice.
The king, moreover, is not only incapable of doing wrong, but even of
thinking wrong; he can never mean to do an improper thing; in him
is no folly or weakness. And, therefore if the crown should be induced
to grant any franchise or privilege to a subject contrary to reason, or in
any wise prejudicial to the commonwealth or a private person, the law
will not suppose the king to have meant either an unwise or an injurious
action, but declares that the king was deceived in his grant, and there-
upon such grant is rendered void, merely upon the foundation of fraud
CHAP. VII.] OF THE KING'S PREROGATIVE. 57
and deception, either by or upon those agents whom the crown has
thought proper to employ.
In farther pursuance of this principle, the law also de-
terminates that in the king can be no negligence or lashes,
and therefore no delay will bar his right. Nullum tempus
occurrit rcgi 2 has been the standing maxim" upon all
occasions.
In the king also can be no stain or corruption of blood; for if the heir
to the crown were attainted of treason or felony, and afterwards the
crown should descend to him, this would purge the attainder ipso facto.
[248] Neither can the king in judgment of law, as king, ever be a minor
or under age, and therefore his royal grants and assents to acts of par-
liament are good, though he has not in his natural capacity attained the
legal age of twenty-one. It hath also been usually thought prudent,
when the heir apparent has been very young, to appoint a protector,
guardian, or regent for a limited time. But the very necessity of such
extraordinary provision is sufficient to demonstrate the truth of that
maxim of the common law, that in the king is no minority, and therefore
he hath no legal guardian.
III. A third attribute of the king's majesty is his perpetuity. The law
ascribes to him in his political capacity an absolute immortality. The
king never dies. [249] Henry, Edward, or George may die, .but the king
survives them all. For immediately upon the decease of the reigning
prince in his natural capacity, his kingship or imperial dignity, by act
of law, without any interregnum or interval, is vested at once in his heir,
who is, co instanti, king to all intents and purposes.
We are next to consider those branches of the royal prerogative which
invest thus our sovereign lord, thus all-perfect and immortal in his
kingly capacity, with a number of authorities and powers, in the exer-
tion whereof consists the executive part of government. [250] The king
of England is not only the chief, but properly the sole, magistrate of the
nation, all others acting by commission from and in due subordination
to him. In the exertion of lawful prerogative the king is and ought to
be absolute; that is, so far absolute that there is no legal authority that
can either delay or resist him. He may reject what bills [now obsolete],
may make what treaties, may coin what money, may create what peers,
may pardon what offences he pleases, unless where the constitution
hath expressly, or by evident consequence, laid down some exception or
boundary, declaring that thus far the prerogative shall go, and no farther.
2. No time bars the king. In this any statute of limitations unless in-
country the state is not barred by eluded therein by express words.
58 OF THE KING'S PRER6aATivE. [BOOK I.
In the exertion, therefore, of those prerogatives which the law has
given, the king is irresistible and absolute, according to the forms of
the constitution. And yet, if the consequence of that exertion be mani-
festly to the grievance or dishonor of the kingdom, the parliament will
call his advisers to a just and severe account. [252]
The prerogatives of the crown (in the sense under which
we are now considering them) respect either this nation's
intercourse with foreign nations, or its own domestic gov-
ernment and civil polity.
With regard to foreign concerns, the king is the delegate
or representative of his people. What is done by the royal
authority, with regard to foreign powers, is the act of the
whole nation; what is done without the king's concurrence
is the act only of private men.
I. The king, therefore, considered as the representative
of. his people, has the sole power of sending ambassadors
to foreign states and receiving ambassadors at home. 3 [253]
The rights, the powers, the duties, and the privileges of
ambassadors are determined by the law of nature and na-
tions, and not by any municipal constitutions. For, as they
represent the persons of their respective masters, who owe
no subjection to any laws but those of their own country,
their actions are not subject to the control of the private
law of that state wherein they are appointed to reside. If
they grossly offend, or make an ill use of their character,
they may be sent home and accused before their master,
who is bound either to do justice upon them or avow him-
self the accomplice of their crimes. As to whether this ex-
emption of ambassadors extends to all crimes, as well
natural as positive, or whether it only extends to such as
are mala prohibita, as coining, and not to those that are
mala in se, as murder, the general practice of this country,
as well as of the rest of Europe, seems now to be, that the
security of ambassadors is of more importance than the
punishment of a particular crime. 4 [254]
3. The U. S. constitution provides, appoint ambassadors, other public
art. 2, sec. 2, that the president ministers, and consuls." See Wilson's
"shall nominate and by and with the Int. Law, 162 et seq.
advice and consent of the senate, shall 4. Wilson's Int. Law, 169, 170.
CHAP. VII.] OF THE KING'S PREROGATIVE. 59
In respect to civil suits, all the foreign jurists agree that
neither an ambassador, nor any of his train or comites, can
be prosecuted for any debt or contract in the courts of that
kingdom wherein he is sent to reside. 5
II. It is also the king's prerogative to make treaties,
leagues, and alliances with foreign states and princes. 6
[257] For it is by the law of nations essential to the good-
ness of a league that it be made by the sovereign power,
and then it is binding upon the whole community; and in
England the sovereign power, quoad hoc, is vested in the
person of the king.
III. Upon the same principle the king has also the sole
prerogative of making war and peace. 7 So that, in order
to make a war completely effectual, it is necessary with us
in England that it be publicly declared and duly proclaimed
by the king's authority; and then all parts of both the con-
tending nations, from the highest to the lowest, are bound
by it. [258] And wherever the right resides of beginning
a national war, there also must reside the right of ending
it, or the power of making peace.
IV. But as the delay of making war may sometimes be detrimental to
Individuals who have suffered by depredations from foreign potentates,
our laws have in some respects armed the subject with powers to impel
the prerogative, by directing the ministers of the crown to issue letters
of marque and reprisal upon due demand, the prerogative of granting
which is nearly related to, and plainly derived from, that other of mak-
ing war, this being indeed only an incomplete state of hostilities, and
generally ending in a formal declaration of war. These letters are grant-
able by the law of nations whenever the subjects of one state are op-
pressed and injured by those of another, and justice is denied by that
state to which the oppressor belongs. In this case letters of marque and
reprisal (words used as synonymous, and signifying, the latter a taking
in return, the former the passing the frontiers in order to such taking)
may be obtained, in order to seize the bodies or goods of the subjects of
5. Wilson's Int. Law, 170. ators present consent." U. S. Const.,
6. ''He [the president] shall have art. 2, sec. 2; Wilson's Int. Law, 194.
power by and with the advice and 7. In the United States Congress
consent of the senate to make trea- alone has the power to declare war.
ties, provided two-thirds of the sen- U. S. Const., art. 1, sec. 8, cl. 11.
A wise and most salutary provision.
CO OF THE KING'S PREROGATIVE. [BOOK I.
the offending state, until satisfaction be made, wherever they happen to
,be found. 8 [259]
V. Upon exactly the same reason stands tbe prerogative of granting
safe-conducts, without which by the law of nations no member of one
society has a right to intrude into another. It is left in the power of all
states to take such measures about the admission of strangers as they
think convenient, those being ever excepted who are driven on the coasts
by necessity, or by any cause that deserves pity or compassion. Great
tenderness is shown by our laws, not only to foreigners in distress, but
with regard also to the admission of strangers who come spontaneously.
For so long as their nation continues at peace with ours, and they them-
selves behave peaceably, they are under the kinc's protection, though
liable to be sent home whenever the king sees occasion. [260] But no
subject of a nation at war with us can, by the law of nations, come into
the realm, nor can travel himself upon the high seas, or send his goods
and merchandise from one place to another, without danger of being
seized by our subjects, unless he has letters of safe-conduct, which by
divers ancient statutes must be granted under the king's great seal and
enrolled in chancery, or else are of no effect, the king being supposed
the best judge of such emergencies as may deserve exception from the
general law of arms. But passports under the king's sign-manual, or
licenses from his ambassadors abroad, are now more usually obtained,
and are allowed to be of equal validity.
These are the principal prerogatives of the king respecting this nation's
intercourse with foreign nations. But in domestic affairs he is con-
sidered in a great. variety of characters, and from thence there arises an
abundant number of other prerogatives.
I. First, he is a constituent part of the supreme legislative power, and,
as such, has the prerogative of rejecting such provisions in parliament
as he judges improper to be passed. [Now obsolete.] The king is not
bound by any act of parliament unless he be named therein by special
and particular words. The most general words that can be devised
<" any person or persons, bodies politic, or corporate," &c.) affect not
him in the least, if they may tend to restrain or diminish any of his
rights or interests. [262] Yet, where an act of parliament is expressly
made for the preservation of public rights and the suppression of public
wrongs, and does not interfere with the established rights of the crown,
it is said to be binding as well upon the king as upon the subject; and,
likewise, the king may take the benefit of any particular act, though he
be not especially named.
II. The king is considered as the generalissimo, or the first in military
command, \vithin the kingdom. 9 In this capacity, therefore, of general
8. By the Const, of the U. S., art. of marque and reprisal. This power
1, 10, no state shall grant letters is vested in Congress, art. 1, 8.
9. See U. S. Const., art. 2, 2.
CHAP. VIL] OF THE KING'S PREROGATIVE. 61
of the kingdom, the king has the sole power of raising and regulating
fleets and armies.
It is partly upon the same, and partly upon a fiscal foundation, to se-
cure his marine revenue, that the king has the prerogative of appointing
ports and havens, or such places only, for persons and merchandise- to
pass into and out of the realm, as he in his wisdom sees proper. [264]
The erection of beacons, lighthouses, and sea-marks is also a branch
of the royal prerogative.
To this branch of the prerogative may also be referred the p\>wer
vested in his Majesty, by statutes 12 Car. II. c. 4, and 29, Geo. II. c. 16,
of prohibiting the exportation of arms or ammunition out of this king-
dom, under severe penalties; and likewise the right which the king has,
whenever he sees proper, of confining his subjects to stay within the
realm, or of recalling them when beyond the seas. [265] By the com-
mon law every man may go out of the realm for whatever cause he
pleaseth, without obtaining the king's leave, provided he is under no in-
junction of staying at home. And at present everybody has, or at least
assumes, the liberty of going abroad when he pleases. [266] Yet un-
doubtedly if the king, by writ of ne exeat regnum, under his great seal
or privy seal, thinks proper to prohibit him from so doing, or if the king
sends a writ to any man, when abroad, commanding his return, and in
either case the subject disobeys, it is a high contempt of the king's pre-
rogative.
III. Another capacity, In which the king is considered in domestic
affairs, is as the foundation of justice and general conservator of the
peace of the kingdom. By the fountain of justice, the law does not mean
the author or original, but only the distributor. Justice is not derived
from the king as from his free gift, but he is the steward of the publio
to dispense it to whom it is due. He is not the spring, but the reservoir
from whence right and equity are conducted by a thousand channels to
every individual. He has alone the right of erecting courts of judicature;
for, though the constitution of the kingdom hath intrusted him with the
whole executive power of the laws, it is 'impossible, as well as improper,
that he should personally carry into execution this great and extensive
trust; it is consequently necessary that courts should be erected to as-
sist him in executing this power, and equally necessary that, if erected,
they should be erected by his authority. [267] And hence it is, that all
jurisdictions of courts are either mediately or immediately derived from
the crown, their proceedings run generally in the king's name, they pass
under his seal, and are executed by his officers.
It is probable, and almost certain, that in very early times, before our
constitution arrived at its full perfection, our kings in person often heard
and determined causes between party and party. But at present, by the
long and uniform usage of many ages, our kings have delegated their
whole judicial power to the judges of their several courts, which are the
grand depositaries of the fundamental laws of the kingdom and have
gained a known and stated jurisdiction, regulated by certain and estab-
62 OF THE KING'S PJIEKOGATIVE. [BOOK I.
lished rules, which the crown itself cannot now alter but by act of parlia-
ment.
And in order to maintain both the dignity and independ-
ence of the judges in the superior courts, it is enacted by the
statute 13 W. III. c. 2, that their commissions shall be made
(not, as formerly, durante bcne placito, 1 but) quamdiu bene
se gesserint, 2 and their salaries ascertained and established,
but that it. may be lawful to remove them on the address
of both houses of parliament. And now, by the noble im-
provements of that law, in the statute of 1 Geo. III. c. 23,
enacted at the earnest recommendation of the king himself
from the throne, the judges are continued in their offices
during their good behavior, notwithstanding any demise
of the crown (which was formerly held immediately to
vacate their seats), and their full salaries are absolutely
secured to them during the continuance of their commis-
sions. 3 [268]
In criminal proceedings, or prosecutions for offenses, it would still be
a higher absurdity if the king personally sat in judgment, because, in
regard to these, he appears in another capacity, that of prosecutor. All
offences are either against the king's peace or his crown and dignity,
and are so laid in every indictment. And hence also arises another
branch of the prerogative, that of pardoning offences; for it is reasonable
that he only who is injured should have the power of forgiving. 4 [269]
A consequence of this prerogative is the legal ubiquity of (he king.
[270] His Majesty in the eye of the law is always present in all his
courts, though he cannot personally distribute justice. And from this
ubiquity it follows that the king can never be nonsuit, for a nonsuit is
the desertion of the suit or action by the non-appearance of the plaintiff
in court. For the same reason also, in the forms of legal proceedings,
the king is not said to appear by his attorney as other men do, for in con-
templation of law he is always present in court.
From the same original, of the king's being the foundation of justice,
1. At will (of the king). 4. The pardoning power, with us
2. During good behavior. is vested in the president of the
3. In the Federal Courts and in United States and in the governors
Massachusetts the judges hold during of the several states. See Cooley'a
good behavior; but in other states, Const. Lim., *115, 116, and notes,
they are elected for varying terms of
years.
CHAP. VII.] OF THE KING'S PREROGATIVE. 63
we may also deduce the prerogative of issuing proclamations, which is
vested in the king alone. These proclamations have then a binding force
when they are grounded upon and enforce the laws of the realm. For
though the making of laws is entirely the work of a distinct part, the
legislative branch, of the sovereign power, yet the manner, time, and
circumstances of putting those laws in execution must frequently be left
to the discretion of the executive magistrate. And therefore his consti-
tutions or edicts concerning these points, which we call proclamations,
are binding upon the subjects where they do not either contradict the old
laws or tend to establish new ones, but only enforce the execution of
such laws as are already in being in such manner as the king shall
judge necessary.
IV. The king is likewise the fountain of honor, of office, and of privilege,
and this in a different sense from that wherein he is styled the fountain
of justice, for here he is really the parent of them. [271] All degrees of
nobility, of knighthood, and other titles, are received by immediate grant
from the crown; either expressed in writing by writs or letters-patent, as
in the creations of peers and baronets, or by corporeal investiture, as in
the creation of a simple knight. [272]
From the same principle also arises the prerogative of erecting and
disposing of offices, for honors and offices are in their nature convertible
and synonymous. As the king may create new titles, so may he create
new offices; but with this restriction, that he cannot create new offices
with new fees annexed to them, nor annex new fees to old offices, for
this would be a tax upon the subject, which cannot be imposed but by
act of parliament.
Upon the same or a like reason the king has also the prerogative of con-
ferring privileges upon private persons. Such as granting place of pre-
cedence to any of his subjects as shall seem good to his royal wisdom, or
such as converting aliens, or persons born out of the king's dominions,
into denizens. Such also is the prerogative of erecting corporations [no
longer used].
V. Another light in which the laws of England consider the king with
regard to domestic concerns is as the arbiter of commerce. [273] By
commerce I at present mean domestic commerce only.
With us in England the king's prerogative, so far as it relates to mere
domestic commerce, will fall principally under the following ar-
ticles: [274]
First, the establishment of public marts, or places of buying and sell-
ing, such as markets and fairs, with the tolls thereunto belonging. These
can only be set up by virtue of the king's grant or by long and immemorial
usage and prescription, which presupposes such a grant.
Secondly, the regulation of weights and measures. 5
5. In England this power is exer- States it belongs to Congress. Const,
cised by parliament. In the United U. S., art. 1, 8.
64 OF THE KING'S PREROGATIVE. [BOOK I.
Thirdly, as money is the medium of commerce, it is the king's preroga-
tive, as the arbiter of domestic commerce, to give it authority or make
it current 5 [276]
The coining of money is in all states tiie act of the sovereign power,
that its value may be known on inspection. [277] And with respect to
coinage in general, there are three things to be considered therein: the
materials, the impression, and the denomination.
With regard to the materials, Sir Edward Coke lays it down that the
money of England must either be of gold or silver; and none other was
ever issued by the royal authority till 1672, when copper farthings and
halfpence were coined by King Charles the Second, and ordered by
proclamation to be current in all payments under the value of sixpence,
and not otherwise.
As to the impression, the stamping thereof is the unquestionable pre-
rogative of the crown.
The denomination, or the value for which the coin is to pass current,
is likewise in the breast of the king, and if any unusual pieces are
coined, that value must be ascertained by proclamation. [278] In order
to fix the value, the weight and the fineness of the metal are to be taken
into consideration together. When a given weight of gold or silver is of a
given fineness, it is then of the true standard, and called esterling or sterl-
ing metal. And of this sterling or esterling metal all the coin of the king-
dom must be made, by the statute 25 Edw. III. c. 13. So that the king's
prerogative seemeth not to extend to the debasing or enhancing the value
of the coin, below or above the sterling value, though Sir Matthew Hale
appears to be of another opinion.
The king may also, by his proclamation, legitimate foreign coin, and
make it current here, declaring at what value it shall be taken in pay-
ments. But this, I apprehend, ought to be by comparison with the stand-
ard of our own coin; otherwise the consent of parliament will be neces-
sary. The king may also at any time decry, or cry down, any coin of
the kingdom, and make it no longer current.
VI. The king is, lastly, considered by the laws of England as the head
and supreme governor of the national church. 7
In virtue of this authority the king convenes, prorogues, restrains,
regulates, and dissolves all ecclesiastical synods or convocations. [279]
From this prerogative also, of being the head of the church, arises the
king's right of nomination to vacant bishoprics and certain other ecclesi-
astical preferments.
As head of the church, the king is likewise the dernier ressort in all
ecclesiastical causes, an appeal lying ultimately to him in chancery [to
the judicial committee of the privy council] from the sentence of every
ecclesiastical judge.
6. See U. S. Const., art. 1, 8. 7. See U. S. Const. Amend., art. 1.
CHAP. VIIL] OF THE KING'S REVENUE. 65
CHAPTER VIIL
OF THE KING'S REVENUE.
[As to the subjects of the custody of bishop's temporalities upon the
vacancy of the bishopric [282], corodies [283], tithes extra-parochial,
first-fruits and tenths [284], profits of crown lands [286], puryeyance
and pre-emption [287], wine licenses [288], profits from the king's forests
and profits from the king's ordinary courts of justice 8 [289], royal fish
[290], deoda.nds (abolished by statute Sept. 1, 1846) [300], the student
is referred to the original text and to 1 Broom & Had. Com. *377 et seq.]
[As to wrecks, which by the ancient common law were where any ship
was lost at sea and the goods or cargo were thrown upon land, and
which were anciently a branch of the king's maritime revenue, it was
held that] not only if any live thing escape, but if proof can be made
of the property of any of the goods or lading which come to shore, they
shall not be forfeited as wreck. [292] The statute [of Westminster the
first] further ordains, that the sheriff of the county shall be bound to
keep the goods a year and a day, that if any man can prove a property
in them, either in his own right or by right of representation, they shall
be restored to him without delay; but, if no such property be proved
within that time, they then shall be the king's. If the goods are of a
perishable nature, the sheriff may sell them, and the money shall be
liable in their stead.
In order to constitute a legal wreck the goods must come to land. If
they continue at sea, the law distinguishes them by the barbarous and
uncouth appellations of jetsam, flotsam, and ligan. Jetsam is where goods
are cast into the sea, and there sink and remain under water; flotsam is
where they continue swimming on the surface of the waves; ligan is
where they are sunk in the sea, but tied to a cork or buoy, in order to
be found again. These are also the king's, if no owner appears to claim
them; but if any owner appears, he is entitled to recover the possession.
For, even if they be cast overboard without any mark or buoy, in order
to lighten the ship, the owner is not by this act of necessity construed
to have renounced his property; much less can things ligan be supposed
to be abandoned, since the owner has done all in his power to assert
and retain his property. These three are therefore accounted so far a
distinct thing from the former, that by the king's grant to a man of
wrecks, things jetsam, flotsam, and ligan will not pass. [293]
By the statute 27 Edw. III. c. 13, if any ship be lost on the shore, and
the goods come to land (which cannot, says the statute, be called wreck),
they shall be presently delivered to the merchants, paying only a rea-
8. Costs of suit are assessed against
the losing party at law with us, but
only where authorized by statute.
5
66 OF THE KING'S REVENUE. [BOOK I.
Eonable reward to those that saved and preserved them, which is en-
titled salvage. And by the common law, if any persons (other than the
sheriff) take any goods so cast on shore, which are not legal wreck, the
owners might have a commission to inquire and find them out, and com-
pel them to make restitution. 8 *
XII. A twelfth branch of the royal revenue, the rifcht to mines. 9 has
its original from the king's prerogative of coinage, in order to supply
him with materials; and therefore those mines which are properly royal,
and to which the king is entitled when found, are only those of silver
and gold. [294] By the old common law, if gold or silver be found in
mines of base metal, according to the opinion of some the whole was a
royal mine, and belonged to the king; though others held that it only
did so if the quantity of gold or silver was of greater value than the
quantity of base metal. But now by the statutes 1 W. and M. st. 1. c.
30, and 5 W. and M. c. 6, this difference is made immaterial, it being
enacted that no mines of copper, tin, iron, or lead shall be looked upon
as royal mines, notwithstanding gold or silver may be extracted from
them in any quantities; but that the king, or persons claiming royal
mines under his authority, may have the ore (other than tin-ore in the
counties of Devon and Cornwall), paying for the same a price stated in
the act. [295]
XIII. To the same original may in part be referred the revenue of
treasure-trove, called in Latin thesaurus inventus, which is where any
money or coin, gold, silver, plate, or bullion, is found hidden in the earth,
or other private place, the owner thereof being unknown, in which case
the treasure belongs to the king; but if he that hid it be known, or after-
wards found out, the owner, and not the king, is entitled to it. Also if
it be found in the sea, or upon the earth, it doth not belong to the king,
but the finder, if no owner appears. So that it seems it is the hiding, and
not the abandoning of it, that gives the king a property. 1
XIV. Waifs, bona waviata, are goods stolen and waived or thrown away
by the thief in his flight for fear of being apprehended. [296] These are
given to the king by the law as a punishment upon the owner for not
himself pursuing the felon and taking away his goods from him. 2 And
therefore, if the party robbed do his diligence immediately to follow and
8a. For the English statute upon to such regulation as may be made by
this subject, see 1 Broom & Had. Com., statute. See 2 Kent Com., 357; 2
*364 ft seq. See, also, 4 U. S. Stats. Schoul. Pars. Prop., 9. See, also, the
at Large, 115. leading case of Armory v. Delamire,
9. See Plowd, 336; Stoakes v. Bar- 1 Strange, 504; 1 Smith Lead Cases,
rett, 5 Cal. 36; Moore v. Shaw, 17 *470 and notes; Haslem v. Lockwood,
Cal. 199. 37 Conn. 500.
1. Completely abandoned or dere- 2. Not the rule in the United
lict property may be appropriated by States. The larceny does not change
those first taking it, subject, however, the title.
CHAP. VIII.] OF THE KING'S REVENUE. 67
apprehend the thief (which is called making fresh suit), or do convict
him afterwards or procure evidence to convict him, he shall have his
goods again. [297] Waived goods do also not belong to the king till
seized by somebody for his use; for if the party robbed can seize them
first, though at the distance of twenty years, the king shall never have
them. If the goods are hid by the thief, or left anywhere by him so that
he had them not about him when he fled, and therefore did not throw them
away in his flight, these also are not bona waviata, but the owner may
have them again when he pleases. The goods of a foreign merchant,
though stolen and thrown away in flight, shall never be waifs: the rea-
son whereof may be not only for the encouragement of trade, but also
because there is no wilful default in the foreign merchant's not pursuing
the thief, he being generally a stranger to our laws, our usages, and our
language.
XV. Estrays are such Taluable animals as are found wandering in any
manor or lordship, and no man knoweth the owner of them, in which
case the law gives them to the king as the general owner and lord para-
mount of the soil in recompense for the damage which they may have
done therein, and they now most commonly belong to the lord of the
manor by special grant from the crown. 3 Any beasts may be estrays that
are by nature tame or reclaimable, and in which there is a valuable
property, as sheep, oxen, swine, and horses, which we in general call
cattle. [298] For animals upon which the law sets no value, as a dog or
cat, and animals ferae naturae, as a bear or wolf, cannot be considered
as estrays. So swans may be estrays, but not any other fowl; whence
they are said to be royal fowl. He that takes an estray is bound so long
as he keeps it to find it in provisions and preserve it from damage, and
may not use it by way of labor, but is liable to an action for so doing.
Ye-t he may milk a cow or the like, for that tends to the preservation and
is for the benefit of the animal.
[299] XVI. Forfeitures of lands and goods for offences; bona confiscata,
as they are called by the civilians, because they belong to the fiscus or
imperial treasury; or, as our lawyers term them, forisfacla; that is, such
whereof the property is gone away or departed from the owner. The
true reason and only substantial ground of any forfeiture for crimes
consist in this; that all property is derived from society, being one of
those civil rights which are conferred upon individuals, in exchange for
that degree of natural freedom which every man must sacrifice when
he enters into social communities. If therefore a member of any na-
tional community violates the fundamental contract of his association,
by transgressing the municipal law, he forfeits his right to such privi-
leges as he claims by that contract; and the state may very justly re-
sume that portion of property, or any part of it, which the laws have
before assigned him. Hence, in every offence of an atrocious kind, the
3. A matter of statutory regulation in the United States.
68 OF THE KING'S REVENUE. [BOOK I.
laws of England have exacted a total confiscation of the moveables or
personal estate; and in many cases a perpetual, in others only a tem-
porary, loss of the offender's immoveables or landed property; and have
vested them both in the king, who is the person supposed to be offended,
being the one visible magistrate in whom the majesty of the public re-
sides. The particulars of these forfeitures will be more properly re-
cited when we treat of crimes and misdemeanors. 4
XVII. Another branch of the king's ordinary revenue arises from
escheats of lands, which happen upon the defect of heirs to succeed to
the inheritance, whereupon they in general revert to and vest in the
king, who is esteemed in the eye of the law the original proprietor of
all the lands in the kingdom. 5 [302]
XVIII. The eighteenth and last branch of the king's ordinary revenue
consists in the custody of idiots, from whence we shall be naturally led
to consider also the custody of lunatics.
An idiot or natural fool is one that hath had no understanding from his
nativity, and therefore is by law presumed never likely to attain any. For
which reason the custody of him and of his lands was formerly vested in
the lord of the fee, but, by reason of the manifold abuses of this power
by subjects, it was at last provided by common consent that it should
be given to the king, as the general conservator of his people, in order
to prevent the idiot from wasting his estate and reducing himself and his
heirs to poverty and distress. [303] This fiscal prerogative of the king
is declared in parliament by statute 17 Edw. II. c. 9, which directs (in
affirmance of the common law) that the king shall have ward of the
lands of natural fools, taking the profits without waste or destruction,
and shall find them necessaries; and after the death of such idiots he
shall render the estate to the heirs, in order to prevent such idiots from
aliening their lands and their heirs from being disinherited. 6 By the old
common law there is a writ de idiota inquirendo to inquire whether a
man be an idiot or not, which must be tried by a jury of twelve men.
A man is not an idiot if he hath any glimmering of reason, so that he
can tell his parents, his age, or the like common matters. [304] But a
man who is born deaf, dumb, and blind, is looked upon by the law as
in the same state with an idiot. [Not now the law.]
A lunatic or non compos mentis is one who hath had understanding,
but by disease, grief, or other accident, hath lost the use of his reason.
A lunatic is indeed properly one that hath lucid intervals, sometimes en-
4. See Book 4. cised by courts of chancery. It is,
5. See escheats under the head real however, usually regulated by statute,
property, post. See generally Adams Equity, ch. 6
6. In the United States, where not and notes; Eyre v. Countess of
otherwise prescribed by statute, thia Shaftsbury, 2 White & Tudor's Lead,
jurisdiction together with that over Cas. Eq., p. i, *693 and notes; Dodge
infants and lunatics, is usually exer- v. Cole, 97 111. 338.
CHAP. VIII.] OF THE KING'S REVENUE. 69
joying his senses and sometimes not. But under the general name of
non compos mentis ^ (which Sir Edward Coke says is the most legal name)
are comprised not only lunatics, but persons under frenzies, or who lose
their intellects by disease, those that grow deaf, dumb, and blind [obso-
lete], not being born so; or such, in short, as are judged by the court
of chancery incapable of conducting their own affairs. To these, also,
as well as idiots, the king is guardian, but to a very different purpose.
For the law always imagines that these accidental misfortunes may be
removed, and therefore only constitutes the crown a trustee for the un-
fortunate persons, to protect their property and to account to them for
all profits received if they recover, or, after their decease, to their repre-
sentatives. 8
On the first attack of lunacy or other occasional insanity, while there
may be hope of a speedy restitution of reason, it is usual to confine the
unhappy objects in private custody under the direction of their nearest
friends and relations. [305] But when the disorder is grown permanent,
and the circumstances of the party will bear such additional expense, it
is proper to apply to the royal authority to warrant a lasting confine-
ment.
The method of proving a person non compos is very similar to that
of proving him an idiot. The Lord Chancellor, to whom by special au-
thority from the king the custody of idiots and lunatics is intrusted,
upon petition or information grants a commission in nature of the writ
de idiota inquirendo 9 to inquire into the party's state of mind, and if he
be found non compos he usually commits the care of his person, with a
suitable allowance for his maintenance, to some friend, which is then
called his committee. However, to prevent sinister practices, the next
heir is seldom permitted to be this committee of the person [personal
fitness for the office now determines the appointment of the committee,
toth of the person and estate], because it is his interest that the party
should die. But it hath been said there lies not the same objection
against his next of kin, provided he be not his heir, for it is his interest
to preserve the lunatic's life, in order to increase the personal estate
by savings which he or his family may hereafter be entitled to enjoy.
The heir is generally made the manager or committee of the estate, it
being clearly his interest by good management to keep it in condition,
accountable, however, to the court of chancery, and to the non compos
himself if he recovers, or otherwise to his administrators. 1 With us,
when a man on an inquest of idiocy hath been returned an unthrift and
not an idiot, no farther proceedings have been had. [306]
7. Not of sound mind. local statutes. The disabilities of in-
8. See note 3, supra. fancy, coverture, insanity, etc., will
9. Of inquiry concerning an idiot. be considered under the subjects of
1. Regulated by statute in the contracts, criminal law, etc.
United States. Always consult the
70 OF THE KINO'S REVENUE. [BOOK I.
Extraordinary grants are usually called by the synonymous names of
aids, subsidies, and supplies, and are granted by the Commons of Great
Britain in parliament assembled, who, when they have voted a supply
to his Majesty and settled the quantum of that supply, usually resolve
themselves into what is called a Committee of Ways and Means, to con-
sider the ways and means of raising the supply so voted. [307]
[As to the land tax [308], the malt tax [313], income tax, customs
[313], excise duty [318], the revenue from the post office [321], stamp
duties [323], the duty upon houses and windows [324], the duty upon
offices and pensions [326], licenses, &c., the student, besides the refer-
ences to the author, is referred to 1 Broom & Had. Com. *368 et seq.,
and to the English Statutes at Large.]
CHAP. IX.] OF SUBORDINATE MAGISTRATES. 71
CHAPTEK IX.
OF SUBORDINATE MAGISTRATES.
The magistrates and officers, whose rights and duties it
will be proper in this chapter to consider, are such as are
generally in use and have a jurisdiction and authority dis-
persedly throughout the kingdom, which are principally
sheriffs, coroners, justices of the peace, constables, survey-
ors of highways, and overseers of the poor. [339]
I. The sheriff is an officer of very great antiquity in this
kingdom, his name being derived from two Saxon words,
signifying the reeve, bailiff, or officer of the shire. He is
called in Latin vice-comes, as being the deputy of the earl
or comes, to whom the custody of the shire is said to have
been committed at the first division of this kingdom into
counties. But the earls in process of time, by reason of
their high employments and attendance on the king's per-
son, not being able to transact the business of the county,
were delivered of that burden, reserving to themselves the
honor, but the labor was laid on the sheriff. So that now
the sheriff does all the king's business in the county, and,
though he be still called vice-comes, yet he is entirely inde-
pendent of, and not subject to, the earl, the king by his
letters-patent committing custodiam comitatus 1 to the
sheriff, and him alone.
The power and duty of the sheriff are either as a judge,
as the keeper of the king's peace, as a ministerial officer
of the superior courts of justice, or as the king's bailiff.
In his judicial capacity he is to hear and determine all causes of forty
shillings value and under in his county court, and he has also a judicial
power in divers other civil cases. He is likewise to decide the elections
of knights of the shire (subject to the control of the House of Com-
mons), of coroners, and of verderors; to judge of the qualification of
voters, and to return such as he shall determine to be duly elected. 2
1. The custody of the county. much changed by statute. See 1
a. His judicial powers have been Broom & Had. Com., 409. He is usu-
72 OF SUBORDINATE MAGISTRATES. [BOOK I.
As the keeper of the king's peace, both by common law
and special commission, he is the first man in the county.
He may apprehend and commit to prison all persons who-
break the peace or attempt to break it, and may bind any
one in a recognizance to keep the king's peace. He may
and is bound ex offlcio to pursue and take all traitors, mur-
derers, felons, and other misdoers, and commit them to jail
for safe custody. He is also to defend his county against
any of the king's enemies when they come into the land;
and for this purpose, as well as for keeping the peace and
pursuing felons, he may command all the people of his
county to attend him, which is called the posse comitatus,
or power of the county; 3 and this summons every person
above fifteen years old and under the degree of a peer is
bound to attend upon warning, under pain of fine and im-
prisonment. [344] But though the sheriff is thus the prin-
cipal conservator of the peace in his county, yet by the
express directions of the Great Charter he, together with
the constable, coroner, and certain other officers of the king,
are forbidden to hold any pleas of the crown, or, in other
words, to try any criminal offence.
In his ministerial capacity the sheriff is bound to execute
all process issuing from the king's courts of justice. In the
commencement of civil causes he is to serve the writ, to
arrest, and to take bail; when the cause comes to trial he
must summon and return the jury; when it is determined
he must see the judgment of the court carried into execu-
tion. In criminal matters he also arrests and imprisons, he
returns the jury, he has the custody of the delinquent, and
he executes the sentence of the court, though it extend to
death itself. 4
ally given no judicial power in the States marshal is the executive officer
United States, except in some states of the court. This is, however, an
the execution of writs of inquiry appointive office.
upon defaults, i. e., the assessment of 4. The duties of the sheriff are in
damages, etc. substance the same in the United
3. He has the same authority in States except so far as changed by
the several states. The office is elec- statute,
tive. In the federal courts the United
CHAP. IX.] OF SUBORDINATE MAGISTRATES. 73
As the king's bailiff, it is his business to preserve the rights of the
king within his bailiwick, for so his county is frequently called in the
writs. He must seize to the king's use all lands devolved to the crown
"by attainder or escheat, must levy all fines and forfeitures, must seize
and keep all waifs, wrecks, estrays, and the like, unless they be granted
to some subject, and must also collect the king's rents within the baili-
wick, if commanded by process from the exchequer.
To execute these various offices the sheriff has under him
many inferior officers, an under-sheriff, bailiffs, and
gaolers. 5 [345]
The under-sheriff usually performs all the duties of the
office, a very few only excepted, where the personal presence
of the high-sheriff is necessary.
Bailiffs, or sheriff's officers, are either bailiffs of hundreds
or special bailiffs. Bailiffs of hundreds are officers ap-
pointed over those respective districts by the sheriffs to
collect fines therein, to summon juries, to attend the judges
and justices at the assizes and quarter sessions, and also
to execute writs and process in the several hundreds.
Gaolers are also the servants of the sheriff, and he must
"be responsible for their conduct. [346] Their business is
to keep safely all such persons as are committed to them
by lawful warrant, and if they suffer any such escape the
sheriff shall answer it to the king if it be a criminal matter,
or, in a civil case, to the party injured.
II. The Coroner's is also a very ancient office at the
common law. He is called coroner (coronator), because he
lialth principally to do with pleas of the crown or such
wherein the king is more immediately concerned. And in
this light the Lord Chief Justice of the King's Bench is the
principal coroner in the kingdom, and may if he pleases
exercise the jurisdiction of a coroner in any part of the
realm. But there are also particular coroners for every
county of England, usually four, but sometimes six and
sometimes fewer. [347] This office is of equal antiquity
with the sheriff, and was ordained together with him to
keep the peace when the earls gave up the wardship of the
county.
5. Consult the local statutes.
74 OF SUBORDINATE MAGISTRATES. [BOOK I.
He is still chosen [for life] by the freeholders [of the
county or district. 1 Broom & Had. Com. 415].
The office and power of a coroner are also, like those of
the sheriff, either judicial or ministerial, but principally
judicial. [348] This is in great measure ascertained by
statute 4 Edw. I. de oflicio coronatoris, 7 and consists, first,
in inquiring when any person is slain, or dies suddenly or
in prison, concerning the manner of his death. And this
must be "super visum corporis,"* for if the body be not
found the coroner cannot sit. He must also sit at the very
place where the death happened, 9 and his inquiry is made
by a jury from four, five, or six of the neighboring towns
over whom he is to preside. If any be found guilty by this
inquest of murder or other homicide he is to commit them
to prison for further trial, and is also to inquire concerning
their lands, goods, and chattels, which are forfeited thereby ;
but, whether it be homicide or not, he must inquire whether
any deodand [obsolete] has accrued to the king, or the lord
of the franchise, by this death, and must certify the whole
of this inquisition (under his own seal and the seals of his
jurors), together with the evidence thereon, to the court of
King's Bench, or the next assizes. [349]
Another branch of his office is to inquire concerning shipwrecks, and
certify whether wreck or not, and who is in possession of the goods.
Concerning treasure-trove, he is also to inquire who were the finders,
and where it is, and whether any one be suspected of having found and
concealed a treasure.
The ministerial office of the coroner is only as the sheriff's
substitute. For when just exception can be taken to the
sheriff for suspicion of partiality (as that he is interested
in the suit, or of kindred to either plaintiff or defendant),
6. It is an elective office in this ence. His duties in this country are
country. very similar to those in England. See
7. Concerning the office of coroner, the local statutes. As the United
8. Upon a view of the body. States has no common law criminal
9. It is sufficient if the coroner and jurisdiction it has no office corre-
jury together view the body and the spending to that of coroner.
latter are 'there sworn in his pres-
CHAP. IX.] OF SUBORDINATE MAGISTRATES. 75
the process must then be awarded to the coroner instead of
the sheriff for execution of the king's writs. 1
III. The next species of subordinate magistrates whom
I am to consider are justices of the peace, the principal of
whom is the custos rotulorum, or keeper of the records of
the county.
The common law hath ever had a special care and regard for the con-
servation of the peace. And therefore, before the present constitution
of justices was invented, there were peculiar officers appointed by the
common law for the maintenance of the public peace. Of these, some
had and still have this power annexed to other offices which they hold;
others had it merely by itself, and were thence named custodes, or con-
servatores pacis.i* Those that were so, virtute officiij still continue, but the
latter sort are superseded by the modern justices.
The king's majesty is, by his office and dignity royal, the principal
conservator of the peace within all his dominions, and may give au-
thority to any other to see the peace kept and to punish such as break
it, hence it is usually called the king's peace. [350] The Lord Chancel-
lor, or Keeper, the Lord Treasurer, the Lord High Steward of England,
the Lord Mareschal, the Lord High Constable of England (when any
such officers are in being), and all the justices of the court of King's
Bench (by Tirtue of their offices) and the Master of the Rolls (by pre-
scription) are general conservators of the peace throughout the whole
kingdom, and may commit all breakers of it or bind them in recogni-
zances to keep it. The other judges are only so in their own courts.
The coroner is also a conservator of the peace within his own county,
as is also the sheriff, and both of them may take a recognizance or se-
curity for the peace. Constables, tithing-men, and the like, are also
conservators of the peace within their own jurisdictions, and may ap-
prehend all breakers of the peace and commit them till they find sure-
ties for their keeping it.
Justices [of the peace] are appointed by the king's special
commission under the Great Seal, 3 the form of which was
settled by all the judges A. D. 1590. This appoints them
all, jointly and severally, to keep the peace, and any two or
more of them to inquire of and determine felonies and other
misdemeanors; in which number" some particular justices,
or one of them, are directed to be always included, and no
1. So also in this country. 2. By virtue of his office.
la. Conservators of the peace. 3. Usually elected in this country.
76 OF SUBORDINATE MAGISTRATES. [BOOK I.
business to be done without their presence; the words of
the commission running thus: "quorum aliquem vestrum,
A. B. C. D., &c., unum esse volumus,"* whence the persons
so named are usually called justices of the quorum.
And formerly it was customary to appoint only a select number of
justices eminent for their skill and discretion to be of the quorum; but
now the practice is to advance all of them to that dignity, naming them
all over again in the quorum clause; 5 and no exception is now allowable
for not expressing in the form of warrants, &c., that the justice who
issued them is of the quorum. [352] When any justice intends to act
under this commission he sues out a writ of dedimus potestatem* from the
clerk of the crown in chancery, empowering certain persons therein
named to administer the usual oaths to him, which done, he is at liberty
to act.
As the office of these jnstices [of the peace] is conferred by the king,
so it subsists only daring his pleasure, and is determinable, 1. By the
demise of the crown; that is, in six months after. 2. By express writ
under the Great Seal, discharging any particular person from being any
longer justice. 3. By superseding the commission by writ of supersedeas,
which suspends the power of all the justices, but does not totally destroy
it, seeing it may be revived again by another writ called a procedendo.
4. By a new commission, which virtually though silently discharges all
the former justices that are not included therein, for two commissions
cannot subsist at once. 5. By accession of the office of sheriff or coroner
[which disqualifies during the continuance of the new office, but no
longer].
The power, office, and duty of a justice of the peace de-
pend on his commission and on the several statutes which
have created objects of his jurisdiction. [354] His com-
mission, first, empowers him singly to conserve the peace;
and thereby gives him all the power of the ancient con-
servators at the common law, in suppressing riots and
affrays, in taking securities for the peace, and in apprehend-
ing and committing felons and other inferior criminals. It
also empowers any two or more to hear and determine all
felonies and other offences; which is the ground of their
4. Of whom we will that some one 5. 1 Broom. & Had. Com., 421.
of you, A. B. C. D., etc., be one. 6. We have given authority.
CHAP. IX.] OF SUBORDINATE MAGISTRATES. 77
jurisdiction at sessions, of which more will be said in its
proper place. 7
IV. Fourthly, then, of the constable. [355]
The word constable is frequently said to be derived from the Saxon, and
to signify the support of the king. But as we borrowed the name as
well as the office of constable from the French, I am rather inclined to
deduce it, with Sir Henry Spelman and Dr. Cowel, from that language,
wherein it is plainly derived from the Latin comes slabuli, an officer well
known in the empire; so called because, like the Great Constable of
France, as well as the Lord High Constable of England, he was to
regulate all matters of chivalry, tilts, tournaments, and feats of arms
which were performed on horseback. This great office of Lord High
Constable hath been disused in England, except only upon great and
solemn occasions, as the king's coronation and the like, ever since the
attainder of Stafford, Duke of Buckingham, under King Henry VIII.;
as in France it was suppressed about a century after by an edict of
Louis XIII.: but from his office, says Lambard, this lower constableship
was first drawn and fetched, and is, as it were, a very finger of that
hand. For the statute of Winchester, which first appoints them, directs
that, for the better keeping of the peace, two constables in every hun-
dred and franchise shall inspect all matters relating to arms and armor.
Constables are of two sorts, high constables and petty constables.
The former were first ordained by the statute of Winchester, are ap-
pointed at the court leets of the franchise or hundred over which they
preside, or, in default of that, by the justices at their quarter sessions,
and are removable by the same authority that appoints them. [356]
The petty constables are inferior officers in every town and parish, sub-
ordinate to the high constable of the hundred, first instituted about the
reign of Edw. III.
The general duty of all constables, both high and petty,
is to keep the king's peace in their several districts; and to
7. In the United States the stat- burn's Manual of Criminal Law (3d
utes usually confer upon justices of Ed.), ch. 3; Clark's Grim. Procedure,
the peace jurisdiction to try and de- 82.
termine actions at common law, in- In England this office is said to be
volving small amounts, to try, with an office of honor without profits; in
the assistance of a jury, petty mis- this country it is too often an office
demeanors, and to hold preliminary of profit without honor. It is a court
examinations of persons charged with of limited jurisdiction and jurisdic-
grave offences. They are also con- tion must be shown, or its acts are
servators of the peace, as stated in void. See post, courts of record and
the text. They have no jurisdiction not of record,
to try felonies. See generally Wash-
78 OF SUBORDINATE MAGISTRATES. [Boox I.
that purpose they are armed with very large powers, of
arresting and imprisoning, of breaking open houses, and
the like. 8
V. Surveyors of the highways. 9 [357] Every parish is bound of com-
mon right to keep the high roads that go through it in good and suffi-
cient repair, unless by reason of the tenure of lands, or otherwise, this
care is consigned to some particular private person. From this burthen
no man was exempt by our ancient laws, whatever other immunities
he might enjoy, this being part of the trinoda necessitas, to which every
man's estate was subject, viz., expeditio contra, hostem, arcium constructio,
et pontium reparaiio. For though the reparation of bridges only is ex-
pressed, yet that of roads also must be understood. And indeed now,
for the most part, the care of the roads only seems to be left to parishes,
that of bridges being in great measure devolved upon the county at
large, by statute 22 Hen. VIII. c. 5. If the parish neglected these re-
pairs, they might formerly, as they may still be, indicted for such their
neglect, but it was not then incumbent on any particular officer to call
the parish together, and set them upon this work; for which reason, by
the statute 2 and 3 Ph. and M. c. 8, surveyors of the highways were or-
dered to be chosen in every parish. [358]
Their office and duty consists in putting in execution a variety of laws
for the repairs of the public highways; that is, of ways leading from
one town to another [to which statutes the student is referred for fur-
ther information. Regulated by statute in the United States].
VI. Overseers of the poor.i
The poor of England, till the time of Henry VIII., subsisted entirely
upon private benevolence and the charity of well-disposed Chris-
tians. [359]
[But by the statute of 43 Eliz. c. 2, overseers of the poor were to be
appointed in every parish, whose office and duty were principally these:]
First, to raise competent sums for the necessary relief of the poor, im-
potent, old, blind, and such other, being poor and not able to work; and
secondly, to provide work for such as are able, and cannot otherwise
get employment. [360] For these joint purposes they are empowered to
make and levy rates upon the several inhabitants of the parish, by the
same act of parliament; which has been further explained and enforced
by several subsequent statutes. [361] The two great objects of this
8. In this country they are also the 9. See the local statutes upon this
ministerial officers of the courts of subject.
justices of the peace and in that ca- ' 1. Consult the local statutes upon
pacity serve all process issuing from this subject, as there is no uniform
justice courts. Their duties are pre- rule in this country,
scribed by statute.
CHAP. IX.] OF SUBORDINATE MAGISTRATES. 79
statute seem to have been, 1, To relieve the impotent poor, and them
only. 2, To find employment for such as are able to work; and this
principally by providing stocks of raw materials to be worked up at
their separate homes, instead of accumulating all the poor in one com-
mon workhouse.
This appears to have been the plan of the statute of Queen Elizabeth;
In which the only defect was confining the management of the poor to
small parochial districts, which are frequently incapable of furnishing
proper work or providing an able director. However, the laborious poor
were then at liberty to seek employment wherever it was to be had,
none being obliged to reside in the places of their settlement but such
as were unable or unwilling to work; and those places of settlement be-
ing only such where they were born, or had made their abode, originally
for three years, and afterwards (in the case of vagabonds) for one year
only. [362]
After the Restoration a very different plan was adopted, which has
rendered the employment of the poor more difficult, by authorizing the
subdivisions of parishes; has greatly increased their number, by con-
fining them all to their respective districts; has given birth to the in-
tricacy of our poor-laws, by multiplying and rendering more easy the
methods of gaining settlements; and, in consequence, has created an
infinity of expensive law-suits between contending neighborhoods, con-
cerning those settlements and removals. By the statute 13 and 14 Car.
II. c. 12, a legal settlement was declared to be gained by birth, o r by
inhabitancy, apprenticeship, or service, for forty days; within which period
all intruders were made removable from any parish by two justices of
the peace, unless they settled in a tenement of the annual value of 10L
The frauds naturally consequent upon this provision, which gave a set-
tlement by so short a residence, produced the statute 1 Jac. II. c. 17,
which directed notice in writing to be delivered to the parish officers,
before' a settlement could be gained by such residence. Subsequent pro-
visions allowed other circumstances of notoriety to be equivalent to
such notice given; and those circumstances have from time to time been
altered, enlarged, or restrained, whenever the experience of new in-
conveniences, arising daily from new regulations, suggested the neces-
sity of a remedy. And the doctrine of certificates was invented, by way
of counterpoise, to restrain a man and his family from acquiring a new
settlement by any length of residence whatever, unless in two particular
excepted cases, which makes parishes very cautious of giving such cer-
tificates, and of course confines the poor at home, where frequently no
adequate employment can be had.
The law of settlement may be therefore now reduced to the following
general heads; or, a settlement in a parish may be acquired, 1, By birth;
for wherever a child is first known to be, that is always prima facie
the place of settlement until some other can be shown. [363] This is
also generally the place of settlement of a bastard child, for a bastard,
80 OF SUBORDINATE MAGISTRATES. [Boox I.
having in the eye of the law no father cannot be referred to his settle-
ment, as other children may. But in legitimate children, though the
place of birth be prime facie the settlement, yet it is not conclusively so;
for there are, 2, Settlements by parentage, being the settlement of one's
father' or mother; all legitimate children being really settled in the
parish where their parents are settled until they get a new settlement
for themselves. A new settlement may be acquired several ways; as, 3,
By marriage; for a woman marrying a man that is settled in another
parish changes her own settlement, the law not permitting the separa-
tion of husband and wife. But if the man has no settlement, hers is
suspended during his life if he remains in England and is able to main-
tain her; but in his absence, or after his death, or during, perhaps, his
inability, she may be removed to her old settlement. The other methods
of acquiring settlements in any parish are all reducible to this one, of
forty days' residence therein; but this forty days' residence (which is con-
strued to be lodging 'Or lying there) must not be by fraud, or stealth,
or in any clandestine manner, but made notorious by one or other of the
following concomitant circumstances. The next method, therefore, of
gaining a settlement is, 4, By forty days' residence, and notice. For if a
stranger comes into a parish and delivers notice in writing of his place
of abode, and number of his family, to one of the overseers (which must
be read in the church and registered), and resides there unmolested for
forty days after such notice, he is legally settled thereby. For the law
presumes that such a one at the time of notice is not likely to become
chargeable, else he would not venture to give it, or that in such case
the parish would take care to remove him. But there are also other
circumstances equivalent to such notice; therefore, 5, Renting for a year
a tenement of the yearly value of IQl., and residing forty days in the
parish, gains a settlement without notice, upon the principle of having
substance enough to gain credit for such a house. [364] 6, Being charged
to and paying the public taxes and levies of the parish, excepting" those
for scavengers, highways, and the duties on houses and windows; and,
7, Executing, when legally appointed, any public parochial office for a
whole year in the parish, as church warden, &c., are both of them equiva-
lent to notice, and gain a settlement if coupled with a residence of forty
days. 8, Being hired for a year, when unmarried and childless, and
/serving a year in the same service; 'and 9, Being bound an apprentice
give the servant and apprentice a settlement, without notice, in that
place wherein they serve the last forty days. This is meant to encour-
age application to trades, and going out to reputable services. 10,
Lastly, the having an estate of one's own, and residing thereon forty
days, however small the value may be, in case it be acquired by act of
law, or of a third person, as by descent, gift, devise, &c., is a sufficient
settlement; but if a man acquire it by his own act, as by purchase (in its
popular sense, in consideration of money paid), then unless the con-
CHAP. IX.] OF SUBORDINATE MAGISTRATES. 81
sideration advanced, fcono fide, be 30?., it is no settlement for any longer
time than the person shall inhabit thereon. He is in no case removable
from his own property; but he shall not, by any trifling or fraudulent
purchase of his own, acquire a permanent and lasting settlement.
All persons not so settled may be removed to their own parishes, on
complaint of the overseers, by two justices of the peace, if they shall
adjudge them likely to become chargeable to the parish into which they
have intruded; unless they are in a way of getting a legal settlement,
as by having hired a house of 10. per annum, or living in an annual
service, for then they are not removable. [365] And in all other cases,
if the parish to which they belong will grant them a certificatCj ac-
knowledging them to be their parishioners, they cannot be removed
merely because likely to become chargeable, but only when they become
actually chargeable. But such certificated person can gain no settle-
ment by any of the means above mentioned, unless by renting a tene-
ment of 10Z. per annum, or by serving an annual office in the parish, be-
ing legally placed therein; neither can an apprentice or servant to such
certificated person gain a settlement by such their service. 2
2. See 1 Broom & Had. Com. *437;
and the statutes of the several state*
upon this subject.
82 OF THE PEOPLE. [BOOK I.
CHAPTER X.
OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OK NATIVES.
The first and most obvious division of the people is into
aliens and natural-born subjects. [366]
Natural-born subjects are such as are born within the
dominions of the crown of England, that is, within the
ligeance, or, as it is generally called, the allegiance of the
king, and aliens such as are born out of it. 1 Allegiance
is the tie, or ligamen, which binds the subject to the king in
return for that protection which the king affords the
subject.
Under the feodal system every owner of lands held them in subjection
to some superior or lord, from whom or whose ancestors the tenant or
vassal had received them, and there was a mutual trust or confidence
subsisting between the lord and vassal that the lord should protect the
vassal in the enjoyment of the territory he had granted him, and, on the
other hand, that the vassal should be faithful to the lord and' defend him
against all his enemies. [367] This obligation on the part of the vassal
was called fidelitas or fealty, and an oath of fealty was required, by the
feodal law, to be taken by all tenants to their landlord, which is couched
in almost the same terms as our ancient oath of allegiance, except that
in the usual oath of fealty there was frequently a saving or exception
of the faith duetto a superior lord by name, under whom the landlord
himself was perhaps only a tenant or vassal. But when the acknowledg-
ment was made to the absolute superior himself, who was vassal to no
man, it was no longer called the oath of fealty, but the oath of allegiance,
and therein the tenant swore to bear faith to his sovereign lord, in
opposition to all men, without any saving or exception: ' oontra omnes
homines fidelitatem fecit." Land held by this exalted species of fealty
was called feudum ligium, or liege fee, the vassals homines ligii, or liege
men, and the sovereign their dominus ligius, or liege lord. And when
sovereign princes did homage to each other for lands held under their
respective sovereignties, a distinction was always made between simple
homage, w,hich was only an acknowledgment of tenure, and liege homage,
1. See Black's Const. Law, 257; abroad during such absence will not
Wilson's Int. Law, 126-135. A tern- make the child an alien, even as it
porary absence of the parents from seems, though the mother be an alien,
the country and the birth of a child Ludlam v. Ludlam, 26 N. Y. 357.
CHAP. X.] OF THE PEOPLE. 83
which included the fealty before mentioned and the services consequent
upon it. Thus when our Edward III. in 1329 did homage to Philip VI.
of France for his ducal dominions on that continent, it was warmly dis-
puted of what species the homage was to be, whether liege or simple
homage. But with us in England, it becoming a settled principle of
tenure that all lands in the kingdom are holden of the king as their
sovereign and lord paramount, no oath but that of fealty could ever
be taken to inferior lords, and the oath of allegiance was necessarily
confined to the person of the king alone. By an easy analogy the term
of allegiance was soon brought to signify all other engagements which
are due from subjects to their prince as well as those duties which were
simply and merely territorial. And the oath of allegiance, as adminis-
tered for upwards of six hundred years, contained a promise " to be true
and faithful to the king and his heirs, and truth and faith to bear of
life and limb and terrene honor, and not to know or hear of any ill or
damage intended him without defending him therefrom." [368] But at
the Revolution the terms of this oath being thought perhaps to favor
too much the notion of non-resistance, the present form was introduced
by the convention parliament, which is more general and indeterminata
than the former, the subject only promising " that he will be faithful
and bear true allegiance to the king," without mentioning " his heirs "
or specifying in the least wherein that allegiance consists. The oath
of supremacy is principally calculated as a renunciation of the pope's
pretended authority, and the oath of abjuration, introduced in the reign
of King William, very amply supplies the loose and general texture of
the oath of allegiance, it recognizing the right of hfs Majesty derived
under the act of settlement, engaging to support him to the utmost of
the juror's power, promising to disclose all traitorous conspiracies
against him, and expressly renouncing any claim of the descendants of
the late Pretender, in as clear and explicit terms as the English lan-
guage can furnish. This oath must be taken by all persons in any
office, trust, or employment, and may be tendered by two justices of the
peace to any person whom they shall suspect of disaffection. And the
oath of allegiance may be tendered to all persons above the age of
twelve years, whether natives, denizens, or aliens, either in the court-
leet of the manor or in the sheriff's tourn, which is the court-leet of the
county. 2
But besides these express engagements the law also holds
that there is an implied, original, and virtual allegiance
owing from every subject to his sovereign antecedently to
2. For the present state of the Eng-
lish law upon this subject, see 1
Broom & Had. Com. 444.
84 OF THE PEOPLE. [BooK I.
any express promise, and although the subject never swore
any faith or allegiance in form. [369] For as the king by
the very descent of the crown is fully invested with all the
rights and bound to all the duties of sovereignty before his
coronation, so the subject is bound to his prince by an in-
trinsic allegiance before the superinduction of those out-
ward bonds of oath, homage, and fealty which were only
instituted to remind the subject of this his previous duty
and for the better securing its performance. The formal
profession, therefore, or oath of subjection, is nothing more
than a declaration in words of what was before implied in
law.
Allegiance both express and implied is, however, distin-
guished by the law into two sorts or species, the one natural,
the other local; the former being also perpetual, the latter
temporary. Natural allegiance is such as is due from all
men born within the king's dominions immediately upon
their birth. For immediately upon their birth they are
under the king's protection, at a time, too, when (during
their infancy) they are incapable of protecting themselves.
Natural allegiance is therefore a debt of gratitude which
cannot be forfeited, cancelled, or altered, or altered by any
change of time, place, or circumstance, nor by anything but
the united concurrence of the legislature. 3
3. '' In 1870 (33 Viet., c. 14) a new all the obligations oi a subject, w.ni
and very important statute gave to this qualification, that within the
the alien all desirable facilities of be- limits of the state to which he for-
coming a British subject, and to the merly belonged he shall not be deemed
British subject the power of renounc- to be a British subject unless he has
ing his nationality. By this statute ceased to be a subject of that state
an alien, after five years' residence in pursuance of its laws or of a treaty
in the United Kingdom, or service of to that effect. It is provided also
the crown, who intends, if natural- that aliens naturalized according to
izc-d, to continue his residence or ser- the statute of 1844 (7 & 8 Viet., c.
vice, may apply to one of the princi- 66) may partake of the advantages
pal secretaries of state for a certifi- of this new mode of naturalization,
catc of naturalization. When thus On the other hand, any British sub-
naturalized he becomes entitled to all ject naturalized in any foreign state
the political rights and powers of a is deemed to have ceased to be a sub-
British subject, and is placed under ject and is regarded as an alien, and
CHAP. X.] OF THE PEOPLE. 85
Local allegiance is such as is due from an alien or strange-
born, for so long time as he continues within the king's
dominion and protection, and it ceases the instant such
stranger transfers himself from this kingdom to another.
[370] Natural allegiance is therefore perpetual, and local,
temporary only. The allegiance of an alien is confined in
point of time to the duration of his residence [within this
realm], and in point of locality to the dominions of the
British Empire. From which considerations Sir Matthew
Hale deduces this consequence, that though there be an
usuper of the crown, yet it is treason for any subject, while
the usurper is in full possession of the sovereignty, to prac-
tise anything against his crown and dignity; wherefore,
although the true prince regain the sovereignty^ yet such
attempts against the usurper (unless in defence or aid of
the rightful king) have been afterwards punished with
death, because of the breach of that temporary allegiance
which was due to him as king de facto [in fact]. [371]
This oath of allegiance, or rather the allegiance itself, is held to be
applicable not only to the political capacity of the king or regal office,
but to his natural person and blood royal.
An alien born may purchase lands or other estates, but
not for his own use, for the king is thereupon entitled to
them. 4 [372]
a British subject who has thus be- other aliens, and the same alternation
come an alien can be readmitted to of nationality may be renewed over
British nationality on the same terms and over." Woolsey's Int. Law (5th
witli other aliens, but with the quali- ed), 70, p. 100. See, also, Wilson's
fication before noticed. ... In Int. Law, 135; Black's Const. Law,
August of the same year and in con- 257; 15 U. S. Stat. at Large, 223.
formity with this statute, a conven- 4. An alien cannot, however, at
tion relative to naturalization was common law take real property by
concluded between Great Britain and descent. This rule and the rule stated
the United States. Subjects or citi- in the text have been greatly changed
zens of either state may be natural- by statutes both here and in Eng-
ized in the other according to its land. See the local state statutes;
laws, and after this they cease to also 33 Viet., c. 14. See, also, U. S.
retain their old national status [or Const., art. 14, amend, sec. 1, by
condition] ; but may regain it like which it is provided that "All per-
86 OF THE PEOPLE. [BOOK I.
Yet an alien may acquire a property in goods, money and
other personal estate, or may hire a house for his habitation,
for personal estate is of a transitory and movable nature;
and besides, this indulgence to strangers is necessary for
the advancement of trade. Aliens also may trade as freely
as other people. Also an alien may bring an action con-
cerning personal property, and may make a will and dis-
pose of his personal estate. When I mention these rights
of an alien, I must be understood of alien friends only, or
such whose countries are in peace with ours; for alien
enemies have no rights, no privileges, unless by the king's
special favor, during the time of war. [373]
When I say that an alien is one who is born out of the
king's dominions or allegiance, this also must be under-
stood with some restrictions. The children of the king's
ambassadors born abroad were always held to be natural
subjects; for as the father, though in a foreign country,
owes not even a local allegiance to the prince to whom ho
is sent, so, with regard to the son also, he was held (by a
kind of postUminiinu} 5 to be born under the king of Eng-
land's allegiance, represented by his father the ambassador.
To encourage also foreign commerce, it was enacted by
statute 25 Edw. III. st. 2, that all children born abroad,
provided both their parents were at the time of his birth in
allegiance to the king, and the mother had passed the seas
by her husband's consent, might inherit as if born in Eng-
land, and accordingly it hath been so adjudged in behalf
of merchants. But by several more modern statutes these
restrictions are still farther taken off, so that all children,
born out of the king's ligeance, whose fathers (or grand-
fathers by the father's side) were .natural-born subjects,
sons born or naturalized in the United any state deprive any person of life,
States and subject to the jurisdiction liberty or property, without due proc-
thereof are citizens of the United ess of law, nor deny to any person
States and of the state wherein they within its jurisdiction the equal pro-
reside. No state shall make or en- tection of the laws." See, also, U. S.
force any law which shall abridge Const. Amd. 15.
the privileges or immunities of citi- 5. A return to one's old condition
ens of the United States; nor shall and former privileges.
CHAP. X.] OF THE PEOPLE. 87
are now deemed to be natural-born subjects themselves to
all intents and purposes; unless their said ancestors were
attained, or banished beyond the sea for high treason, or
were at the birth of such children in the service of a prince
at enmity with Great Britain. Yet tlje grandchildren of
such ancestors shall not be privileged in respect of the
alien 's duty, except they be Protestants, and actually reside
within the realm; nor shall be enabled to claim any estate
or interest, unless the claim be made within five years after
the same shall accrue. 6
The children of aliens born here in England are, generally
speaking, natural-born subjects, and entitled to all the privi-
leges of such. 7 [374]
A denizen is an alien born, but who has obtained, ex donations regis*
letters-patent to make him an English subject, a high and incom-
municable branch of the royal prerogative. A denizen is in a kind of
middle state, between an alien and natural-born subject, and partakes of
both of them. He may take lands by purchase or devise, which an alien
may not, but cannot take by inheritance; for his parent, through whom
he must claim, being an alien, had no inheritable blood, and therefore
could convey none to the son. And, upon a like defect of hereditary
blood, the issue of a denizen, born before denization, cannot inherit to
him, but his issue born after may. A denizen is not excused from paying
the alien's duty, and some other mercantile burthens. And no denizen
can be of the privy council, or either house of parliament, or have any
office of trust, civil or military, or be capable of any grant of lands, &c.,
from the crown.
Naturalization cannot be performed but by act of parlia-
ment ;f or by this an alien is put in exactly the same state
as if he had been born in the king's ligeance; except only
6. " The children of persons who of the author, see 1 Broom & Had.
now are or have been citizens of the Com., *450.
United States shall, though born out 7. Unless, of course, coming within
of the limits and jurisdiction of the some exception already noticed, such
United States, be considered as citi- as the children of an ambassador,
zens thereof." Rev. Stat. U. S., 8. By gift of the king. We have
2172; Wilson's Int. Law, 126-135 and nothing corresponding to denization
cases cited. As to statutory changes in our country,
of the law in England since the time
88 OF THE PEOPLE. [BOOK I.
that he is incapable, as well as a denizen, of being a member
of the privy council, or parliament, holding offices, grants,
&c. No bill for naturalization can be received in either
house of parliament without such disabling clause in it; nor
without a clause disabling the person from obtaining any
immunity in trade thereby in any foreign country, unless
he shall have resided in Britain for seven years next after
the commencement of the session in which he is naturalized.
Neither can any person be naturalized or restored in blood
unless he hath received the sacrament of the Lord 's Supper
within one month before the bringing in of the bill, and
unless he also takes the oath of allegiance and supremacy
in the presence of the parliament. But these provisions
have been usually dispensed with by special acts of parlia-
ment, previous to bills of naturalization of any foreign
princes or princesses. 9
9. The English law of naturaliza- p. 66; Wilson's Int. Law, 126. See
tion has been considerably changed Rev. Stat. U. S., 2165 et seq. for
since our author wrote. For these the American law upon this subject,
changes see 1 Broom & Had. Com., also Wilson's Int. Law, 126.
*453; Woolsey's Int. Law, 5 70;
CHAP. XL] OF THE CLERGY. ^ 80
CHAPTER XI.
OF THE CLERGY.
[Inasmuch as it is provided by the Constitution of the
United States that ' ' Congress shall make no law respecting
an establishment of religion, or prohibiting the free exer-
cise thereof " (Amend. Art. I.), and that " no religious test
shall ever be required as a qualification to any office or
public trust under the United States " (Const. Art. VI.),
which principles have been generally adopted by the indi-
vidual states in their constitutions, the matters discussed
in this chapter are not deemed of sufficient practical value
to have a place in this abridgment.]
90 OF THE CIVIL STATE. [BOOK I.
CHAPTER XII.
OF THE CIVIL STATE.
The lay part of Ills Majesty's subjects, or such of the people as are
not comprehended under the denomination of clergy, may be divided into
three distinct states, the civil, the military, and the maritime. [396]
That pare of the nation which falls under our first and most compre-
hensive division, the civil state, includes all orders of men, from the
highest nobleman to the meanest peasant, that are not included under
either our former division, of clergy, or under one of the two latter,
the military and maritime states; and it may sometimes include indi-
viduals of the other three orders, since a nobleman, a knight, a gentle-
man, or a peasant may become either a divine, a soldier, or a seaman.
The civil state consists of the nobility and the commonalty. Of the
nobility, the peerage of Great Britain, or Lords Temporal, as forming,
together with the bishops, one of the supreme branches of the legis-
lature, I have before sufficiently spoken. We are here to consider them
according to their several degrees, or titles of honor.
All degrees of nobility and honor are derived from the king as their
fountain, and he may institute what new titles he pleases. Hence it
is that all degrees of nobility are not of equal antiquity. Those now in
use are dukes, marquises, earls, viscounts, and barons.
1. A duke [Latin dux, duds, a leader], though he be with us, in respect
of his title of nobility, inferior in point of antiquity to many others,
yet is superior to all of them in rank; his being the first title of dignity
after the royal family. [397]
2. A marquis, marchio, is the next degree of nobility. His office for-
merly was (for dignity and duty wer-e- never separated by our ancestors)
to guard the frontiers and limits of the kingdom, which were called the
marches, from the Teutonic word marche, a limit.
3. An earl is a title of nobility so ancient that its original cannot
clearly be traced out. [398] Thus much seems tolerably certain: that
among the Saxons they were called ealdormen, quasi elder men, signify-
ing the same as senior or senator among the Romans, and also schiremen,
because they had each of them the civil government of a several divi-
sion or shire. On the irruption of the Danes they changed the name to
eorles, which, according to Camden, signified the same in their language.
In Latin they are called comites (a title first used in the Empire), from
heing the king's attendants, "a societate women sumpserunt, rcges enim
tales sibi associant." i After the Norman Conquest they were for some
1. They were named from their so-
ciety because they were companions
of the king.
CHAP. XII.] OF THE CIVIL STATE. 91
time called counts or counters, from the French; but they did not long
retain that name themselves, though their shires are from thence called
counties to this day. The names of earls or comites is now become a
mere title, they having nothing to do with the government of the county;
which, as has been more than once observed, is now entirely devolved
on the sheriff, the earl's deputy, or vice-comes.
4. The name of -vice-comes or viscount was afterwards made use of
as an arbitrary title of honor, without any shadow of office pertaining
to it, by Henry VI., when, in the eighteenth year of his reign, he created
John Beaumont a peer, by the name of Viscount Beaumont, which was
the first instance of the kind.
5. A baron's is the most general and universal title of nobility; for
originally every one of the peers of superior rank had also a barony
annexed to his other titles. [399] . . . Richard II. first made it a
mere title of honor by conferring it on divers persons by his letters-
patent.
The right of peerage seems to have been originally territorial, that is,
annexed to lands, honors, castles, manors, and the like, the proprietors
and possessors of which were, in right of those estates, allowed to be
peers of the realm, and were summoned to parliament to do suit and
service to their sovereign, and when the land was alienated the dignity
passed with it as appendant. [400] But afterwards, when alienations
grew to be frequent, the dignity of peerage was confined to the lineage
of the party ennobled, and instead of territorial became personal.
Peers are now created either by writ or by patent, for those who claim
by prescription must suppose either a writ or patent made to their an-
cestors, though by length of time it is lost. The creation by \vrit, or
the king's letter, is a summons to attend the House of Peers by the
style and title of that barony which the king is pleased to confer; that
by patent is a royal grant to a subject of any dignity and degree of
peerage. The creation by writ is the more ancient way, but a man is
not ennobled thereby unless he actually take his seat in the House of
Lords. The most usual way is to grant the dignity by patent, which
inures to a man and his heirs according to the limitations thereof, though
he never himself makes use of it. Creation by writ has also one ad-
vantage over that by patent, for a person created by writ holds the
dignity to him and his heirs without any words to that purport in the
writ; but in letters-patent there must be words to direct the inheritance,
else the dignity inures only to the grantee for life. [401]
Let us next take a view of a few of the principal incidents attending
the nobility, exclusive of their capacity as members of parliament and
as hereditary counselors of the crown, both of which we have before
considered. And first we must observe that in criminal cases a noble-
man shall be tried by his peers. It is said that this does not extend to
bishops, who, though they are lords of parliament and sit there by
92 OF THE CIVIL STATE. [Boox I.
virtue of their baronies, which they hold jure ecclesiae, yet are not en-
nobled in blood, and consequently not peers with the nobility. As to
peeresses, the statute 20 Hen. VI. c. 9 declares the law to be, that peer-
esses, either in their own right or by marriage, shall be tried before the
same judicature as other peers of the realm. If a woman, noble in her
own right, marries a commoner, she still remains noble, and shall be
tried by her peers; but if she be only noble by marriage, then by a sec-
ond marriage with a commoner she loses her dignity, for as by mar-
riage it is gained, by marriage it is also lost. Yet if a duchess dowager
marries a baron she continues a duchess still, for all the nobility are
pares, and therefore it is no degradation. [402] A peer or peeress, either
in her own right or by marriage, cannot be arrested in civil cases, and
they have also many peculiar privileges annexed to their peerage in the
course of judicial proceedings. A peer sitting in judgment gives not his
verdict upon oath like an ordinary juryman, but upon his honor. He
answers also to bills in chancery upon his honor and not upon his
oath; but when he is examined as a witness either in civil or criminal
cases he must be sworn.
A peer cannot lose his nobility but by death or attainder. It hath
been said indeed that if a baron wastes his estate so that he is not
able to support the degree, the king may degrade him; but it is expressly
held by later authorities that a peer cannot be degraded but by act of
parliament.
The commonalty, like the nobility, are divided into several degrees,
and as the lords, though different in rank, yet all of them are peers in
respect of their nobility, so the commoners, though some are greatly su-
perior to others, yet all are in law peers in respect of their want of
nobility. [403]
Now the first personal dignity after the nobility is a knight of the order
of St. George, or of the Garter, first instituted by Edward III. A. D. 1344.
Next (but not till after certain official dignities, as Privy Counselors, the
Chancellors of the Exchequer and Duchy of Lancaster, the Chief Justice
of the King's Bench, the Master of the Rolls, and the other English
judges) follows a knight banneret, who indeed by statutes 5 Ric. II. st. 2,
c. 4, and 14 Ric. II. c. 11, is ranked next after barons and his precedence
before the younger sons of viscounts was confirmed to him by order
of King James I. in the tenth year of his reign. But in order to entitle
himself to this rank he must have been created by the king in person,
in the field, under the royal banners, in time of open war. Else he ranks
after baronets, who are the next order, which title is a dignity of in-
heritance created by letters-patent and usually descendible to the issue
male. Next follow knights of the bath, an order instituted by King
Henry IV. and revived by King George I. [404] They are so called from
the ceremony of bathing the night before their creation. The last of
these inferior nobility are knights bachelors, the most ancient, though
the lowest, order of knighthood amongst us.
CHAP. XII.] OF THE CIVIL STATE. 93
These, Sir Edward Coke says, are all the names of dignity in this
kingdom, esquires and gentlemen being only names of worship. But
before these last the heralds rank all colonels, Serjeants at law, and
doctors in the three learned professions. [405]
Esquires and gentlemen are confounded together by Sir Edward Coke,
who observes that every esquire is a gentleman, and a gentleman is de-
fined to be one qui arma gerit, who bears coat armor, the grant of which,
adds gentility to a man's family. [406] It is indeed a matter somewhat
unsettled what constitutes the distinction, or who is a real esquire, for
it is not an estate, however large, that confers this rank upon its owner.
Camden, who was himself a herald, distinguishes them the most accur-
ately, and he reckons up four sorts of them: 1. The eldest sons of
knights, and their eldest sons, in perpetual succession; 2. The eldest
sons of younger sons of peers, and their eldest sons in like perpetual
succession, both which species of esquires Sir Henry Spelman entitles
armigeri natalitii;^ 3. Esquires created by the king's letters-patent or
other investiture, and their eldest sons; 4. Esquires by virtue of their
offices, as justices of the peace and others who bear any office of trust
under the crown. To these may be added the esquires of knights of the
bath, each of whom constitutes three at his installation; and all foreign,
nay Irish peers, for not only these, but the eldest sons o'f peers of Great
Britain, though frequently titular lords, are only esquires in the law,
and must be so named in all legal proceedings. As for gentlemen, says
Sir Thomas Smith, they be made good cheap in this kingdom, for whoso-
ever studieth the laws of the realm, who studieth in the universities,
who prof esseth the liberal sciences, and, to be short, who can live idly
and without manual labor, and will bear the port, charge, and counten-
ance of a gentleman, he shall be called master and shall be taken for a
gentleman. A yeoman is he that hath free land of forty shillings by
the year, who was anciently thereby qualified to serve on juries, vote for
knights of the shire, and do any other act where the law requires one
that is probits et legalis homo? [407]
The rest of the commonalty are tradesmen, artificers, and laborers,
who, as well as all others, must, in pursuance of the statute 1 Hen. V.
c. 5, be styled by the name and addition of their estate, degree, or
mystery, and the place to which they belong, or where they have been
conversant, in all original writs of actions personal, appeals, and in-
dictments, upon which process of outlawry may be awarded, in order,
as it should seem, to prevent any clandestine or mistaken outlawry, by
reducing to a specific certainty the person who is the object of its process.
2. Armbearers by birth. 3. Godd and lawful man.
94 MILITARY AND MARITIME STATES. [BOOK I.
CHAPTEK XIII.
OF THE MILITARY AND MARITIME STATES.
The military state includes the whole of the soldiery, or such persons
as are peculiarly appointed among the rest of the people for the safe-
guard and defence of the realm. [408] [The subject-matter of this chap-
ter has no application in the United States.]
CHAP. XIV.] OF MASTER AND SERVANT.
95
CHAPTEK XIV.
OF MASTER AND SERVANT. 1
The three great relations in private life are, 1. That of
master and servant, which is founded in convenience, where-
by a man is directed to call in the assistance of others where
his own skill and labor will not be sufficient to answer the
cares incumbent upon him. [422] 2. That of husband and
wife, which is founded in nature but modified by civil so-
ciety, the one directing man to continue and multiply his
1. In the older books the entire law
of agency was comprised and dis-
cussed under the head " Master and
Servant." The author's discussion of
this topic is so brief, that a summary
of the modern law of agency, though
necessarily very brief, will be given
here, references for details being
made principally to the recent work
of Mr. Tiffany upon the subject.
An agent may be denned as a per-
eon authorized by another, called the
principal, either by prior authority
duly conferred, or by subsequent rati-
fication, to do any legal act in his,
the principal's, behalf. Tiffany,
Agency, 1-3, where a collection of
definitions will be found in the notes.
A servant is included within this defi-
nition, the only difference being in
the nature of the services. Id., p. 5.
The relation may be created by ap-
pointment, by ratification of acts
done as an agent, or by estoppel; and
the authority may be conferred, un-
less otherwise prescribed by statute,
by parol. However, authority to ex-
ecute a deed must be conferred by a
eealed instrument. Tiffany, Agency,
15, 20, and cases cited. In some jp-
culiar cases an agency may be in-
ferred by necessity from the relations
of the parties. Tiffany, Agency, 39,
and cases cited, where the subject is
discussed in detail.
As a rule any person capable of
contracting may act by an agent. An
infant, insane person or a married
woman cannot act by an agent,
though as to infants and insane per-
sons the tendency is to limit the ex-
ception to authority conferred by a
sealed instrument. See Tiffany,
Agency, 94; Ewell's Lead. Cases (1st
Ed.), 44, note and cases cited.
Any person, even one under a dis-
ability, may be an agent to such an
extent as to bind the principal. If
one sets a vicious dog upon another
to his damage, though the dog can
hardly be called an agent, the one
so setting him on would be clearly
liable for the injury.
The relation of agency once cre-
ated, may be terminated by limita-
tion contained in the terms of the
appointment, by the act of the par-
ties or by operation of law, as by the
death of either principal or agent,
the insanity of the principal, the
96
OF MASTER AND SERVANT.
[BooK I.
species, the other prescribing the manner in which that
natural impulse must be confined and regulated. 3. That
of parent and child, which is consequential to that of mar-
riage, being its principal end and design, and it is by virtue
of this relation that infants are protected, maintained, and
educated. 4. That of guardian and ward, which is a kind
of artificial parentage in order to supply the deficiency,
whenever it happens, of the natural.
I. As to the several sorts of servants, I have formerly
observed that pure and proper slavery does not nay, can-
not subsist in England, such, I mean, whereby an ab-
marriage of a feme sole prin-
cipal, the bankruptcy of the princi-
pal, or by war where the principal
and agent are citizens of different
and belligerent countries. Tiffany,
Agency, ch. 6, and cases cited. Where,
however, the authority constitutes a
security or is coupled with an inter-
est in the agent, the death of the
principal does not revoke the au-
thority.
As to the liability of the principal
for the acts of his agent, he is liable
to third persons for every act done
by his agent, within the real or ap-
parent scope of his authority. This
is the broadest and most important
rule in this branch of the law.
The principal is not, however, as a
rule criminally liable for the act of
his agent, unless he has previously
actually authorized the criminal act.
See Tiffany, Agency, 269, 297; EwelFs
Evans Agency, *453,
" A party to a contract made by
an agent in the name of his principal,
is liable thereon to the principal, who
alone may sue thereon." And in such
action the fraud, misrepresentation,
etc., of the agent within the real or
apparent scope of his authority will
constitute a defence in the same man-
ner as if the act of the agent had
been committed by his principal.
Tiffany, Agency, ch. 12, where the
cases are fully collected.
" Where a third person by his
wrongful act inflicted upon a servant
deprives the master of his services,
or knowingly entices from the service
of the master a servant employed un-
der a contract, such person is liable
to the master for the loss of service
thereby caused." Tiffany, Agency,
328, and cases cited. See the leading
case of Lumley v. Gye. 2 Ell. & B.
216; Cooley on Torts, '279; Hale on
Torts, 362.
A duly authorized contract made
by an agent in the name of his prin-
cipal imposes no liability upon the
agent. The principal alone is liable.
But where the agent contracts per-
sonally or without authority he is
liable upon his contract. See Tiffany,
Agency, 330, 355, 368. See exceptions
to rule stated on page 355.
It is the duty of the agent to his
principal to obey legal instructions,
to exercise skill, care, diligence and
good faith and to account to his prin-
cipal; and when he has so performed
the stipulated services he is entitled
to compensation therefor, unless the
CHAP. XIV.] OF MASTER AND SERVANT. 97
solute and unlimited power is give"n to the master over the
life and fortune of the slave. [423] And now it is laid
down that a slave or negro, the instant he lands in England,
becomes a freeman, that is, the law will protect him in
the enjoyment of his person and his property. [424] Yet
with regard to any right which the master may have law-
fully acquired to the perpertual service of John or Thomas,
this will remain exactly in the same state as before ; for this
is no more than the same state of subjection for life which
every apprentice submits to for the space of seven years,
or sometimes for a longer term. 2 [425]
1. The first sort of servants, therefore, acknowledged by the laws of
England are menial servants, so called from being intra maenia, [within
the walls] or domestics. The contract between them and their mast-
ers arises upon the hiring. If the hiring be general, without any par-
ticular time limited, the law construes it to be a hiring for a year [not
the rule in the United States], but the contract may be made for any
larger or smaller term. All single men between twelve years old and
sixty, and married ones under thirty years of age, and all single women
between twelve and forty, not having any visible livelihood, are com-
pellable by two justices to go out to service in husbandry, or certain
specific trades, for the promotion of honest industry [not law. in the
United States] ; and no master can put away his servant, or servant
leave his master after being so retained, either before or at the end of
his term, without a quarter's warning, unless upon reasonable cause,
contract otherwise stipulates, even one year, there seems to. be no reason
though no benefit accrues to his prin- to prevent his contracting to serve
cipal. Tiffany, Agency, 395-438, 439, for one hundred years, if he should
445, and cases cited. so long live, though in general the
The foregoing are the principal courts would be inclined to consider
rules of the law of agency, though it an improvident engagement, and
stated very briefly. For details, see would not be very strict in enforcing
the M'orks cited. it. But there could be no doubt but
2. " The meaning of this sentence such a contract with a person in a
is not very intelligible. If a right to state of slavery would be absolutely
perpetual service can be acquired law- null and void." Christian. It was
fully at all, it must be acquired by decided in 1772, on habeas corpus in
a contract with one who is free, who the case of James Somersett, that a
is sui juris [of his own right] and heathen negro when brought to Eng-
competent to contract. Such a hiring land owes no service to an American
may not perhaps be illegal and void, or any other master. 20 State Trials,
If a man can contract to serve for 1; Lofft's Rep., 1.
7
98 OF MASTER AND SERVANT. [BOOK I.
to be allowed by a justice of the peace. 3 But they may part by consent,
or make a special bargain. [426]
2. Another species of servants are called apprentices
(from apprendre, to learn), and are usually bound for a
term of years by deed indented, or indentures, to serve their
masters and be maintained and instructed by them. This
is usually done to persons of trade, in order to learn their
art and mystery, and sometimes very large sums are given
with them as a premium for such their instruction; but it
may be done to husbandmen nay, to gentlemen and
others. And children of poor persons may be apprenticed
out by the overseers, with consent of two justices, till
twenty-one years of age, to such persons as are thought
fitting, for which purposes our statutes have made the in-
dentures obligatory, even though such parish apprentice be
a minor. 4
3. A third species of servants are laborers, who are only hired by the
day or the week, and do not live intra maenia [within the walls] as part
of the family, concerning whom the statutes before cited have made
many very good regulations: 1, Directing that all persons who have no
visible effects may be compelled to work; [427] 2, Defining how long they
must continue at work in summer and in winter; 3, Punishing such
as leave or desert their work; 4, Empowering the justices at sessions,
or the sheriff of the county, to settle their wages; and 5, Inflicting penal-
ties on such- as either give or exact more wages than are so settled. 5
4. There is yet a fourth species of servants, if they may
be so called, being rather in a superior, a ministerial, capac-
ity, such as stewards, factors, and bailiffs, whom, however,
the law considers as servants pro tempore, with regard to
such of their acts as affect their master's or employer's
property. Which leads me to consider, -
3. Here, if discharged without cause, in this country. Consult the local
the servant may, if ready and willing statutes.
to serve, collect wages for the whole 5. The distinction between menial
period contracted for. Justices of the servants and laborers does not pre-
pcace have no such jurisdiction in the vail in the United States. See, how-
United States. ever, state statutes upon the subject
4. Variously regulated by statute of vagrancy.
CHAP. XIV.] OF MASTER AND SERVANT. 99
II. The manner in which their relation of service affects
either the master or servant.
And, first, by hiring and service for a year, or apprenticeship under
indentures, a person gains a settlement in that parish wherein he last
served forty days. In the next place, persons serving seven years as
apprentices to any trade have an exclusive right to exercise that trade
in any part of England. [Repealed.]
A master may by law correct his apprentice for negli-
gence or other misbehavior, so it be done with moderation, 6
though, if the master or master's wife beats any other ser-
vant of full age, it is good cause of departure. [428]
By service all servants and laborers, except apprentices,
become entitled to wages: according to their agreement, if
menial servants. [And in the United States in all other
cases of service also, where the relation is created by con-
tract, either according to the terms of the agreement or
upon a quantum meruit. 7
III. Let us, lastly, see how strangers may be affected by
this relation of master and servant; or how a master may
behave towards others on behalf of his servant; and what
a servant may do on behalf of his master. [429]
And first, the master may maintain, that is, abet and
assist, his servant in any action at law against a stranger;
whereas in general it is an offence against public justice to
encourage suits and animosities by helping to bear the ex-
pense of them, and is called in law maintenance. A master
also may bring an action against any man for beating or
maiming his servant; but in such case he must assign, as a
special reason for so doing, his own damage by the loss of
his service, and this loss must be proved upon the trial. A
master likewise may justify an assault in defence of his
servant, and a servant in defence of his master, the mas-
ter, because he has an interest in his servant, not to be de-
6. The text is clearly sustained by tices and menial servants under age.
the early authorities. See Reeve's 2 Kent Com., 261; Reeve's Dom. Rel.,
Com. Rel., *374, and cases cited. The *375.
better opinion now is that this right 7. See this term explained post, un-
cannot be extended beyond appren- der the head Pleading.
100 OF MASTEB AND SEKVANT. [BOOK I.
prived of his service; the servant, because it is part of his
duty, for which he receives his wages, to stand by and
defend his master. Also if any person do hire or retain my
servant, being in my service, for which the servant de-
parteth from me and goeth to serve the other, I may have
an action for damages against both the new master and the
servant, or either of them. But if the new master did not
know that he is my servant, no action lies, unless he after-
wards refuse to restore him upon information and demand.
As for those things which a servant may do on behalf of
his master, they seem all to proceed upon this principle:
that the master is answerable for the act of his servant if
done by his command, either expressly given or implied;
nam qui facit per alium, faoit per sc. s Therefore, if the ser-
vant commit a trespass by the command or encouragement
of his master, the master shall be guilty of it, though the
servant is not thereby excused, for he is only to obey his
master in matters that are honest and lawful. [430] If an
innkeeper's servants rob his guests, the master is bound
to restitution; for as there is a confidence reposed in him
that he will take care to provide honest servants, his negli-
gence is a kind of implied consent to the robbery; nam qui
non prohibet, cum prohibere possit, jubct? So likewise if
the drawer at a tavern sells a man bad wine, whereby his
health is injured, he may bring an action against the master;
for although the master did not expressly order the servant
to sell it to that person in particular, yet his permitting
him to draw and sell it at all is impliedly a general com-
mand.
In the same manner, whatever a servant is permitted to
do in the usual course of his business, is equivalent to a
general command. If I pay money to a banker's servant,
the banker is answerable for it; if I pay it to a clergyman's
or a physician's servant, whose usual business it is not to
receive money for his master, and he embezzles it, I must
8. For who does a thing by an- when he has power to do so, corn-
other, does u himself. mands.
9. For he who does not prohibit
CHAP. XIV.] OF MASTER AND SERVANT. 101
pay it over again. If a steward lets a lease of a farm with-
out the owner's knowledge, the owner must stand to the
bargain, for this is the steward 's business. A wife, a friend,
a relation that use to transact business for a man, are quoad
hoc his servants, and the principal must answer for their
conduct; for the law implies that they act under a general
command. And without such a doctrine as this no mutual
intercourse between man and man could subsist with any
tolerable convenience. If I usually deal with a tradesman
by myself, or constantly pay him ready money, I am not
answerable for what my servant takes up upon trust; for
here is no implied order to the tradesman to trust, my ser-
vant. But if I usually send him upon trust, or sometimes
on trust and sometimes with ready money, I am answerable
for all he takes up; for the tradesman cannot possibly dis-
tinguish when he comes by my order, and when upon his
own authority.
If a servant, lastly, by his negligence does any damage
to a stranger, the master shall answer for his neglect. If
a smith's servant lames a horse while he is shoeing him, an
action lies against the master, and not against the servant.
[431] But in these cases the damage must be done while
he is actually employed in the master's service, otherwise
the servant shall answer for his own misbehavior. Upon
this principle, by the common law, if a servant kept his
master's fire negligently, so that his neighbor's house was
burned down thereby, an action lay against the master,
because this negligence happened in his service; otherwise,
if the servant, going along the street with a torch, by negli-
gence sets fire to a house, for there he is not in his master's
immediate service, and must himself answer the damage
personally. But now the common law is, in the former case,
altered by statute, 6 Anne c. 3 [re-enacted with some ex-
tensions of place by 14 Geo. III. c. 78, 86], which ordains
that no action shall be maintained against any in whose
house or chamber any fire shall accidentally begin; for their
own loss is sufficient punishment for their own or their
servant's carelessness. [Held, that the word " accident-
102 OF MASTER AND SERVANT. [BOOK I.
ally " does not apply to fires caused by the negligence of
either the owner or any of his servants. Filliter v. Phip-
pard, 11 Q. B. 347.] A master is, lastly, chargeable if any
of his family layeth or casteth anything out of his house
into the street or common highway, to the damage of any
individual, or the common nuisance of his Majesty's liege
people ; for the master hath the superintendence and charge
of all his household.
We may observe that in all the cases here put the master
may be frequently a loser by the trust reposed in his ser-
vant, but never can be a gainer; he may frequently be
answerable for his servant's misbehavior, but never can
shelter himself from punishment by laying the blame on his
agent. [432] The reason of this is still uniform and the
same: that the wrong done by the servant is looked upon
in law as the wrong of the master himself; and it is a stand-
ing maxim, that no man shall be allowed to make any ad-
vantage of his own wrong. 1
1. See Broom's Legal Maxims, *255- ims and their explanation in the vol-
270; Co. Litt., 1486. The student is ume first above cited. It is a very
advised to study diligently the max- valuable work.
CHAP. XV.] OF HUSBAND AND WIFE. 103
CHAPTER XV.
OF HUSBAND AND WIFE.
1. Our law considers marriage in no other light than as
a civil contract. [433] [It constitutes a status, or domestic
relation arising out of contract.] The holiness of the matri-
monial state, is left entirely to the ecclesiastical law; the
temporal courts not having jurisdiction to consider unlaw-
ful marriage as a sin, but merely as a civil inconvenience.
The punishment, therefore, or annulling of incestuous or
other unscriptural marriages is the province of the spiritual
courts [here, usually of courts of chancery], which act pro
salute animae. 1 And, taking it in this civil light, the law
treats it as it does all other contracts, 2 allowing it to be
good and valid in all cases where the parties at the time
of making it were, in the first place, icilliny to contract;
secondly, able to contract; and, lastly, actually did contract,
in the proper forms and solemnities required by law.
First, they must be willing to contract. [434] " Con-
sensus, non concubitus, facit nuptias," is the maxim of the
civil law in this case; and it is adopted by the common law-
yers, who indeed have borrowed, especially in ancient times,
almost all their notions of the legitimacy of marriage from
the canon and civil laws.
1. For the safety of the soul. lowed by consummation/ it amounts
2. It differs from an ordinary con- in the United States generally to a-
tract in .that it is indissoluble at the marriage which the parties cannot
will of the parties. Incurable insan- dissolve, if they are competent as to
ity arising subsequent to the mar- age and consent. 2 Kent. Com., 89;
riage will not avoid it. In its incep- Reeve, Dom. Rel., ch. 15, p. *195, and
tion, however, it arises from con- notes; Tiffany, Dom. Rel. v 7-37. See,
tract and the early common law re- however, Beamish v. Beamish, 9 H.
quired no ecclesiastical sanction to L. Cas. 274; Queen v. Willis, 10 Cl.
render it valid. If it be made per & F. 534; Beverlin v. Beverlin, 29 W.
verba de praesenti (by words of the Va. 732; Commonwealth v. Munson,
present time) and is not followed by 127 Mass. 459; Duncan v. Duncan, 10
cohabitation, or per verba de futuro Ohio St. 181; Cheney v. Arnold, 15
<by words of the future) and is fol- N. Y. 345.
1 04 OF HUSBAND AND WIFE. [Booic I.
Secondly, they must be able to contract. In general, all
persons are able to contract themselves in marriage, unless
they labor under some particular disabilities and incapaci-
ties. What those are, it will be here our business to
inquire.
Now these disabilities are of two sorts: first, such as are
canonical, and therefore sufficient by the ecclesiastical laws
to avoid the marriage in the spiritual court. But these in
our law only make the marriage voidable, and not ipso facto
void, until sentence of nullity be obtained. Of this nature
are precontract, [abolished] m consanguinity, or relation by
blood and affinity, or relation by marriage, 3 and some par-
ticular corporal infirmities. But such marriages not being
void ab initio, but voidable only by sentence of separation,
they are esteemed valid to all civil purposes unless such
separation is actually made during the life of the parties.
[Here, whether a marriage is void or voidable, depends
upon the words of the statute.] For, after the death of
either of them, the courts of common law will not suffer
the spiritual courts to declare such marriages to have been
void ; because such declaration cannot now tend to the refor-
mation of the parties. It is declared by the statute 32 Hen.
VIII. c. 38, that nothing, God's law except, shall impeach
any marriage, but within the Levitical degrees, the farthest
of which is that between uncle and niece. [435]
The other sorts of disabilities are those which are created,
or at least enforced, by the municipal laws. These civil
disabilities make the contract void ab initio, 4 and not
merely voidable. Not that they dissolve a contract already
formed, but they render the parties incapable of forming
any contract at all; they do not put asunder those who are
joined together, but they previously hinder the junction.
[436]
3. These disabilities, consanguinity gree reckoned according to the civil
and affinity, are now very generally law, inclusive, that is nearer than
defined and regulated by statute. In first cousins. Tiffany, Dora. Rel. 24,
the absence of statute there can be and cases cited. See the local stat-
no valid marriage within the Leviti- utes.
cal degrees, i. e., within the third de- 4. From the beginning.
CHAP. XV.] ' OF HUSBAND AND WIFE. 105
1. The first of these legal disabilities is a -prior marriage,
or having another husband or wife living: in which case,
besides the penalties consequent upon it as a felony, the
second marriage is to all intents and purposes void. 5
2. The next legal disability is want of age. If a boy
under fourteen or a girl under twelve years of age marries,
this marriage is only inchoate and imperfect ; and when
either of them comes to the age of consent aforesaid, they,
may disagree and declare the marriage void, without any
divorce or sentence in the spiritual court. And in our law
it is so far a marriage, that if at the age of consent they
agree to continue together, they need not be married again.
If the husband be of years of discretion and the wife under
twelve, when she comes to years of discretion he may dis-
agree as well as she may, for in contracts the obligation
must be mutual; both must be bound, or neither. And so
it is, vice versa, when the wife is of years of discretion and
the husband under. 6
3. Another incapacity arises from want of consent of
parents or guardians. [437] By the common law, if the
parties themselves were of the age of consent, there wanted
no other concurrence to make the marriage valid; and this
was agreeable to the canon law. But by several statutes
penalties of 100/. are laid on every clergyman who marries
a couple either without publication of banns, which may
give notice to parents or guardians, or without a license, to
obtain which the consent of parents or guardians must be
sworn to. 7
5. This is universally the law In ture is voidable, although the adult
this country. is bound. Holt v. Ward Clarencieux,
6. The age of consent has been 2 Strange, 937; s. c., id. 850; 1 Bar-
changed by statute in some states. ' nard K. B. 247, 277, 333; 2 id. 12,
]n Illinois it is 17 for males and 14 173, 176; Swell's Lead. Cases (1st
for females. In New York the ages Ed.), 50, where the cases are quite
are respectively 18 and 16; in Michi- fully collected.
gan 18 and 16. Consult the local 7. A marriage solemnized without
statutes. See R. S. 111., ch. 89. . such consent is not with us made
While a contract of marriage by an void, neither is it now void in Eng-
infant above the age of consent is land. See local statutes,
valid, a contract to marry in the fu-
106 OF HUSBAND AND WIFE. [BOOK I.
4. A fourth incapacity is want of reason, without a com-
petent share of which, as no other, so neither can the matri-
monial contract be valid. It was formerly adjudged that
the issue of an idiot was legitimate, and consequently that
his marriage was valid. The civil law judged much more
sensibly when it made such deprivations of reason a previ-
ous impediment, though not a cause of divorce if they hap-
pened after marriage. [439] And modern resolutions have
adhered to the reason of the civil law, by determining that
the marriage of a lunatic, not being in a lucid interval, was-
absolutely void. 8
Lastly, the parties must not only be willing and able to
contract, but actually must contract themselves in due form
of law, to make it a good civil marriage. Any contract
made per verba de presenti, or in words of the present tense,
and in case of cohabitation per verba de futuro 9 also, be-
tween persons able to contract, was before the late act
deemed a valid marriage to many purposes, and the parties
might be compelled in the spiritual courts to celebrate it
in facie ecclesiae.^ But these verbal contracts are [by
statute] now of no force to compel a future marriage.
Neither is any marriage at present valid that is not cele-
brated in some parish church or public chapel, unless by
dispensation from the Archbishop of Canterbury. It must
also be preceded by publication of banns or by license from
the spiritual judge. Many other formalities are likewise
prescribed by the act, the neglect of which, though penal,
does not invalidate the marriage. It is held to be also
essential to a marriage that it be performed by a person in
orders, though the intervention of a priest to solemnize this
contract is merely juris posit iri 1 and not juris naturatts aut
dirini; it being said that Pope Innocent III. was the first
who ordained the celebration of marriage in the church,
before which it was totally a civil contract. [440] And in
8. Middleborough v. Rochester, 12 9. In words of the future.
Mass. 363; Wightman v. Wightman, 9a. In face of the church.
4 John. Ch. 343; Ewell's Lead. Cae. 1. Of positive laws, and not of nat-
(Isi Ed.), 600-610, and notes. ural or divine law.
CHAP. XV.] OF HUSBAND AND WIFE. 107
the times of the grand rebellion all marriages were per-
formed by the justices of the peace, and these marriages
were declared valid, without any fresh solemnization, by
stat. 12 Car. II. c. 33. But as the law now stands we may
upon the whole collect that no marriage by the temporal
law is ipso facto 2 void that is celebrated by a person in
orders, in a parish church or public chapel, or elsewhere by
special dispensation, in pursuance of banns or a license, be-
tween single persons, consenting, of sound mind, and of the
age of twenty-one years, or of the age of fourteen in males
and twelve in females, with consent of parents or guardians,
or without it in case of widowhood. And no marriage is
voidable by the ecclesiastical law after the death of either
of the parties, nor during their lives, unless for the canoni-
cal impediments of precontract, if that indeed still exists,
of consanguinity, and of affinity, or corporal imbecility,
subsisting previous to their marriage. 3
II. I am next to consider the manner in which marriages
may be dissolved, and this is either by death or divorce.
There are two kinds of divorce, the one total, the other
partial; the one a vinculo matrimonii, the other merely a
mensa et thoro. The total divorce, a vinculo matrimonii, 4
must be for some of the canonical causes of impediment
before mentioned, and those existing before the marriage,
as is always the case in consanguinity; not supervenient, or
arising afterwards, as may be the case in affinity or corporal
imbecility. For in cases of total divorce, the marriage is
declared null, as having been absolutely unlawful ab initio,, 5
and the parties are therefore separated pro salute anima-
rum? for which reason, as was before observed, no di-
vorce can be obtained but during the life of the parties.
2. In fact. United States, except in some states
3. " The doctrine that the inter- where local statutes have provided
vention of a person in holy orders is otherwise." Id,
essential to marriage has found small 4. From the bonds of matrimony,
support in this country." 1 Bish. 5. From the beginning.
Mar. & Div., 279. " Marriage by 6. For the safety of their souls,
mere consent is good throughout the
108 OF HUSBAND AND WIFE. [BOOK I.
The issue of such marriage as is thus entirely dissolved are
bastards. 7
Divorce a mensa et thoro is when the marriage is just and
lawful ab initio, and therefore the law^ is tender of dissolv-
ing it; but, from some supervenient cause, it becomes im-
proper or impossible for the parties to live together, as in
the case of intolerable ill-temper or adultery in either of
the parties. 8 [441] With us in England adultery is only
a cause of separation from bed and board [but now ground
for divorce a vinculo, 20 & 21 Viet. c. 85, 27]. However,
divorces a vinculo matrimonii for adultery have of late
years been frequently granted by act of parliament. 9
In case of divorce a mensa et thoro the law allows alimony
to the wife, which is that allowance which is made to a
woman for her support out of the husband's estate, being
settled at the discretion of the ecclesiastical judge on con-
sideration of all the circumstances of the case. 1 It is gen-
erally proportioned to the rank and quality of the parties.
[442] But in case of elopement and living with an adulterer
the law allows her no alimony.
III. Lastly, the legal consequences of marriage or di-
vorce.
By marriage, the husband and wife are one person in law;
that is, the very being or legal existence of the woman is
suspended during the marriage, or at least is incorporated
7. In the United States divorces a prescribed by statute and vary in
vinculo are granted for causes arising the different states. In South Caro-
after marriage, e. g., for adultery, lina divorce is not granted. Consult
desertion, etc., and in such case the the local statutes.
issue are not bastardized. What the 9. Generally prohibited by consti-
author calls a divorce a vinculo, cor- tution in this country,
responds to a decree of nullity with 1. Allowed almost of course before
us. See Wightman v. Wightman, 4 decree in all cases of bills for divorce
John. Ch. 343; Ewell's Lead. Cases as temporary alimony for counsel
(1st Ed.), 602. fees, support, etc.. pending the litiga-
8. A divorce a mensa et thoro (from tion; and after decree as permanent
bed and board) may be had in the alimony for the support of the wife
United States and is merely a judicial and children if the equity of the case
separation, the marriage bond not be- warrants it.
ing annulled. Causes for divorce are
CHAP. XV.] OF HUSBAND AND WIFE. 109
and consolidated into that of the husband, under whose
wing, protection, and cover she performs everything, and
is therefore called in our law-French a feme-covert, foemina
viro co-operta, is said to be covert-baron., or under the pro-
tection and influence of her husband, her laron, or lord,
and her condition during her marriage is called her cover-
ture. Upon this principle, of an union of person in husband
and wife, depend almost all the legal rights, duties, and
disabilities that either of them acquire by the marriage. I
speak not at present of the rights of property, but of such
as are merely personal. For this reason a man cannot grant
anything to his wife or enter into covenant with her, for the
grant would be to suppose her separate existence, and to
covenant with her would be only to covenant with himself;
and therefore it is also generally true that all compacts
made between husband and wife when single are voided by
the intermarriage. 2 A woman, indeed, may be attorney
for her husband, for that implies no separation from, but
is rather a representation of, her lord. And a husband may
also bequeath anything to his wife by will, for that cannot
take effect till the coverture is determined by his death.
The husband is bound to provide his wife with necessaries
by law as much as himself, and if she contracts debts for
them he is obliged to pay them; 3 but for anything besides
necessaries he is not chargeable. Also, if a wife elopes and
lives with another man, the husband is not chargeable even
for necessaries, at least if the person who furnishes them is
sufficiently apprised of her elopement. [443] If the wife
2. See a collection of leading cases 3. The husband is still prima facie
with notes upon the common law dis- liable for necessaries during cohabita-
abilities of coverture in EwelPs Lead, tion on the ground of implied author-
Cas. (1st Ed.), 245-521. ity as his agent. When the husband
In most of the United States these supports his wife, she has no power
disabilities have to a large but vary- to pledge his credit even for neces-
ing extent been removed by statute, saries, unless in fact authorized. If
Consult the local statutes, remember- he fails to support her, she may bind
ing that unless an entirely new sys- him for necessaries whether author-
torn has been introduced, statutes in ized or not. Tiffany, Dom. Rel. (2d
derogation of common law should be Ed.), 126, 127.
strictly construed.
110 OF HUSBAND AND WIFE. [BOOK T.
be indebted before marriage the husband is bound after-
wards to pay the debt, for he has adopted her and her cir-
cumstances together. 4 If the wife be injured in her person
or her property she can bring no action for redress without
her husband's concurrence, and in his name as well as her
own; neither can she be sued without making the husband
a defendant. 5 There is indeed one case where the wife shall
sue and be sued as a feme sole, viz., where the husband has
abjured the realm or is banished, for then he is dead in law,
and the husband being thus disabled to sue for or defend
the wife, it would be most unreasonable if she had no
remedy, or could make no defence at all. In criminal prose-
cutions, it is true, the wife may be indicted and punished
separately, for the union is only a civil union. 6 But in trials
of any sort they are not allowed to be evidence for or
against each other, 7 partly because it is impossible their
testimony should be indifferent, but principally because of
the union of person, and therefore, if they were admitted
to be witnesses for each other, they would contradict one
maxim of law, " nemo in propria causa testis esse debet," 8
and, if against each other, they would contradict another
maxim, " nemo tenetur seipsiim accusare." 9 But where the
offence is directly against the person of the wife, this rule
has been usually dispensed with.
But though our law in general considers man and -wife as
one person, yet there are some instances in which she is
separately considered, as inferior to him, and acting by his
compulsion. [444] And therefore all deeds executed and
acts done by her during her coverture are void, except it be
4. This rule has been generally 7. In some of the states the corn-
abolished by statute in this country. mon law rule prevails, in others it
5. In many states she may sue and has been changed by statute so as to
be sued as a feme sole. See local allow husband and wife to testify
statutes. for but not against each other. Con-
6. See 4 Black. Com. 22, 28, post; suit the local statutes.
McClain's Cr. L. 145, 147; 1 Bish. 8. No one ought to be a witness in
Cr. L. (7th Ed.) 357, 362, as to his own cause.
the presumption of coercion arising 9. No one is bound to accuse him-
from the husband's presence. self.
CHAP. XV.] OF HUSBAND AND WIFE. Ill
a fine, or the like matter of record, in which case she must
loe solely and secretly examined, to learn if her act be volun-
tary. She cannot by will devise lands to her husband, un-
less under special circumstances, for at the time of making
it she is supposed to be under his coercion. 1 And in some
felonies and other inferior crimes, committed by her through
constraint of her husband [and in his presence], the law
excuses her; but this extends not to treason or murder. 2
The husband, also, by the old law, might give his wife
moderate correction. 3 For, as he is to answer for her mis-
behavior, the law thought it reasonable to intrust him
with this power of restraining her by domestic chastise-
ment, in the same moderation that a man is allowed to cor-
rect his apprentices or children, for whom the master or
parent is also liable in some cases to answer. But this
power of correction was confined within reasonable bounds,
and the husband was prohibited from using any violence
to his wife, aliter quarn ad virum, ex causa regiminis et
castigationis, uxoris suae, licite et rationabiliter pertinet.*
A wife may now have security, of the peace against her hus-
band, or, in return, a husband against his wife. [445] Yet
the lower rank of people, who were always fond of the old
common law, still claim and exert their ancient privilege,
and the courts of law will still permit a husband to restrain
a wife of her liberty in case of any gross misbehavior.
1. See as to the common law rules, States. See Washburn's Manual of
Ewell's Lead. Cases (1st Ed.), 245- Cr. L., 28; McClain's Cr. L., 243;
521, and notes. These disabilities Harris v. State, 71 Miss. 462; State
have, as before stated, been more or v. Oliver, 70 N. C. 60; Com. v. Mc-
less completely removed by statute Affee, 108 Mass. 458. See, however,
in this country. Consult the local contra, State v. Black, 1 Winst. 286 ;
statutes. State v. Rhodes, Phill. 453; State v.
2. Bishop and Wharton do not ex- Mabrey, 64 N. C. 592; State v.
cept murder and treason. 1 Bish. Cr. Edens, 95 N. C. 693; Bradley v. State,
L. (7th Ed.), 358; 1 Whart. Cr. L. 1 Walk. (Miss.) 156.
(8th Ed.), 78. She is prima facie 4. Otherwise than lawfully and
under his constraint, but this may be reasonably belong to the husband for
rebutted. See note, supra. proper government and correction of
3. Not now the law in the United his wife.
112 Or PARENT AND CHILD. [BOOK I.
CHAPTER XVI.
OF PARENT AND CHILD.
Children are of two sorts, legitimate, and spurious, or
bastards. [446]
I. A legitimate child is he that is born in lawful wedlock,
or within a competent time afterwards. " Pater est quern
nuptiae demonstrant "* is the rule of the civil law, and this
holds with the civilians whether the nuptials happen before
or after the birth of the child. 6 With us in England the
rule is narrowed, for the nuptials must be precedent to the
birth.
1. First, the duties of parents to legitimate children
principally consist in three particulars, their maintenance,
their protection, and their education.
The duty of parents to provide for the maintenance of
their children is a principle of natural law. [447] And the
children will have the perfect right of receiving maintenance
from their parents.
It is a principle of our law that there is an obligation on
every man to provide for those descended from his loins,
and the manner in which this obligation shall be performed
is thus pointed out [by the statute 43 Eliz. c. 2]. The father
and mother, grandfather and grandmother of poor impotent
persons shall maintain them at their own charges, if of
sufficient ability, according as the quarter session shall
direct; and [stat. 5 Geo. I. c. 8] if a parent runs away and
leaves his children, the churchwardens and overseers of
the parish shall seize his rents, goods, and chattels, and
5. He is the father whom the imp- Scotland. See Swell's Med. Jur. (2d
tials point out. Ed.), 181. See also the peculiar stat-
6. In Illinois " an illegitimate child, ute of New Mexico respecting ac-
whose parents have intermarried, and knowledging the child in writing,
whose father has acknowledged him Doubtless there are other statutes
or her as his child, shall be consid- affecting the subject, but in the ab-
ered legitimate." R. S. 111. Descent, sence of statute the common law rule
ch. 39, sec. 3. This is the general prevails.
rule in continental Europe and in
CHAP. XVI.] OF PARENT AND CHILD. 113
dispose of them toward their relief. By the interpretations
which the courts of law have made upon these statutes, if a
mother or grandmother marries again, and was before such
second marriage of sufficient ability to keep the child, the
husband shall be charged to maintain it; for this, being a
debt of hers when single, shall, like others, extend to charge
the husband. But at her death, the relation being dissolved,
the husband is under no further obligation. 7 [449]
No person is bound to provide a maintenance for his issue
unless where the children are impotent and unable to work,
either through infancy, disease, or accident, and then is only
obliged to find them with necessaries, the penalty on refusal
being no more than 20s. a month.
Our law has made no provision to prevent the disinherit-
ing of children by will, leaving every man's property in his
own disposal upon a principle of liberty in this as well as
every other action. 8 [450] Heirs and children are favor-
ites of our courts of justice, and cannot be disinherited by
any dubious or ambiguous words, there being required the
utmost certainty of the testator's intentions to take away
the right of an heir.
Protection is also a natural duty, but rather permitted
than enjoined by any municipal laws; natural in this re-
spect, working so strongly as to need rather a check than a
spur. A parent may by our laws maintain and uphold his
children in their lawsuits without being guilty of the legal
crime of maintaining quarrels. A parent may also justify
an assault and battery in defence of the persons of his
children. 9
7. Independently of the express en- rule is enforced as in the case of hus-
actment in 43 Eliz., c. 2. and other band and wife, irrespective of the ex-
subsequent statutes, there is no legal istence of the relation of agency. See
obligation at common law on a par- Tiffany, Dom. Rel., 251; Gilley v. Gil-
ent to maintain his child. The sub- ley, 79 Me. 292; Brow v. Brightman,
ject is generally regulated by statute 136 Mass. 187; Pretzinger v. Pretzin-
in the United States. Mortimore v. ger, 45 0. St. 452.
Wright, 6 M. & W. 482; Kelly v. 8. This is a general rule of the corn-
Davis, 49 N. H. 176; Browne, Dom. mon law in this country.
Rel., 72. In some of the states, how- 9. This is also the law in the United
ever, it is otherwise and the same States.
114? OF PARENT AND CHILD. [BOOK I.
The last duty of parents to their children is that of giving
them an education suitable to their station in life, a duty
pointed out by reason, and of far the greater importance of
any. 1 Our laws, though their defects in this particular
cannot be denied, have in one instance made a wise pro-
vision for breeding up the rising generation, since the poor
and laborious part of the community, when past the age of
nurture, are taken out of the hands of their parents by the
statutes for apprenticing poor children, and are placed out
by the public in such a manner as may render their abilities
in their several stations of the greatest advantage to the
commonwealth. [451]
2. The power of a parent over his children by our English
laws is much more moderate [than that given by the Roman
law], but still sufficient to keep the child in order and
obedience. [452) He may lawfully correct his child, being
under age, in a reasonable manner, for this is for the benefit
of his education. 2 The consent or concurrence of the parent
to the marriage of his child under age was also directed by
our ancient law to be obtained; but now it is absolutely
necessary, for without it the contract is void. [See ante.}
A father has no other power over his son's estate than as
his trustee or guardian; 3 for though he may receive the
profits during the child's minority, yet he must account for
them when he comes of age. [453] He may indeed have
the benefit of his children's labor while they live with him
and are maintained by him, but this is no more than he is
entitled to from his apprentices or servants. 4 The legal
power of a father for a mother, as such, is entitled to no
power, but only to reverence and respect over the persons
1. This is a moral and not a legal school teacher. See, generally. Tif-
obligation unless made such by stat- fany, Dom. Rel., 264, and cases cited;
ute, as is the case in some states. Browne, Dom. Rel., 75.
Consult the local statutes. See 3. Tiffany, Dom. Rel., 306, and
Browne, Dom. Rel., 71 ; Tiffany, Dom. cases cited.
Rel., 259. 4. Tiffany, Dom. Rel., 276. On the
2. So in this country. The right father's death the mother has the
extends also to one in loco parentis same right. Id.
(in the place of the parent), as a
CHAP. XVI.] OF PARENT AND CHILD. 115
of his children ceases at the age of twenty-one. 5 Yet till
that age arrives this empire of the father continues even
after his death, for he may by his will appoint a guardian
to his children. He may also delegate part of his -parental
authority, during his life, to the tutor or schoolmaster of
his child, who is then in loco parentis, and has sueh a portion
of the power of the parent committed to his charge, viz., that
of restraint and correction, as may be necessary to answer
the purposes for which he is employed. 531
3. The duties of children to their parents arise from a
principle of natural justice and retribution. For to those
who gave us existence we naturally owe subjection and
obedience during our minority, and honor and reverence
ever after. And the Athenian laws carried this principle
into practice with a scrupulous kind of nicety, obliging all
children to provide for their father when fallen into poverty,
with an exception to spurious children, to those whose
chastity had been prostituted by consent of the father, and
to those whom he had not put in any way of gaining a liveli-
hood. [454]
Our laws agree with those of Athens with regard to the
first only of these particulars, the case of spurious issue.
In the other cases the law does not hold the tie of nature to
be dissolved by any misbehavior of the parent, and there-
fore a child is equally justifiable in defending the person or
maintaining the cause or suit of a bad parent as a good one,
and is equally compellable [but by statute only; see 43 Eliz.
c. 2.], if of sufficient ability, to maintain and provide the
a wicked and unnatural progenitor, as for one who has
shown the greatest tenderness and parental piety. 6
II. Illegitimate children, or bastards.
1. Who are bastards. A bastard by our English laws is
5. The age of majority is 21 in Turball, 1 Kehle, 589; State v. Clarke,
this country. In Illinois women, by 3 Harring. 557.
statute, become of age at 18. An 5a. See note, supra.
infant reaches his majority at the be- 6. Unless the duty is imposed by
ginning of the day next preceding the statute a child is under no legal obli-
21st anniversary of his birth. Ewell's gation to support his parents. Tif-
Lead. Cases (1st Ed.), 1; Herbert v. fany, Dom. Rel., 311, and cases cited.
116 OF PARENT AND CHILD. [BOOK I.
one that is not only begotten, but born out of lawful matri-
mony. 7 The civil and canon laws do not allow a child to
remain a bastard if the parents afterwards intermarry; and
herein they differ most materially from our law, which,
though not so strict as to require that the child shall be
begotten, y.et makes it an indispensable condition, to make
it legitimate, that it shall be born after lawful wedlock. 8
[455] All children born before matrimony are bastards by
our law; and so it is of all children born so long after the
deatli of the husband that, by the usual course of gestation,
they could not be begotten by him. [456] But this being
a matter of some uncertainty, the law is not exact as to a
few days. 9 And this gives occasion to a proceeding at com-
mon law, where a widow is suspected to feign herself with
child in order to produce a suppositions heir to the estate.
In this case with us the heir presumptive may have a writ
de vcntre inspiciendo to examine whether she be with child
or not, and if she be, to keep her under proper restraint till
delivered. But if the widow be upon due examination
found not pregnant, the presumptive heir shall be admitted
to the inheritance, though liable to lose it again on the birth
of a child within forty weeks from the deatli of a husband.
But if a man dies and his widow soon after marries again,
and a child is born within such a time as that by the course
of nature it might have been the child of either husband,
in this case he is said to be more than ordinarily legitimate,
for he may when he arrives to years of discretion choose
which of the fathers he pleases. 1 [457]
As bastards may be born before the coverture or marriage
state is begun or after it is determined, so also children born
during wedlock may in some circumstances be bastards.
7. See 2 Taylor's Med. Jur. (3d ject of legitimacy is considered at
Am. Ed.), 241; Swell's Med. Jur. (2d length.
Ed.}, 181. 1. It is "a question for the jury
8. See R. S. 111., ch. 39, sec. 3; to determine according to the evi-
Ewell's Med. Jur. (2d Ed.), 181. dence which husband was most likely
9. See, generally, Ewell'e Med. Jur. to be the father." 1 Broom & Hadley
(2d Ed.), 181 et seq., where the sub- Com., 561, citing Co. Litt. by Harg.,
123b, n. 1.
CHAP. XVI.] OF PARENT AND CHILD. 117
As if the husband be out of the kingdom of England, or, as
the law somewhat loosely phrases it, extra qnatuor maria, 2
for above nine months, so that no access to his wife can be
presumed, her issue during that period shall be bastards.
But generally during the coverture access of the husband
shall be presumed unless the contrary can be shown, which
is such a negative as can only be proved by showing him to
be elsewhere; for the general rule is, praesnmitur pro legiti-
matione* In a divorce a mensa et tlioro, if the wife breeds
children they are bastards, for the law will presume the
husband and wife comfortable to the sentence of separation
unless access be proved; but in a voluntary separation by
agreement the law will suppose access unless the negative
be shown. So also if there is an apparent impossibility of
procreation on the part of the husband, as if he be only
eight years old, or the like, there the issue of the wife shall
be bastards. Likewise, in case of divorce in the spiritual
court a rinculo m-atrimonii, all the issue born during the
coverture are bastards, because such divorce is always upon
some cause that rendered the marriage unlawful and null
from the beginning. [458]
2. The duty of parents to their bastard children by our
law is principally that of maintenance. For though bast-
ards are not looked upon as children to any civil purposes,
yet the ties of nature, of which maintenance is one, are not
so easily dissolved. And they hold, indeed, as to many
other intentions: as, particularly, that a man shall not
marry his bastard sister or daughter.
When a woman is delivered, or declares herself with
child, of a bastard, and will by oath before a justice of peace
charge any person as having got her with child> the justice
shall cause such person to be apprehended, and commit him
till he gives security, either to maintain the child, or appear
at the next quarter sessions to dispute and try the fact.
But if the woman dies, or is married before delivery, or
2. Beyond the four seas. This is legitimacy. The burden of proof ia
no longer law. 1 Broom & Hadley with him who alleges the illegitimacy.
Com.. 562. See 1 Broom & Hadley Com., 562;
3. The presumption is in favor of Ewell's Med. Jur., ch. 15.
118 OF PARENT AND CHILD. [Boon I.
miscarries, or proves not to have been with child, the person
shall be discharged; otherwise the sessions, or two justices
out of sessions, upon original application to them, may take
order for the keeping of the bastard, by charging the
mother or the reputed father with the payment of money
or other sustentation for that purpose. And if such puta-
tive father or lewd mother run away from the parish, the
overseers, by direction of two justices, may seize their rents,
goods, and chattels, in order to bring up the said bastard
child. 4
3. I proceed next to the rights and incapacities which
appertain to a bastard. [459] The rights are very few,
being only such as he can acquire,, for he can inherit nothing,
being looked upon as the son of nobody. 5 Yet he may gain
a surname by reputation, though he has none by inheritance.
All other children have their primary settlement in their
father's parish; but a bastard in the parish where born, for
he hath no father. However, in case of fraud, as if a woman
be sent either by order of justice, or comes to beg as a va-
grant, to a parish where she does not belong to, and drops
her bastard there, the bastard shall, in the first case, be
settled in the parish from whence she was illegally removed ;
or, in the latter case, in the mother's own parish, if the
mother be apprehended for her vagrancy. Bastards also
born in any licensed hospital for pregnant women are
settled in the parishes to which the mothers belong. The
incapacity of a bastard consists principally in this, that he
cannot be heir to any one, neither can he have heirs but of
his own body; for, being nuUius fiJius, he is therefore of kin
to nobody, and has no ancestor from whom any inheritable
blood can be derived. 6 A bastard may, lastly, be made
legitimate, and capable of inheriting, by the transcendent
pow r er of an act of parliament, and not otherwise.
4. Consult the local statutes on the tis' Ed.), ch. 39, f 2; Miller v. Wil-
eubject of Bastards. liams, 66 111. 91; Stoltz v. Doering,
5. Consult the local statutes which 112 111. 234; Elder v. Bales, 127 111.
in some states have modified the 425; 1 N. Y. R. St. 753.
harshness of the common law on this 6. See note 2, supra.
subject. See R. S. 111. (Starr & Cur-
CHAP. XVI I.] OF GUARDIAN AND WARD.
CHAPTER XVII.
OF GUARDIAN AND WARD.
A guardian is only a temporary parent, that is, for so
long time as the ward is an infant, or under age. [460]
1. The guardian with us performs the effice both of the
tutor and curator of the Roman laws; the former of which
had the charge of the maintenance and education of the
minor, the latter the care of his fortune, or, according to
the language of the court of chancery, the tit tor was the
committee of the person, the curator the committee of the
estate. But this office was frequently united in the civil
law, as it is always in our law with regard to minors, though
as to lunatics and idiots it is commonly kept distinct.
Of the several species of guardians, the first are guard-
ians by nature: viz., the father, and in some cases the mother
of the child. For if an estate be left to an infant, the father
is by common law the guardian, and must account to his
child for the profits. [461] And with regard to daughters,
it seems by construction of the statute 4 and 5 Ph. and Mar.
c. 8, that the father might by deed or will assign a guardian
to any woman-child under the age of sixteen; and, if none
be so assigned, the mother shall in this case be guardian.
There are also guardians for nurture, which are, of course,
the father or mother, till the infant attains the age of four-
teen years ; and in default of father or mother, the ordinary
usually assigns some discreet person to take care of the
infant's personal estate, and to provide for his maintenance
and education. 7 Next are guardians in socage, who are also
7. The father and in case of his the infant's property. . Where the in-
death the mother, and, if both par- fant has property a guardian should
ents are dead, then the next of kin be appointed according to the provi-
are the natural guardians of the in- sions of the local statutes by which
fant and entitled to his custody dur- this subject is very generally regu-
ing infancy, if there is no sufficient lated in the several states. See Tif-
r<ason to the contrary. He has, how- fany, Dom. Rel., 316-318.
ever, as such guardian no power over
120 OF GUARDIAN AND WARD. [BOOK I.
called guardians l>y the common law. These take place only
when the minor is entitled to some estate in lands, and then
by the common law the guardianship devolves upon his
next of kin to whom the inheritance cannot possibly de-
scend. These guardians in socage, like those for nurture,
continue only till the minor is fourteen years of age; for
then, in both cases, he is presumed to have discretion so
far as to choose his own guardian. [462] This he may do,
unless one be appointed by the father, by virtue of the
statute 12 Car. II. c. 24, which, considering the imbecility
of judgment in children of the age of fourteen, and the
abolition of guardianship in chivalry (which lasted till the
age of twenty-one, and of which we shall speak hereafter),
enacts that any father, under age or of full age, may by
deed or will dispose of the custody of his child, either born
or unborn, to any person, except a popish recusant, either in
possession or reversion, till such child attains the age of one
and twenty years. These are called guardians by statute,
or testamentary guardians. 8
The power and reciprocal duty of a guardian and ward
are the same, pro tempore, as that of a father and child;
and therefore I shall not repeat them, but shall only add
that the guardian, when the ward comes of age, is bound to
give him an account of all that he has transacted on his
behalf, and must answer for all losses by his wilful default
or negligence. [463] In order, therefore, to prevent dis-
agreeable contests with young gentlemen, it has become a
practice for many guardians, of large estates especially, to
indemnify themselves by applying to the Court of Chancery,
acting under its direction, and accounting annually before
the officers. of that court. For the Lord Chancellor is, by
right derived from the crown, the general and supreme
guardian of all infants, as well as idiots and lunatics. In
case, therefore, any guardian abuses his trust, the court will
check and punish him; nay, sometimes will proceed to the
removal of him, and appoint another in his stead. 9
8. The provisions of this statute statutes. See Tiffany, Dom. Rel.,
have been substantially re-enacted in 318.
many of the states. Consult the local 9. In the United States jurisdiction
CHAP. XVII.] OF GUARDIAN AND WAED. 121
2. The ages of male and female are different for different
purposes. A male at twelve years old may take the oath
of allegiance; at fourteen is at years of discretion, and there-
fore may consent or disagree to marriage, may choose his
guardian, and, if his discretion be actually proved, may
make his testament of his personal estate; at seventeen may
be an executor; and at twenty-one is at his own disposal,
and may alien his lands, goods, and chattels. A female
also at seven years of age may be betrothed or given in
marriage; at nine is entitled to dower; at twelve is at years
of maturity, and therefore may consent or diagree to mar-
riage, and, if proved to have sufficient discretion, may be-
queath her personal estate; at fourteen is at years of legal
discretion, and may choose a guardian; at seventeen may be
executrix; and at twenty-one may dispose of herself and her
lands. So that full age in male or female is twenty-one
years, which age is completed on the day preceding the
anniversary of a person's birth, who till that time is an
infant, and so styled in law.
3. Infants have various privileges and various disabili-
ties; but their very disabilities are privileges, in order to
secure them from hurting themselves by their own improvi-
dent acts. An infant cannot be sued but under the protec-
tion, and joining the name of his guardian, for he is to de-
fend him against all attacks as well by law as otherwise;
but he may sue either by his guardian or prochein amy, 9 *
his next friend who is not his guardian. This prochein amy
may be any person who will undertake the infant's cause;
and it frequently happens that an infant, by his prochein
amy, institutes a suit in equity against a fraudulent guar-
dian. 1 In criminal cases, an infant of the age of fourteen
over guardianship is usually by stat- 9a. Next friend,
ute vested in probate, surrogate, or- 1. It is well settled that an infant
phans', or county courts. Courts of defendant cannot appear in person or
chancery, however, in the absence of by attorney; but must appear by
prohibitory statutory provisions, have guardian (ad litem for the particular
jurisdiction to appoint guardians over case, if he has no general guardian) ;
the persons and property of infants, and the guardian must be a real and
Tiffany, Dom. Eel., 320. not a fictitious person, such as " John
122 OF GUARDIAN AND WAED. [BOOK I.
years may be capitally punished for any capital offence,
but under the age of seven he cannot. The period between
seven and fourteen is subject to much uncertainty, for the
infant shall, generally speaking, be judged prima facie inno-
cent; yet if he was doli capax, and could discern between
good and evil at the time of the offence committed, he may
be convicted and undergo judgment and execution of death,
though he hath not attained to years of puberty or dis-
cretion. 2
With regard to estates and civil property, an infant hath
many privileges, which will be better understood when we
come to treat more particularly of those matters; but this
may be said in general, that an infant shall lose nothing by
non-claim, or neglect of demanding his right; nor shall any
other laches or negligence be imputed to an infant, except
in some very particular cases. [465]
It is generally true that an infant can neither aliene his
lands, nor do any legal act, nor make a deed, nor indeed
any manner of contract that will bind him. But still to all
these rules there are some exceptions, part of which were
just now mentioned in reckoning up the different capacities
which they 'assume at different ages; and there are others,
a few of which it may not be improper to recite. And first,
it is true that infants cannot aliene their estates; but infant
trustees, or mortgagees, are enabled to convey, under the
direction of the Court of Chancery or Exchequer, or other
courts of equity, the estates they hold in trust or mortgage,
to such person as the court shall appoint. Also it is gener-
ment. [466] It is, further, generally- true that an infant
who has had an advowson may present to the benefice when
it becomes void. An infant may also purchase lands, but
his purchase is incomplete; for when he comes to age he
may either agree or disagree to it, as he thinks prudent or
Doe." But after the appointment of a against them, fully considered in the
guardian, if an attorney appears and notes to Mills v. Dennis, 3 John. Ch.
pleads, it will be presumed that he is 367; s. c., Ewell's Lead. Cases (1st
properly authorized so to do. Seethe Ed.), 229-238; Tiffany, Dom. Rel.,
subject of appearance by infants and 323.
the effect of judgments and decrees 2. See post, Criminal Law.
CHAP. XVII.] OF GUARDIAN AND WARD.
123
proper, without alleging any reason; and so may liis heirs
after him if he dies without having completed his agree-
ment. [466] It is, further, generally true that an infant
under twenty-one can make no deed but what is afterwards
voidable; yet in some cases he may bind himself apprentice
by deed indented, or indentures, for seven years, and he
may by deed or will appoint a guardian to his children, if
he has any. Lastly, it is generally true that an infant can
make no other contract that will bind him; yet he may
bind himself to pay for his necessary meat, drink, apparel,
physic, and such other necessaries, and likewise for his
good teaching and instruction, whereby he may profit him-
self afterwards. 3
3. As to the liability of infants on
their contracts in England, see 37 &
38 Viet., ch. 62. In this country there
has been very little legislation on the
subject, which therefore remains very
much as at common law, though in-
volved in great conflict of authority.
Considering the conflict and the num-
ber of cases, about all that can be
done at this point is to state that
the general tendency of authority,
except as below stated, is to hold all
an infant's contracts voidable and not
void, though in some states powers
of attorney, appointments of agents,
contracts of suretyship, and bonds
with penalties are void.
Certain contracts are valid and
binding upon the infant. Such are
contracts created or authorized by
law, implied (not express) contracts
for necessaries and contracts to do
what the infant was legally bound
and compellable to do. See, gener-
ally, Tiffany, Dom. Rel., 386-425;
Ewell's Lead. Cases (1st Ed.), 3-188,
and notes.
The voidable (and not the void)
executory contracts of an infant may
be ratified by him after reaching ma-
jority, but, until so ratified, do not
bind him. Executed voidable con-
tracts on the other hand are binding
upon the infant till disaffirmed by
him. . Tiffany, Dom. Rel., 400-402, and
notes.
The voidable executory contracts of
an infant may be avoided by him dur-
ing infancy as well as afterwards. So
too all contracts respecting property
which are executed by delivery of
some article on payment of money
may be rescinded by the minor either
before or after majority; but convey-
ances of real property in fee, for life,
or for years, cannot be avoided till
the infant reaches full age. See, gen-
erally, Tiffany, Dom. Rel., 403 et seq.;
Ewell's Lead. Cases (1st Ed.), 92, 96,
notes; Reeve's Dom. Rel., *254.
An infant is liable upon his pure
torts not growing out of contract.
Homer v. Thwing, 3 Pick. 492;
Ewell's Lead. Cases (1st Ed.), 188,
206, note.
As to criminal liability, see post,
book 4.
124 OF CORPORATIONS. [BOOK I.
CHAPTEE XVIII.
OF CORPORATIONS.
As all personal rights die with the person, and as the
necessary forms of investing a series of individuals, one
after another, with the same identical rights, would be very
inconvenient if not impracticable, it has been found neces-
sary, when it is for the advantage of the public to have any
particular rights kept on foot and continued, to constitute
artificial persons, who may maintain a perpetual succession,
and enjoy a kind of legal immortality. [467]
These artificial persons are called bodies politic, bodies
corporate (corpora corporata), or corporations. When they
[the individuals composing a corporations] are consoli-
dated and united into a corporation, they and their succes-
sors are then considered as one person in law. [468] As
one person they have one will, which is collected from the
sense of the majority of the individuals. This one will may
establish rules and orders for the regulation of the whole,
which are a sort of municipal laws of this little republic, or
rules and statutes may be prescribed to it at its creation,
which are then in the place of natural laws. The privileges
and immunities, the estates and possessions of the corpora-
tion, when once vested in them will be forever vested with-
out any new conveyance to new successions; for all the in-
dividual members that have existed from the foundation to
the present time, or that shall ever hereafter exist, are but
one person in law, a person that never dies : in like man-
ner as the River Thames is still the same river, though the
parts which compose it are changing every instant.
The first division of corporation is into aggregate and
sole. 4 [469] Corporations aggregate consist of many persons
united together into one society, and are kept up by a per-
4. See generally as to the classifi-
cation of corporations, Clark on Corp.
(2d Ed.), 23.
CHAP. XVIIL] OF CORPORATIONS. 125
petual succession of members so as to continue forever.
Corporations sole consist of one person only and his succes-
sors, in some particular station, who are incorporated by
law in order to give them some legal capacities and advan-
tages, particularly that of perpetuity, which in their natural
persons they could not have had. In this sense the king is
a sole corporation; so is a bishop; so are some deans and
prebendaries, distinct from their several chapters; and so
is every parson and vicar. 5
Another division of incorporations, either sole or aggre-
gate, is into ecclesiastical and lay. [470] Ecclesiastical
corporations are where the members that compose them are
entirely spiritual persons, such as bishops, certain deans
and prebendaries, all archdeacons, parsons, and vicars,
which are sole corporations, deans and chapters at present,
and formerly prior and convent, abbot and monks, and the
like bodies aggregate. These are erected for the further-
ance of religion and perpetuating the rights of the church. 6
Lay corporations are of two sorts, civil and eleemosynary.
The civil are such as are erected for a variety of temporal
purposes. The king, for instance, is made a corporation to
prevent in general the possibility of an interregnum or
vacancy of the throne, and to preserve the possessions of the
crown entire. Other lay corporations are erected for the
good government of a town or particular district [471]
[with us called municipal corporations] ; 7 some for the ad-
5. Roman Catholic bishops hold the differ from that adopted in the case
title to church property in some of of corporations for pecuniary profit,
the states as corporations sole; there but they are not ecclesiastical corpo-
niay be other instances but they are rations in the sense of the text. See
very few. See Brunswick v. Dunning, R. S. 111., ch. 32 (Starr & Curtis'
7 Mass. 447; Westcott v. Fargo, 61 Ed.), ch. 32, sec. 35, and notes; Rob-
Jf. Y. 542; Overseers of Poor of Bos- ertson v. Bullions, 11 N. Y. 243.
ton v. Sears, 22 Pick. 122; Clark on 7. The literature on the subject of
Corporations (2d Ed.), 24. municipal corporations is voluminous.
6. In the United States religious Dillon on Municipal Corporations is
societies and eleemosynary corpora- in its 5th (1911) edition and com-
tions are, as a rule, incorporated un- prises 5 volumes; Abbott's work on
der general laws as lay corporations, the same subject (1905) comprises 3
The method of incorporation may volumes, and McQuillin's (1911) 6
126
OF CORPORATIONS.
[BOOK I.
vancement and regulation of manufactures and commerce,
and some for the better carrying on of divers special pur-
poses, as churchwardens, for conservation of the goods of
the parish, the college of physicians and company of sur-
geons in London, for the improvement of the medical
science, &c. The eleemosynary sort are such as are consti-
tuted for the perpetual distribution of the free alms or
bounty of the founder of them to such persons as he has
directed. Of this kind are all hospitals for the maintenance
of the poor, sick, and impotent, &c. And all these eleemosy-
nary corporations are, strictly speaking, lay and not ecclesi-
astical, even though composed of ecclesiastical persons, and
volumes. Others might be referred
to. See Bender's Law Book Cata-
logue, 1914, titles Municipal Bonds;
Municipal Law, etc.
The literature upon the general law
of corporations is even more volumin-
ous. See Bender's Law Catalogue,
titles Corporations; Foreign Corpora-
tions, etc.
Chief Justice Marshall thus de-
scribes a corporation : " A corpora-
tion is an artificial being, invisible,
intangible, and existing only in con-
templation of law. Being the mere
creature of the law, it possesses only
those properties which the charter of
its creation confers upon it, either
expressly or as incidental to its very
existence. These are such as are sup-
posed to be best calculated to effect
the object for which it is created.
Among the most important are im-
mortality, and, if the expression may
be allowed, individuality properties
by which a perpetual succession of
many persons are considered as the
same, and may act as a single indi-
vidual. They enable a corporation to
manage its own affairs and to hold
property without the perplexing in-
tricacy, the hazardous and endless
necessity of perpetual conveyances
for the purpose of transmitting it
from hand to hand. It is chiefly for
the purpose of clothing bodies of men
in succession with these qualities and
capacities, that corporations were
invented and are in us.'. By these
means a perpetual succession of indi-
viduals are capable of acting for the
promotion of the particular object
like one immortal being." Dartmouth
College v. Woodward, 4 Wheat. 636.
" Municipal corporations are bodies
politic and corporate of the general
character above described, established
by law, to share in the civil govern-
ment of the country, but chiefly to
regulate and administer the local or
internal affairs of the city, town or
district which is incorporated. Like
other corporations, they must be cre-
ated by statute. They possess no
powers or faculties not conferred upo
them either expressly or by fair im-
plications by the law which creates
them or other statutes applicable to
them." 1 Dillon's Mun. Corp. (2d
. Ed.), ch. 2, sec. 9a, 9b.
CHAP. XVIII.] OF CORPORATIONS. 127
although they in some things partake of the nature, privi-
leges, and restrictions of ecclesiastical bodies.
Let us next proceed to consider, 1. How corporations in
general may be created [472] ; 2. What are their powers,
capacities, and incapacities; 3. How corporations are
visited; and 4. How they may be dissolved.
I. With us in England the king's consent is absolutely
necessary to the erection of any corporation, either im-
pliedly or expressly given. The king's implied consent is
to be found in corporations which exist by force of the com-
mon law, to which our former kings are supposed to have
given their concurrence. Of this sort are the king himself,
all bishops, parsons, vicars, churchwarders, and some
others. Another method of implication, whereby the king 's
consent is presumed, is as to all corporations by prescrip-
tion, 8 such as the city of London and many others which
have existed as corporations, time whereof the memory of
man runneth not to the contrary, and therefore are looked
upon in law to be well created. [473] For though the mem-
bers thereof can show no legal charter of incorporation, yet
in cases of such high antiquity the law presumes there once
was one, and that by the variety of accidents which a length
of time may produce the charter is lost or destroyed. The
methods by which the king's consent is expressly given are
either by act of parliament or charter. By act of parlia-
ment, of whcih the royal assent is a necessary ingredient,
corporations may undoubtedly be created.
All the other methods, therefore, whereby corporations
exist, by common law, by prescription, and by act of parlia-
ment, are for the most part reducible to this of the king's
letters patent, or charter of incorporation. The king 's crea-
tion may be performed by the words " creamus, erigimus,
fimdamus, incorporamus,'' 9 or the like. Nay, it is held that
8. This doctrine has been frequently on Corp. (2d Ed.), 31, 6 Conn. 293.
applied in the United States as to See, also, Robie v. Sedgwick, 35 Barb,
municipal corporations. Jamison v. 319; Chittenden v. Chittenden, 1 Am.
Teople, 16 111. 257; Clark on Corp. Law Rep. 538.
(3d Ed.), 31. It has also been ap- 9. We create, erect, found, incorpo-
plled to private corporations. Clark rate.
128 OF CORPORATIONS. [BOOK I.
if the king grants to a set of men to have gildam mercato-
riam (a mercantile meeting or assembly) this is alone suffi-
cient to incorporate and establish them forever. [474]
The parliament, by its absolute and transcendent author-
ity, may perform this or any other act whatsoever. 1
The king, it is said, may grant to a subject the power of
erecting corporations, though the contrary was formerly
held : that is, he may permit the subject to name the persons
and powers of the corporation at his pleasure. But it is
really the king that erects, and the subject is but the instru-
ment; for though none but the king can make a corporation,
yet qui facit per alium, facit per se. 2
When a corporation is erected, a name must be given to
it; and by that name alone it must sue and be sued and do
all legal acts, though a very minute variation therein is not
material. [475] Such name is the very being of its consti-
tution, and, though it is the will of the king that erects the
corporation, yet the name is the knot of its combination,
without which it could not perform its corporate functions. 3
II. After a corporation is so formed and named it acquires
1. Corporations, of whatever sort, porations organized under or regu-
are with us almost entirely created lated by statute, and possessing prac-
by statute, either special or general, tically all the attributes of corpora-
though usually, and in some states tions except that of having a common
by constitutional provision, only by seal. In Westcott v. Fargo, 61 N. Y.
general law, private or special laws 542, the president or treasurer of such,
being prohibited by the constitution, an association was regarded for the
These general laws prescribe the pur- purposes of an action against the com-
poses for which and the methods by pany, substantially as a corporation
which incorporation may be effected, sole. For details as to these asso-
As they differ in the several states, ciations, see 2 Lindley on Part,
the local statutes should be consulted. (Ewell's Ed.), ch. 5. p. 758 et seq.
Besides .corporations, we have in 2. He who acts by another, acts
this country unincorporated so-called himself. Neither the president of the
joint stock companies, which, as a United States nor a governor of a
rule, are merely copartnerships and state has with us the power to create
subject to all the rules governing that a corporation.
branch of the law. See 2 Lindley on 3. See, generally, Clark on Corp.
Part. (Ewell's Ed.), ch. 5, p. 753. (2d Ed.), 83. Sometimes these are
We have also, principally in the statutory restrictions as to the name,
state of New York, joint stock cor- Id.
CHAP. XVIIL] OF CORPORATIONS. 123
many powers, rights, capacities, and incapacities, which we
are next to consider. Some of these are necessarily and in-
separably incident to every corporation, which incidents,
as soon as a corporation is duly erected, are tacitly annexed
of course. As, 1. To have perpetual succession. This is
the very end of its incorporation, for there cannot be a suc-
cession forever without an incorporation, and therefore all
aggregate corporations have a power necessarily implied of
electing members in the room of such as go off. 4 2. To sue
or be sued, implead or be impleaded, grant or receive by its
corporate name, and do all other acts as natural persons
may. 5 3. To purchase lands and hold them for the benefit
of themselves and their successors, which two are conse-
quential to the former. 6 4. To have a common seal. 7 For
a corporation, being an invisible body, cannot manifest its
intentions by any personal act or oral discourse ; it therefore
acts and speaks only by its common seal. [Seal not neces-
sary in the United States as to most acts.] 5. To make
t>y-laws 8 or private statutes for the better government of
the corporation, which are binding upon themselves, unless
contrary to the laws of the land [or unreasonable] , and then
they are void. These five powers are inseparably incident
to every corporation, at least to every corporation aggre-
gate; for two of them, though they may be practised, yet
are very unnecessary to a corporation sole, viz., to have a
corporate seal to testify his sole assent, and to make statutes
for the regulation of his own conduct.
There are also certain privileges and disabilities that
attend an aggregate corporation, and are not applicable to
such as are sole, the reason of them ceasing, and of course
the law. It must always appear by attorney. It can neither
maintain or be made defendant to an action of battery, or
such like personal injuries, for a corporation can neither
4. See Clark on Corp. (2d Ed.), 11, 5. Clark of Corp. (2d Ed.), 14. See
13. Private corporations are com- as to acts ultra vires, Id., ch. 6.
monly limited in duration by the stat- 6. Id., 17.
ute creating them to a certain num- 7. Id., 17.
ber of yeara. Id., note. . 8. Id., 17.
9
130 OF CORPORATIONS. [BOOK I.
beat nor be beaten in its body politic. 9 A corporation can-
not commit treason, or felony, or other crime, in its corpor-
ate capacity, though its members may in their distinct in-
dividual capacities. 1 Neither is it capable of suffering a
traitor's or felon's punishment, for it is not liable to cor-
poral penalties, nor to attainder, forfeiture, or corruption
of blood. [477] It cannot be executor or administrator,
or perform any personal duties, for it cannot take an oatli
for the due execution of the office. 2 It cannot be seised of
lands to the use of another, for such kind of confidence is
foreign to the end of its institution. 3 Neither can it be
committed to prison, for, its existence being ideal, no man
can apprehend or arrest it.
There are also other incidents and powers which belong
to some sort of corporations and not to others. An aggre-
gate corporation may take goods and chattels for the benefit
of themselves and their successors, but a sole corporation
cannot. 4 In ecclesiastical and eleemosynary foundations
the king or the founder may give them rules, laws, statutes,
and ordinances, which they are bound to observe; but cor-
porations merely lay, constituted for civil purposes, are
subject to no particular statutes, but to the common law
and to their own by-laws not contrary to the laws of the
9. ''A private corporation is liable nuisance. Id. 198 and cases cited in
for the torts of its servants and notes.
agents committed in the course of 2. Contra, if so authorized by its
their employment to the same extent charter. Id. 123 and cases cited,
as a natural person would be, and it 3. When authorized to take real
may be liable for, wrongs involving a and personal property, it may hold
mental element, as malicious wrongs, the same in trust; if the trust is re-
fraud, etc." Clark on Corp. (2d Ed.), pugnant to or inconsistent with the
193 et seq., where the cases are fully purposes of the corporation, it can-
collected, not be compelled to execute the trust;
1. While a corporation cannot com- but the court will appoint a new trus-
mit a crime involving a mental opera- tee to effectuate a trust otherwise
tion or personal violence, it may be unobjectionable. Id. 123, 124 and
criminally liable for the nonperform- cases cited,
ance of a duty imposed on it by law 4. Clark on Corp. (2d Ed.), 24; 2
and in most states for some acts of Kent Com., 273, 274.
misfeasance, such as maintaining a
CHAP.. X VIII.] OF CORPORATIONS. 131
realm. 5 [478] Aggregate corporations, also, that have by
their constitutions a head, as a dean, warden, master, or
the like, cannot do any acts during the vacancy of the head-
ship, except only appointing another; neither are they then
capable of receiving a grant, for such corporation is incom-
plete without a head. But there may be a corporation
aggregate constituted without a head. In aggregate cor-
porations, also, the act of the major part is esteemed the
act of the whole, With us any majority is sufficient to de-
termine the act of the whole body. 6
We before observed that it was incident to every corpora-
tion to have a capacity to purchase lands for themselves and
successors, and this is regularly true at the common law.
[479] But they are excepted out of the statute of wills, so
that no devise of lands to a corporation by will is good,
except for charitable uses, by statute 43 Eliz. c. 4, which
exception is again greatly narrowed by the statute 9 Geo.
II. c. 36. And also, by a great variety of statutes, their
privilege even of purchasing from any living grantor is
much abridged, so that now a corporation, either ecclesi-
astical or lay, must have a license from the king to purchase
before they can exert that capacity which is vested in them
by the common law; nor is even this in all cases sufficient.
These statutes are generally called the statutes of mort-
main, all purchases made by corporate bodies being said to
be purchases in mortmain, in mortua mami," 1 for the reason
that these purchases being usually made by ecclesiastical
bodies, the members of which (being professed) were reck-
oned dead persons in law, land therefore holden by them
might with great propriety be said to be held in mortua
manu. 8
The general duties of all bodies politic, considered in
their corporate capacity, may, like those of natural persons,
5. By-laws must be consistent with cept in Pennsylvania have not been
its charter and not unreasonable, adopted in this country. Clark on
Clark on Corp. (2d Ed.), 442, 444. Corp. (2d Ed.), 120; 2 Kent Com.,
6. But not ultra vires. Id. 430. 281-283; Methodist Church v, Rem-
7. In dead hand. ington, 1 Watts. 219; Kunyan v. Cos-
8. The statutes of mortmain ex- ter, 14 Peters, 122.
132 OF CORPORATIONS. [BooK I.
be reduced to this single one, that of acting up to the end
or design, whatever it be, for which they were created by
their founder. [480]
III. How may these corporations be visited.
The law has provided proper persons to visit, inquire into,
and correct all irregularities that arise in such corporations,
either sole or aggregate, and whether ecclesiastical, civil,
or eleemosynary. With regard to all ecclesiastical corpora-
tions the ordinary is their visitor, so constituted by the
canon law, and from thence derived to us. The pope form-
erly, and now the king, as supreme ordinary, is the visitor
of the archbishop or metropolitan; the metropolitan has the
charge and coercion of all his suffragan bishops, and the
bishops in their several dioceses are in ecclesiastical matters
the visitors of all deans and chapters, of all parsons and
vicars, and of all other spiritual corporations. With re-
spect to all lay corporations, the founder, his heirs or as-
signs, are the visitors whether the foundation be civil or
eleemosynary.
The founder of all corporations in the strictest and orig-
inal sense is the king alone, for he only can incorporate a
society; and in civil incorporations, such as a mayor and
commonalty, &c., where there are no possessions or endow-
ments given to the body, there is no other founder but the
king. But in eleemosynary foundations, such as colleges
and hospitals, where there is an endowment or lands, the
law distinguishes and makes two species of foundation: the
one fiuidatio incipiens, or the incorporation, in which sense
the king is the general founder of all colleges and hospitals ;
the other fitndatio perficicns, or the dotation of it, in which
sense the first gift of the revenues is the foundation, and he
w r ho gives them is in law the founder; and it is in this last
sense that we generally call a man the founder of a college
or hospital. [481] But here the king has his prerogative;
for if the king and a private man join in endowing an elee-
mosynary foundation, the king alone shall be the founder
of it. And in general, the king being the sole founder of
all civil corporations, and the endower the perficient founder
CHAP. XVIII. ] OF CORPORATIONS. 133
of all eleemosynary ones, the right of visitation of the
former results, according to the rule laid down, to the king,
and of the latter to the patron or endower.
The king being thus constituted by law visitor of all civil
corporations, the law has also appointed the place wherein
he shall exercise this jurisdiction, which is the Court of
King's Bench, 9 where, and where only, all misbehaviors of
this kind of corporations are inquired into and redressed,
and all their controversies decided.
As to eleemosynary corporations, by the dotation the
founder and his heirs are of common right the legal visitors,
to see that such property is rightly employed, as might
otherwise have descended to the visitor himself; but if the
founder has appointed and assigned any other person to
be visitor, then his assignee so appointed is invested with
all the founder's power, in exclusion of his heir. [482]
Eleemosynary corporations are chiefly hospitals or colleges
in the universities. And with regard to hospitals, if the
hospital be spiritual the bishop shall visit; but if lay, the
patron.
Whatever might be formerly the opinion of the clergy,
it is now held as established common law that colleges are
lay corporations, though sometimes totally composed of
ecclesiastical persons, and that the right of visitation does
not arise from any principles of the canon law, but of neces-
sity was created by the common law. By the common law
the office of 'visitor is to judge according to the statutes of
the college, and to expel and deprive upon just occasions,
and to hear all appeals of course; and from him and him
only the party grieved ought to have redress, the founder
9. As to the powers of the state tracts." Dartmouth College v. Wood-
over corporations, see, generally, ward, 4 Wheat. 518; Clark on Corp.
Clark on Corp. (3d Ed.), ch. 8. It is (2d Ed.), 202.
now well' settled that the charter of The legal process for inquiring into
a private corporation is a contract any excess of its powers by a corpo-
within the protection of that clause ration is by an information in the
of the United States constitution de- nature of a quo uxirranto, considered
daring that " no state shall pass any later,
law impairing the obligation of con-
134: OF CORPORATIONS. [BOOK T.
having reposed in him so entire a confidence that he will
administer justice impartially, that his determinations are
final and examinable in no other court whatsoever. [484]
But where the visitor is under a temporary disability, there
the Court of King's Bench will interpose to prevent a de-
fect of justice. Also it is said that if a founder of an elee-
mosynary foundation appoints a visitor and limits his juris-
diction by rules and statutes, if the visitor in his sentence
exceeds those rules, an action lies against him; but it is
otherwise where he mistakes in a thing within his power.
IV. How may corporations be dissolved.
Any particular member may be disfranchised or lose his
place in the corporation by acting contrary to the laws of
the society or the laws of the land, or he may resign it by
his own voluntary act. But the body politic may also itself
be dissolved in several ways, which dissolution is the civil
death of the corporation; and in this case their lands and
tenements shall revert to the person or his heirs who
granted them to the corporatio.ii; for the law doth annex a
condition to every such grant, that, if the corporation be
dissolved, the grantor shall have the lands again, because
the cause of the grant faileth. The grant is indeed only
during the life of the corporation, which may endure for-
ever; but when that life is determined by the dissolution of
the body politic, the grantor takes it back by reversion, as
in the case of every other grant for life. The debts of a
corporation, either to or from it, are totally extinguished
by its dissolution, so that the members thereof cannot re-
cover or be charged with them in their natural capacities. 1
A corporation may be dissolved: la 1. By act of parlia-
ment, which is boundless in its operations 2 [485]; 2. By
1. This rule does not apply to pri- la. See, generally, Clark on Corp.
vate business corporations. On their (2d Ed.), ch. 9.
dissolution their assets both real and 2. Not so with us where the charter
personal are administered for the constitutes a contract. See Dart-
benefit first of their creditors and mouth College v. Woodward, cited
afterwards for the stockholders, supra. It is now a common practice
Clark on Corp. (2d Ed.), 121, 247, to reserve in the act of incorporation
248 and cases cited in notes.
CHAP. XVIII. ] OF CORPORATIONS. 135
the natural death of all its members, in case of an aggregate
corporation; 3. By surrender of its franchises into the hands
of the king, which is a kind of suicide ; 4. By forfeiture of
its charter through negligence or abuse of its franchises, in
which case the law judges that the body politic has broken
the condition upon which it was incorporated, and there-
upon the incorporation is void. And the regular course is
to bring an information in nature of a writ of quo warranto,
to inquire by what warrant the members now exercise their
corporate power, having forfeited it by such and such pro-
ceedings. 3
or charter the right to amend or re- mon law method where there is a
peal at legislative discretion. legal existing body capable of acting
3. The state only can enforce a for- but which has abused its power; quo
feiture. The procedure is often pre- u-arranto is the proper method where
scribed by statute. When not so pre- a body is corporate de facto only,
scribed, scire facias ia the proper com- Clark on Corp. (2d Ed.), 241, 243.
BOOK THE SECOND.
OF THE BIGHTS OF THINGS.
CHAPTER I.
OF PROPERTY IN GENERAL. 1
There is nothing which so generally strikes the imagination and engages
the affections of mankind as the right of property, or that sole and
despotic dominion which one man claims and exercises over the external
things of the world, in total exclusion of the right of any other indi-
vidual in the universe. [2]
In the beginning of the world, we are informed by Holy Writ, the
All-bountiful Creator gave to man " dominion over all the earth, and over
the fish of the sea, and over the fowl of the air, and over every living
thing that moveth upon the earth." [3] This is the only true and solid
foundation of man's dominion over external things. The earth, there-
fore, and all things therein are the general property of all mankind,
exclusive of other beings, from the immediate gift of the Creator. And,
while the earth continued bare of inhabitants, it is reasonable to sup-
pose that all was in common among them, and that every one took from
the public stock to his own use such things as his immediate necessities
required.
These general notions of property were then sufficient to answer all
the purposes of human life, and might perhaps still have answered them,
had it been possible for mankind to have remained in a state of primeval
simplicity; as may be collected from the manners of many American
nations when first discovered by the Europeans, and from the ancient
method of living among the first Europeans themselves. Not that this
communion of goods seems ever to have been applicable, even in the
earliest stages, to aught but the substance of the thing; nor could it be
extended to the use of it. For by the law of nature and reason, he who
first began to use it acquired therein a kind of transient property that
lasted so long as he was using it, and no longer; or, to speak with
greater precision, the right of possession continued for the same time
only that the act of possession lasted. Thus the ground was in com-
1. See, generally, upon this subject Maine's Ancient Law, 244 et seq.
[137]
138 OF PROPERTY IN GENERAL. . [BOOK II.
mon, and no part of it was the permanent property of any man in par-
ticular. Yet whoever was in the occupation of any determined spot of
it, for rest, for shade, or the like, acquired for the time a sort of owner-
ship, from which it would have been unjust and contrary to the law of
nature to have driven him by force; but the instant that he quitted the
use or occupation of it, another might seize it without injustice. Thus
also a vine or other tree might be said to be in common, as all men
were equally entitled to its produce; and yet any private individual
might gain the sole property of the fruit which he had gathered for his
own repast. [4]
But when mankind increased in number, craft, and ambition, it be-
came necessary to entertain conceptions of more permanent dominion,
and to appropriate to individuals, not the immediate use only, but the
very substance of the thing to be used. Otherwise innumerable tumults
must have arisen, and the good order of the world be continually broken
and disturbed, while a variety of persons were striving who should get
the first occupation of the same thing, or disputing which of them had
actually gained it. As human life also grew more and more refined,
abundance of conveniences were devised to render it more easy, com-
modious, and agreeable, as habitations for shelter and safety, and rai-
ment for warmth and decency. But no man would be at the trouble to-
provide either, so long as he had only an usufructuary property in them r
which was to cease the instant that he quitted possession, if, as soon
as he walked out of his tent or pulled off his garment, the next stranger
who came by would have a right to inhabit the one and to wear the
other. In the case of habitations in particular, it was natural to ob-
serve that even the brute creation, to whom everything else was in com-
mon, maintained a kind of permanent property in their dwellings, es-
pecially for the protection of their young, that the birds of the air
had nests and the beasts of the field had caverns, the invasion of which
they esteemed a very flagrant injustice, and would sacrifice their lives
to preserve them. Hence a property was soon established in every man's
house and home-stall, which seem to have been originally mere tem-
porary huts or movable cabins, suited to the design of Providence for
more speedily peopling the earth, and suited to the wandering life of
their owners, before any extensive property in the soil or ground was
established. [5] And there can be no doubt but that movables of every
kind became sooner appropriated than the permanent substantial soil,
partly because they were more susceptible of a long occupancy, which
might be continued for months together without any sensible interrup-
tion, and at length by usage ripen into an established right, but prin-
cipally because few of them could be fit for use till improved and
meliorated by the bodily labor of the occupant, which bodily labor,
bestowed upon any subject which before lay in common to all men,
is universally/allowed to give the fairest and most reasonable title to an,
exclusive property therein.
CHAP. I.] OF PROPERTY IN GENERAL.
The article of food was a more immediate call, and therefore a more
early consideration. Such as were not contented with the spontaneous
product of the earth, sought for a more solid refreshment in the flesh of
beasts, which they obtained by hunting. But the frequent disappointments
incident to that method of provision induced them to gather together such
animals as were of a more tame and sequacious nature, and to establish
a permanent property in their flocks and herds in order to sustain them-
selves in a less precarious manner, partly by the milk of the dams, and
partly by the flesh of the young. The support of these their cattle made
the article of "water also a very important point. And therefore the
book of Genesis (the most venerable monument of antiquity, considered
merely with a yiew to history) will furnish us with frequent instances
of violent contentions concerning wells, the exclusive property of which
appears to have been established in the first digger or occupant, even
in such places where the ground and herbage remained yet in common.
All this while the soil and pasture of the earth remained still in com-
mon as before, and open to every occupant, except, perhaps, in the
neighborhood of towns, where the necessity of a sole and exclusive
property in lands (for the sake of agriculture) was earlier felt, and
therefore more readily complied with. [6] Otherwise, when the multitude
of men and cattle had consumed every convenience on one spot of
ground, it was deemed a natural right to seize upon and occupy such
other lands as would more easily supply their necessities. This prac-
tice is still retained among the wild and uncultivated nations that have
never been formed into civil states, like the Tartars and others in the
East.
Upon the same principle was founded the right of migration, or send-
ing colonies to find out new habitations, when the mother country was
overcharged with inhabitants, which was practised as well by the Phoe-
nicians and Greeks as the Germans, Scythians, and other northern peo-
ple. [7] And so long as it was confined to the stocking and cultivation
of desert, uninhabited countries, it kept strictly within the limits of the
law of nature.
As the world by degrees grew more populous, it daily became more
difficult to find out new spots to inhabit without encroaching upon former
occupants, and, by constantly occupying the same individual spot, the
fruits of the earth were consumed and its spontaneous produce destroyed,
without any provision for future supply or succession. It therefore be-
came necessary to pursue some regular method of providing a constant
subsistence, and this necessity produced, or at least promoted and en-
couraged, the art of agriculture. And the art of agriculture, by a regular
connection and consequence, introduced and established the idea of a
more permanent property in the soil than had hitherto been received
and adopted. It was clear that the earth would not produce her fruits
in sufficient quantities without the assistance of tillage^ but who would
140 OF PROPERTY IN GENERAL. [BooK II.
be at the pains of tilling it if another might watch an opportunity to
seize upon and enjoy the product of his industry, art, and labor? Had
not, therefore, a separate property in lands as well as movables been
vested in some individuals, the world must have continued a forest, and
men have been mere animals of prey, which, according to some philo-
sophers, is the genuine state of nature. Whereas now, so graciously
hag Providence interwoven our duty and our happiness together, the
result of this very necessity has been the ennobling of the human species,
by giving it opportunities of improving its rational faculties, as well as
of exerting its natural, [g] Necessity begat property; and in 'order to
insure that property, recourse was had to civil society, which brought
along with it a long train of inseparable concomitants; .states, govern-
ment, laws, punishments, and the public exercise of religious duties. Thus
connected together, it was found that a part only of society was suffi-
cient to provide by their manual labor for the necessary subsistence of
all, and leisure was given to others to cultivate the human mind, to in-
vent useful arts, and to lay the foundations of science.
The only question remaining is, How this property became actually
vested, or what it is that gave a man an exclusive right to retain in a
permanent manner that specific land which before belonged generally
to everybody, but particularly to nobody. And as we before observed
that occupancy gave the right to the temporary use of the soil, so it
is agreed upon all hands that occupancy gave also the original right to
the permanent property in the substance of the earth itself, which ex-
cludes every one else but the owner from the use of it. 2
2. Mr. Locke says, "that the labour and we have not advanced a single
of a man's body, and the work of his step by this demonstration,
hands, we may say are properly his. The account of Grotius and Puffen-
Whatsoever then he removes out of dorf, who maintain that the origin
the state that nature hath provided and inviolability of property are
and left it in, he hath mixed his la- founded upon a tacit promise or com-
bour with, and joined to it something pact, and therefore we cannot invade
that is his own, and thereby makes another's property without a viola-
it his property." (On Got?., c. 5.) tion of a promise or a breach of good
But this argument seems to be a faith, seems equally, or more, super-
petitio principii; for mixing labour fluous and inconclusive,
with a thing, can signify only to There appears to be just the same
make an alteration in its shape or necessity to call in the aid of a prom-
form; and if I had a right to the sub- ise to account for, or enforce, every
stance, before any labour was be- other moral obligation, and to say
stowed upon it, that right still ad- that men are bound not to beat or
heres to all that remains of the sub- murder each other, because they have
stance, whatever changes it may have promised not to do so. Men are bound
undergone; if I ha^d no right before, to fulfil their contracts and engage-
it is clear that I have none after; ments, because society could not oth-
CHAP. L] OF PROPERTY IN GENERAL. 141
Property, both in lands and movables, being thus originally acquired
by the first taker, which taking amounts to a declaration that he in-
tends to appropriate the thing to his own use, it remains in him, by the
principles of universal law, till such time as he does some other act
which shows an intention to abandon it: for then it becomes, naturally
speaking, publici juris 2a on ce more, and is liable to be again appro-
priated by the next occupant. [9] So if one is possessed of a jewel, and
casts it into the sea or a public highway, this is such an express derelic-
tion that a property will be vested in the first fortunate tinder that will
seize it to his own use. But if he hides it pmately in the earth or other
secret place, and it is discovered, the finder acquires no property therein,
for the owner hath not by this act declared any intention to abandon
it, but rather the contrary; and if he loses or drops it by accident, it
cannot be collected from thence that he designed to quit the possession,
and therefore in such a case the property still remains in the loser, who
may claim it again of the finder.
Bu"t this method of one man's abandoning his property and another
seizing the vacant possession, however well founded in theory, could
not long subsist in fact. It was calculated merely for the rudiments of
civil society, and necessarily ceased among the complicated interests
and artificial refinements of polite and established government. In these
it was found that what became inconvenient or useless to one man was
highly convenient and useful to another, who was ready to give in ex-
change for it some equivalent that was equally desirable to the former
proprietor. Thus mutual convenience introduced commercial traffic and
the reciprocal transfer of property by sale, grant, or conveyance, which
may be considered either as a continuance of the original possession
which the first occupant had, or as an abandoning of the thing by the
present owner and an immediate successive occupancy of the same by
the new proprietor. [10] The voluntary dereliction of the owner and
delivering the possession to another individual amount to a transfer of
erwise exist; men are bound to re- When an untutored Indian has set
frain from another's property, because before him the fruit which he has
likewise society could not otherwise plucked from the tree that protects
exist. Nothing therefore is gained by him from the heat of the sun, and
resolving one obligation into the the shell of water raised from the
other. fountain that springs at his feet; if
But how, or when, then, does prop- he is driven by any daring intruder
erty commence? I conceive no better from this repast, so easy to be re-
answer can be given, than by occu- placed, he instantly feels and resents
pancy, or when any thing is separated the violation of that law of property,
for private use from the common which nature herself has written upon
stores of nature. This is agreeable the hearts of all mankind,
to the reason and sentiments of man- 2a. Of public right,
kind, prior to all civil establishments.
142 OF PROPERTY IN GENERAL. [BooK II.
the property, the proprietor declaring his intention no longer to occupy
the thing himself, but that his own right of occupancy shall be vested in
the new acquirer. Or, taken in the other light, if I agree to part with
an acre of my land to Titius, the deed of conveyance is an evidence of
my intending to abandon the property; and Titius, being the only or
first man acquainted with such my intention, immediately steps in and
seizes the vacant possession. Thus the consent expressed by the con-
veyance gives Titius a good right against me, and possession, or occu-
pancy, confirms that right against all the world besides.
The most universal and effectual way of abandoning property is by
the death of the occupant, when, both the actual possession and inten-
tion of keeping possession ceasing, the property which is founded upon
such possession and intention ought also to cease of course. For,
naturally speaking, the instant a man ceases to be, he ceases to have
any dominion; else, if he had a right to dispose of his acquisitions one
moment beyond his life, he would also have a right to direct their dis-
posal for a million of ages after him, which would be highly absurd and
inconvenient. All property must therefore cease upon death, consider-
ing men as absolute individuals and unconnected with civil society; for
then, by the principles before established, the next immediate occupant
would acquire a right in all that the deceased possessed. But as, under
civilized governments, which are calculated for the peace of mankind,
such a constitution would be productive of endless disturbances, the
universal law. of almost every nation (which is a kind of secondary law
of nature) has either given the dying person a power of continuing his
property by disposing of his possessions by will, or in case he neglects
to dispose of it, or is not permitted to mak^ any disposition at all, the
municipal law of the country then steps in and declares who shall be
the successor, representative, or heir of the deceased, that is, who
alone shall have a right to enter upon this vacant possession, in order
to avoid that confusion which its becoming again common would oc-
casion. [11] And further, in case no testament be .permitted by the law,
or none be made, and no heir can be found so qualified as the law re-
quires, still, to prevent the robust title of occupancy from again taking
place, the doctrine of escheats is adopted in almost every country,
whereby the sovereign of the state and those who claim under his au-
thority are the ultimate heirs, and succeed to those inheritances to
which no other title can be formed.
The rifrht of inheritance, or descent to the children and relations of
the deceased, seems to have been allowed much earlier than the right
of devising by testament. A man's children or nearest relations are
usually about him on his death-bed, and are the earliest witnesses of
his decease. [12] They become therefore generally the next immediate
occupants, till at length in process of time this frequent usage ripened
into general law. And therefore also in the earliest ages, on failure
of children a man's servants born under his roof were allowed to be
CHAP. L] OF PROPERTY IN GENERAL. 143
i
his heirs, being immediately on the spot when he died. For we find the
old patriarch Abraham expressly declaring, that " since God had given
him no seed, his steward Eliezer, one born in his house, was his heir."
While property continued only for life, testaments were useless and
unknown; and when it became inheritable the inheritance was long in-
defeasible, and the children or heirs at law were incapable of exclusion
by will. Till at length it was found that so strict a rule of inheritance
made heirs disobedient and headstrong, defrauded creditors of their
just debts, and prevented many provident fathers from dividing or charg-
ing their estates as the exigence of their families required. This in-
troduced pretty generally the right of disposing of one's property, or a
part of it, by testament; that is, by written or oral instructions properly
iritnessed and authenticated, according to the pleasure of the deceased,
which we therefore emphatically style his will. This was established in
some countries much later than in others. With us in England, till mod-
ern times, a man could only dispose of one-third of his movables from his
wife and children, and in general no will was permitted of lands till
the reign of Henry VII. and then only of a certain portion; for it was
not till after the Restoration that the power of devising real property
became so universal as at present.
Wills, therefore, and testaments, rights of inheritance and successions,
are all of them creatures of the civil or municipal laws, and accordingly
are in all respects regulated by them, every distinct county having differ-
ent ceremonies and requisites to make a testament completely valid;
neither does anything vary more than the right of inheritance under
different national establishments. [13]
But, after all, there are some few things which, notwith-
standing the general introduction and continuance of prop-
erty, must still unavoidably remain in common, being such
wherein nothing but an usufructary property is capable
of being had, and therefore they still belong to the first
occupant during the time he holds possession of them, and
no longer. [14] Such (among others) are the elements of
light, air, and water, which a man may occupy by means
of his windows, his gardens, his mills, and other conveni-
ences. Such also are the generality of those animals which
are said to be ferae naturae, 3 or of a wild and untamable dis-
position, which any man may seize upon and keep for his
own use and pleasure. All these things, so long as they
remain in possession, every man has a right to enjoy with-
3. Of a wild nature.
144 OF PROPERTY IN GENERAL. [BOOK II.
out disturbance; but if once they escape from his custody,
or he voluntary abandons the use of them, they return to
the common stock, and any man else has an equal right to
seize and enjoy them afterwards. 4
Again, there are other things in which a permanent prop-
erty may subsist, not only as to the temporary use but also
the solid substance, and which yet would be frequently
found without a proprietor, had not the wisdom of the law
provided a remedy to obviate this inconvenience. Such
are forests and other waste grounds which were omitted
to be appropriated in the general distribution of lands ; such
also are wrecks, estrays, and that species of wild animals
which the arbitrary constitutions of positive law have dis-
tinguished from the rest by the well-known appellation of
game. 5 With regard to these and some others, as disturb-
ances and quarrels would frequently arise among individ 5 -
uals contending about the acquisition of this species of
property by first occupancy, the law has therefore wisely
cut up the root of dissension by vesting the things them-
selves in the sovereign of the state, or else in his representa-
tives appointed and authorized by him, being usually the
lords of manors. [15] And thus the legislature of England
has universaly promoted the grand ends of civil society, the
peace and security of individuals, by steadily pursuing that
wise and orderly maxim, of assigning to everything capable
of ownership a legal and determinate owner.
4. See Ewell on Fixtures (2d Ed.) 5 5. Consult local statutes regulating
*241 and notes. the taking of game.
CHAP. II. J OF REAL PROPERTY. 145
CHAPTER II.
OF REAL PROPERTY; AND, FIRST, OF CORPOREAL HEREDITAMENTS.
The objects of dominion or property are things as contra-
distinguished from persons; and things are by the law of
England distributed into two kinds, things real and things
personal. [16] Things real are such as are permanent,
fixed, and immovable, which cannot be carried out of their
place, as lands and tenements; things personal are goods,
money, and all other movables which may attend the own-
er's person wherever he thinks proper to go.
First, with regard to their several sorts or kinds, things
real are usually said to consist in lands, tenements, or here-
ditaments. Land comprehends all things of a permanent,
substantial nature. Tenement is a word of still greater
extent, and though in its vulgar acceptation it is only ap-
plied to houses and other buildings, yet in its original,
proper, and legal sense it signifies everything that may be
liolden, provided it be of a permanent nature, whether it be
of a substantial and sensible or of an unsubstantial ideal
kind. [17] Thus liberum tenementum, frank tenement, or
freehold, is applicable not only to lands and other solid
objects, but also to offices, rents, commons, and the like.
And as lands and houses are tenements, so is an advowson
a tenement; and a franchise, an office, a right of common,
a peerage, or other property of the like unsubstantial kind,
are all of them, legally speaking, tenements. But an here-
ditament, says Sir Edward Coke, is by much the largest
and most comprehensive expression; for it includes not only
lands and tenements, but whatsoever may be inherited, be
it corporeal or incorporeal, real, personal, or mixed. Thus
an heirloom, 6 or implement of furniture which by custom
6. We have found no instance where Fixtures (2d Ed.), *232 note, where
the law of heir-looms has been recog- the English law upon this subject is
nized as a part of the jurisprudence fully considered following Mr. Ferard
of the United States. See Ewell on (Fixtures), 192 et seq.
10
146 OF HEAL PROPERTY. [BooK IT.
descends to the heir together with a house, is neither land
nor tenement, but a mere movable; yet, being inheritable,
is comprised under the general word hereditament. And
so a condition, 7 the benefit of which may descend to a man
from his ancestor, is also an hereditament.
Hereditaments are of two kinds, corporal and incorpo-
real. Corporeal consist of such as affect the senses, such as
may be seen and handled by the body; incorporeal are not
the object of sensation, can neither be seen nor handled, are
creatures of the mind, and exist only in contemplation.
Corporeal hereditaments consist wholly of substantial
and permanent objects, all which may be comprehended
under the general denomination of land only. For land,
says Sir Edward Coke, comprehendeth, in its legal signifi-
cation, any ground, soil, or earth whatsoever, as arable,
meadows, pastures, woods, moors, waters, marshes, furzes,
and heath. It legally includeth also all castles, houses,
and other buildings ; for they consist, said he, of two things,
land, which is the foundation, and structure thereupon, so
that if I convey the land or ground, the structure or build-
ing passeth therewith. [18] . It is observable that water is
here mentioned as a species of land, which may seem a kind
of solecism; but such is the language of the law. And there-
fore I cannot bring an action to recover possession of a pool
or other piece of water by the name of water only, either
by calculating its capacity, as for so many cubical yards,
or by superficial measure, for twenty acres of water, or by
general description, as for a pond, a watercourse, or a
rivulet; but I must bring my action for the land that lies
at the bottom, and must call it twenty acres of land covered
with water? For water is a movable, wandering thing, and
must of necessity continue common by the law of nature,
so that I can only have a temporary; transient, usufructuary
property therein; wherefore, if a body of water runs out of
7. " In its most extended significa- in case of a will, to suspend, revoke
tion a condition is a clause in a con- or modify the devise or bequest."
tract or agreement which has for its 1 Bouv. Diet., Condition,
object to suspend, to rescind, or to 8. Jackson v. Halstead, 5 Cow. 216.
modify the principal obligation; or
CHAP. II.] OF HEAL PROPERTY. 147
my pond into another man's, I have no right to reclaim it.
But the land which that water covers is permanent, fixed,
and immovable; and therefore in this I may have a certain
substantial property, of which the law will take notice, and
not of the other.
Land hath also, in its legal signification, an indefinite
extent, upwards as well as downwards. 9 Upwards, there-
fore, no man may erect any building, or the like, to over-
hang another's land; and, downwards, whatever is in a
direct line, between the surface of any land and the centre
of the earth, belongs to the owner of the surface, as is every
day's experience in the mining countries. So that the word
' ' land ' ' includes not only the face of the earth, but every-
thing under it or over it. 1 And, therefore, if a man grants
all his lands, he grants thereby all his mines of metal and
other fossils, his woods, his waters, and his houses, as well
as his fields and meadows. 2 Not but the particular names
of the things are equally sufficient to pass them, except in
the instance of water, by a grant of which nothing passes
but a right of fishing. [19] But the capital distinction is
. _ . _
9. There has been considerable liti- by a conveyance of the land. Ewell
gation concerning trees growing on on Fixtures, *252 and notes, where
boundary lines. "It matters not that numerous cases on this subject are
some of the roots [or branches] of collected. See, generally, the chapter
the tree are in [or ovr] the soil of (7) on Emblements in Ewell on Fix-
the defendant when the body or main tures, where the subject of crops is
part of the tree is in the soil of the considered in all its relations,
plaintiff, for to this the rest of the 1. As to the right of aviation over
tree appertains." Masters v. Pollie, 2 private property, see 18 Law Notes
Rolle, 141; Ewell on Fixtures, *64, (July, 1914), 62; Davids on the Law
notes. If, however, the trunk of the of Motor Vehicles, sees. 290, 291.
tree is on the boundary line and 2. Growing crops, trees, minerals,
partly upon the land of each of the houses, fixtures, etc., may be sold and
adjacent proprietors, they are tenants conveyed separately from the land
in common of the tree; and neither and thus constructively severed from
may cut or destroy it without the it so as to become subject to the rules
consent of the other. Ewell on Fix- governing personal property. So they
tures (2d Ed.), *64 note and cases may be expressly reserved from a
cited. conveyance of the land with the same
Growing crops, when not reserved, effect. See Ewell on Fixtures, *45,
as a rule are passed to the grantee 46 and notes.
148 OF REAL PROPERTY. [BOOK II.
this, that by the name of a castle, 3 messuage, toft, croft, or
the like, nothing else will pass except what falls with the
utmost propriety under the terms made use of. But by
the name of land, which is nomcn generalissimum* every-
thing terrestrial will pass.
3. A conveyance of a building will 4. A most general name,
pass the land upon which it is situ-
ated. Esty v. Currier, 98 Mass. 502.
CHAP. III.] OF INCORPOREAL HEREDITAMENTS. . 149
CHAPTER III.
OP INCORPOREAL HEREDITAMENTS.
An incorporeal hereditament is a right issuing out of a
thing corporate (whether real or personal), or concerning,
or annexed to, or exercisable within the same. [20] It is
not the thing corporate itself, which may consist in lands,
houses, jewels, or the like, but something collateral thereto,
as a rent issuing out of those lands or houses, or an office
relating to those jewels. In short, corporeal hereditaments
are the substance which may be always seen, always
handled; incorporeal hereditaments are but a sort of acci-
dents which inhere in and are supported by that substance,
and may belong or not belong to it without any visible
alteration therein. Their existence is merely in idea and
abstracted contemplation, though their effects and profits
may be frequently objects of our bodily senses. And in-
deed, if we would fix a clear notion of an incorporeal here-
ditament, we must be careful not to confound together the
profits produced and the thing or hereditament which pro-
duces them.
Incorporeal hereditaments are principally of ten sorts:
advowsons, tithes, commons, ways, offices, dignities, fran-
chises, corodies or pensions, annuities, 6 and rents. [21]
I. Advowson is the right of presentation to a church, or ecclesiastical
benefice.
II. Tithes are defined to be the tenth part of the increase yearly aris-
ing and renewing from the profits of lands, the stock upon lands, and
the personal industry of the inhabitants. [24] Tithes are due of common
right to the parson of the parish, unless there be a special exemption. [28]
III. Common, or right of common, is a profit which a man hath in
the land of another, as to feed his beasts, to catch fish, to dig turf, to
cut wood, or the like. [32] And hence common is chiefly of four sorts:
common of pasture or piscary, of turbary, and of estovers.
6. "Neither tithes, advowsons, com- things of which an estate can be
mons, as understood in England, of- predicated, and annuities are but
fices, dignities, corodies, nor pensions, claims of a personal nature." 2 Wash,
are known to the American law as Real Prop., *4.
150 OF INCORPOREAL HEREDITAMENTS. [Boox II.
1. Common of pasture is a right of feeding one's beasts on another's
land; for in those waste grounds which are usually called commons,
the property of the soil is generally in the lord of the manor, as in com-
mon fields it is in the particular tenants. This kind of common is either
appendant, appurtenant (because of vicinage), or in gross.
Common appendant is a right belonging to the owners or occupiers of
arable land to put commonable beasts upon the lord's waste and upon
the lands of other persons within the same manor. [33] Commonable
beasts are either beasts of the plough, or such as manure the ground.
This is a matter of most universal right, and it was originally permitted,
not only for the encouragement of agriculture, but for the necessity
of the thing. For when lords of manors granted out parcels of land to
tenants, for services either done or to be done, these tenants could not
plough or manure the land without beasts, these beasts could not be
sustained without pasture, and pasture could not be had but in the lord's
wastes, and on the uninclosed fallow grounds of themselves and the
other tenants. The law therefore annexed this right of common, as
inseparably incident to the grant of the lands. And this was the original
of common appendant. Common appurtenant ariseth from no connection
of tenure, nor from any absolute necessity, but may be annexed to lands
in other lordships, or extend to other beasts besides, such as are gen-
erally commonable, as hogs, goats, or the like, which neither plough
nor manure the ground. This not arising from any natural propriety
or necessity, like common appendant, is therefore not of general right,
but can only be claimed by immemorial usage and prescription. Com-
nion because of vicinage, or neighborhood, is where the inhabitants of
two townships which lie contiguous to each other have usually inter-
comtnoned with one another, the beasts of the one straying mutually
into the other's fields without any molestation from either. This is in-
deed only a permissive right, intended to excuse what in strictness is a
trespass in both, and to prevent a multiplicity of suits, and therefore
either township may enclose and bar out the other, though they have
intercommoned time out of mind. Neither hath any person of one town
a right to put his beasts originally into the other's common; but if they
escape, and stray thither of themselves, the law winks at the trespass.
[34] Common in gross, or at large, is such as is neither appendant nor
appurtenant to land, but is annexed to a man's person, being granted to
him and his heirs by deed; or it may be claimed by prescriptive right,
as by a parson of a church, or the like corporation sole. This is a separ-
ate inheritance, entirely distinct from any landed property, and may be
vested in one who has not a foot of ground in the manor.
2, 3. Common of piscary is a liberty of fishing in another man's water,
as common of turbary is a liberty of digging turf upon another's ground.
There is also a common of digging for coals, minerals, stones, and the
like. All these bear a resemblance to common of pasture in many re-
cpects, though in one point they go much further, common of pasture
CHAP. III.] OF INCORPOREAL HEREDITAMENTS. 151
being only a right of feeding on the herbage and vesture of the soil,
which renews annually; but common of turbary, and those aforemen-
tioned, are a right of carrying away the very soil itself.
4. Common of estovers, or estouviers, that is, necessaries (from estoffer,
to furnish), is a liberty of taking necessary wood, for the use of furni-
ture of a house or farm, from off another's estate. [35] The Saxon word
bote is used by us as synonymous to the French estovers, and therefore
Iiouse-bote is a sufficient allowance of wood to repair or to burn in the
house, which latter is sometimes called fire-bote; plough-bote and cart-
bote are wood to be employed in making and repairing all instruments of
husbandry; and hay-bote, or hedge-bote, is wood for repairing of hay,
hedges, or fences.
These botes or estovers must be reasonable ones, and such
any tenant or lessee may take off the land let or demised
to him, without waiting for any leave, assignment, or ap-
pointment of the lessor, unless he be restrained by special
covenant to the contrary.
IV. A fourth species of incorporeal hereditaments is that
of ways, 7 or the right of going over another man's ground,
I speak not here of the king's highways, which lead from
town to town, nor yet of common ways, leading from a
7. An easement is defined by Mr. implication, as where land granted is
Hopkins in his work on Eeal Property represented as bounded or reached by
(1896) as "a right in the owner of a street, or where a map showing
one parcel of land by reason of such such a street is referred to in a deed,
ownership, to use the land of another They may also be implied from the
for a special purpose not inconsistent necessity of the case. See, generally,
with the general property in the lat- Hopkins, Real Prop., 359 and cases
ter." Hopkins, Real Prop., 349; cit- cited in the notes,
ing 2 Wash. Real Prop., 25. Ease- Easements of light and air over an
ments may be created by grant, pre- adjacent lot, while existing in Eng-
scription or adverse use for the time land, are generally repudiated in this
required by the statute of limitations. country, though recognized in a few
Hopkins, Real Prop., 350-354. states. See the cases collected in Hop-
A right of way is defined by Mr. kins, Real Prop., 363, 364. See also as
Hopkins as " an easement in favor of to lateral and subjacent support, ease-
an individual or class of individuals ments in water, etc. Hopkins, Real,
to have a passage on an established Prop., 365, 366, 368 and cases cited,
line over land of the servient owner See, generally, as to easements Wash-
to and from land of the dominant burn on Easements; Goddard on Ease-
owner." Hopkins. Real Prop., 359. ments, and Jones on Easements
Rights of way frequently arise by (1898).
152 OF INCORPOREAL HEREDITAMENTS. [BooK II.
village into the fields, but of private ways, in which a par-
ticular man may have an interest and a right, though
another be owner of the soil. This may be granted on a
special permission, as when the owner of the land grants to
another the liberty of passing over his grounds to go to
church, to market, or the like, in which case the gift or
grant is particular, and confined to the grantee alone. It
dies with the person, and, if the grantee leaves the country,
he cannot assign over his right to any other, nor can he
justify taking another person in his company. [36] A way
may be also by prescription, as if all the inhabitants of such
a hamlet, or all the owners and occupiers of such a farm,
have immemorially used to cross such a ground for such a
particular purpose; for this immemorial usage supposes an
original grant, whereby a right of way thus appurtenant to
land or houses may clearly be created. A right of way may
also arise by act and operation of law; for if a man grants
me a piece of ground in the middle of his field, he at the
same time tacitly and impliedly gives me a way to come to
it, and I may cross his land for that purpose without tres-
pass. For when the law doth give anything to one, it
giveth impliedly whatsoever is necessary for enjoying the
same. By the law of the Twelve Tables at Rome, where a
man had the right of way over another 's land, and the road
was out of repair, he who had the right of way might go
over any part of the land he pleased, which was the estab-
lished rule in public as well as private ways. And the law
of England in both 'cass seems to correspond with the
Eoman. [True only where the owner of the land is by grant
or prescription under obligation to repair the way.]
V. Offices, which are a right to exercise a public or private employ-
ment, and to take the fees and emoluments thereunto belonging, are
also incorporeal hereditaments. 8
VI. Dignities bear a near relation to offices. [37] Of the nature of
these we treated at large in the former book. It will therefore be here
8. No offices are hereditary in this
country and hence none are heredita-
ments.
CHAP. III.] OF INCORPOREAL HEREDITAMENTS. 153
sufficient to mention them as a species of incorporeal hereditaments,
wherein a man may have a property or estate. 9
VII. Franchises are a seventh species. Franchise and liherty are used
as synonymous terms, and their definition is a royal privilege, or branch
of the king's prerogative, subsisting in the hands of a subject. Being
therefore derived from the crown, they must arise from the king's grant,
or in some cases may be held by prescription, which, as has been fre-
quently said, presupposes a grant. It is a franchise for a number of
persons to be incorporated and subsist as a body politic, with a power
to maintain perpetual succession, and do other corporate acts, and each
individual member of such corporation is also said to have a franchise,
or freedom. 1
VIII. Corodies are a right of sustenance, or to receive certain allot-
ments of victual and provision for one's maintenance. [40] In lieu of
which (especially when due from ecclesiastical persons) a pension or
sum of money is sometimes substituted. And these may be reckoned
another species of incorporeal hereditaments, though not chargeable on
or issuing from any corporeal inheritance, but only charged on the per-
son of the owner in respect of such his inheritance.
IX. Annuities, which are much of the same nature, only that these
arise from temporal, as the former from spiritual, persons. An annuity
is a thing very distinct from a rent-charge, with which it is frequently
confounded; a rent-charge being a burthen imposed upon and issuing
out of lands, whereas an annuity is a yearly sum chargeable only upon
the person of the grantor. Therefore, if a man by deed grant to another
the sum of 201. per annum, without expressing out of what lands it shall
issue, no lands at all shall be charged with it, but it is a mere personal
annuity, which is of so little account in the law, that if granted to an
eleemosynary corporation it is not within the statutes of mortmain; and
yet a man may have a real estate in it, though his security is merely
personal.
X. A rent is defined to be a certain profit 2 issuing yearly
out of lands and tenements corporeal. [41] It must be a
profit: yet there is no occasion for it to be, as it usually is,
a sum of money, for spurs, capons, horses, corn, and other
matters may be rendered, and frequently are rendered, by
way of rent. It may also consist in services or manual
operations, as, to plough so many acres of ground, to attend
9. The same remarks as in note 8 2. The incorporeal hereditament
apply to dignities. rent is not the profit itself, but the
1. The word franchise is with us right to receive such profit,
usually applied to the right to be a
corporation.
154 OF INCORPOREAL HEREDITAMENTS. [BOOK II.
the king or the lord to the wars, and the like, which ser-
vices in the eye of the law are profits. This profit must also
be certain; or that which may be reduced to a certainty by
either party. It must also issue yearly: though there is no
occasion for it to issue every successive year; but it may
be reserved every second, third, or fourth year; yet, as it
is to be produced out of the profits of lands and tenements,
as a recompense for being permitted to hold or enjoy them,
it ought to be reserved yearly, because those profits do
annually arise and are annually renewed. It must issue
out of the thing granted, and not be part of the land or
thing itself, wherein it differs from an exception in the
grant, which is always of part of the thing granted. It
must, lastly, issue out of lands and tenements corporeal,
that is, from some inheritance whereunto the owner or
grantee of the rent may have recourse to distrein. There-
fore a rent cannot be reserved out of an advowson, a com-
mon, an office, a franchise, or the like. But a grant of such
annuity or sum may operate as a personal contract and
oblige the grantor to pay the money reserved, or subject
him to an action of debt ; though it doth not affect the in-
heritance, and is no legal rent in contemplation of law.
There are at common law three manner of rents, rent-
service, rent-charge, and rent-seek. Rent-service is so
called because it hath some corporeal service incident to it,
as at the least fealty or his feodal oath of fidelity. [42] For
if a tenant holds his land by fealty and ten shillings rent,
or by the service of ploughing the lord 's land and five shil-
lings rent, these pecuniary rents, being connected with per-
sonal services, are therefore called rent-service. And for
these, in case they be behind, or arrere., at the day appointed,
the lord may distrein 3 of common right, without reserving
3. The right of distress at common ers. See Hopkins, Real Prop., 146.
law was a right of detainer and did In Illinois it has been modified by
not carry the right to sell the thing statute so that after distress taken
distrained. 1 Bouvier Law Diet, title, the landlord must proceed in court.
Distress; 3 Bl. Com., 6. The right to See Rev. St. 111., ch. 80, sec. 17 et seq.
distrain for rent exist? in some of the For a discussion of the common v law
atates and has Iteen abolished in oth- of distress, see the leading case of
CHAP. III.] OF INCORPOREAL HEREDITAMENTS. 155
any special power of distress, provided he hath in himself
the reversion, or future estate of the lands and tenements,
after the lease or particular estate of the lessee or grantee
is expired. A rent-charge is where the owner of the rent
hath no future interest or reversion expectant in the land;
as where a man by deed maketh over to others his whole
estate in fee-simple, with a certain rent payable thereout,
and adds to the deed a covenant or clause of distress, that
if the rent be arrere, or behind, it shall be lawful to distrein
for the same. In this case the land is liable to the distress,
not of common right, but bjs virtue of the clause in the deed,
and therefore it is called a rent-charge, because in this
manner the land is charged with a distress for the payment
of it. Rent-seek, reditus siccus, or barren rent, is in effect
nothing more than a rent reserved by deed, but without any
clause of distress.
There are also other species of rents, which are reducible to these
three. Rents of assise are the certain established rents of the freehold-
ers and ancient copyholders of a manor, which cannot be departed from
or varied. Those of the freeholders are frequently called chief-rents,
reditus capitales. And both sorts are indifferently denominated quit-rents,
quieti reditus, because thereby the tenant goes quit and free of all other
services. Rack-rent is only a rent of the full value of the tenement, or
near it. [43] A fee-farm rent is a rent-charge issuing out of an estate
in fee, of at least one-fourth of the value of the lands at the time of its
reservation.
These are the general divisions of rents; but the difference between
them (in respect to the remedy for recovering them) is now totally
abolished [Stat. 4 Geo. II. c. 28], and all persons may have the like
remedy by distress for rents-seek, rents of assise, and chief-rents, as in
case of rents reserved upon lease.
Rent is regularly due and payable upon the land from
whence it issues if no particular- place is mentioned in the
reservation; but in case of the king, the payment must be
either to his officers at the exchequer, or to his receiver in
the country. And strictly the rent is demandable and pay-
able before the time of sunset of the day whereon it is re-
served, though perhaps not absolutely due till midnight. 4
Simpson v. Hartopp, Willes, 512 ; 1 4. See the local statutes.
Smith's Lead Cas. (9th Am. Ed.), 720-
736.
156 OF THE FEODAL SYSTEM. [BOOK II.
CHAPTER IV.
OF THE FEODAL SYSTEM.
The constitution of fends had its original from the military policy of
the northern or Celtic nations, the Goths, the Huns, the Franks, the
Vandals, and the Lombards, who all, migrating from the same officina
gentium, poured themselves in vast quantities into all the regions of
Europe, at the declension of the Roman empire. [45] It was brought by
them from their own countries, and continued in their respective colo-
nies as the most likely means to secure their new acquisitions; and to
that end, large districts or parcels of land were allotted by the con-
quering general to the superior officers of the army, and by them dealt
out again in smaller parcels or allotments to the inferior officers and
most deserving soldiers. These allotments were called feoda, feuds, fiefs,
or fees; which last appellation in the northern language signifies a con-
ditional stipend or reward. Rewards or stipends they evidently were,
and the condition annexed to them was that the possessor should do
service faithfully, both at home and in the wars, to him by whom they
were given; for which purpose he took the juramentum fidelitatis, or
oath of fealty, and in case of the breach of this condition and oath, by
not performing the stipulated service or by deserting the lord in battle,
the lands were again to revert to him who granted them.
Allotments thus acquired naturally engaged such as accepted them to
defend them, and as they all sprang from the same right of conquest,
no part could subsist independent of the whole; wherefore all givers as
well as receivers were mutually bound to defend each other's posses-
sions. [46] But as that could not effectually be done in a tumultuous,
irregular way, government, and to that purpose subordination, was
necessary. Every receiver of lands, or feudatory, was therefore bound,
when called upon by his benefactor, or immediate lord of his feud or
fee, to do all in his power to defend him. Such benefactor or lord was
likewise subordinate to and under the command of his immediate bene-
factor or superior, and so upwards to the prince or general himself;
and the several lords were also reciprocally bound, in their respective
graduations, to protect the possessions they had given. Thus the feodal
connection was established, a proper military subjection was naturally
introduced, and an army of feudatories was always ready enlisted, and
mutually prepared to muster, not only in defence of each man's own
several property, but also in defence of the whole and of every part of
this their newly-acquired country, the produce of which constitution
was soon sufficiently visible in the strength and spirit with which they
maintained their conquests.
This feodal polity, which was by degrees established over all the con-
CHAP. IV.] OF THE FEODAL SYSTEM. 157
tinent of Europe, seems not to have been received in this part of our
island, at least not universally and as a part of the national constitution,
till the reign of William the Norman. [48] Not but that it is reasonable
to believe, from abundant traces in our history and laws, that even in
the times of the Saxons, who were a swarm from what Sir William
Temple calls the same northern hive, something similar to this was in
use, yet not so extensively, nor attended with all the rigor that was
afterwards imported by the Normans. For the Saxons were firmly set-
tled in this island at least as early as the year 600, and it was not till
two centuries after that feuds arrived at their full vigor and maturity,
even on the continent of Europe.
This introduction, however, of the feudal tenures into England by
King William does not seem to have been effected immediately after the
Conquest, nor by the mere arbitrary will and power of the conqueror,
but to have been gradually established by the Norman barons and others
in such forfeited lands as they received from the gift of the conqueror,
and afterwards universally consented to by the great council of the
nation, long after his title was established. Indeed from the prodigious
slaughter of the English nobility at the battle of Hastings and the fruit-
less insurrections of those who survived, such numerous forfeitures had
accrued that he was able to reward his Norman followers with very
large and extensive possessions, which gave a handle to the monkish
historians, and such as have implicitly followed them, to represent him
as having by right of the sword seized on all the lands of England, and
dealt them out again to his own favorites, a supposition grounded upon
a mistaken sense of the word conquest, which in its feodal acceptation
signifies no more than acquisition [see, however, Hume's Hist, of Eng.
ch. 4] ; and this has led many hasty writers into a strange historical
mistake, and one which, upon the slightest examination, will be found
to be most untrue. [49] However, certain it is that the Normans now
began to gain very large possessions in England, and their regard for
the feodal law under which they had long lived, together with the king's
recommendation of this policy to the English, as the best way to put
themselves on a military footing, and thereby to prevent any future
attempts from the Continent, were probably the reasons that prevailed
to effect its establishment here by law. And though the time of this
great revolution in our landed property cannot be ascertained with ex-
actness, yet there are some circumstances that may lead us to a probable
conjecture concerning it. For we learn from the Saxon Chronicle that
in the nineteenth year of King William's reign an invasion was appre-
hended from Denmark, and the military constitution of the Saxons being
then laid aside, and no other introduced in its stead, the kingdom was
wholly defenceless, which occasioned the king to bring over a large army
of Normans and Bretons, who were quartered upon every landholder,
and greatly oppressed the people. This apparent weakness, together
with the grievances occasioned by a foreign force, might co-operate
158 OF THE FEODAL SYSTEM. [BOOK II.
with the king's remonstrances, and the better incline the nobility to
listen to his proposals for putting them in a posture of defence. For
as soon as the danger was over, the king held a great council to in-
quire into the state of the nation; the immediate consequence of which
was the compiling of the great survey called domesday-book, which was
finished in the next year, and in the latter end of that very year the
king was attended by all his nobility at Sarum, where all the principal
landholders submitted their lands to the yoke of military tenure, be-
came the king's vassals, and did homage and fealty to his person. This
may possibly have been the era of formally introducing the feodal
tenures by law.
This new polity, therefore, seems not to have been imposed by the con-
queror but nationally and freely adopted by the general assembly of the
whole realm, in the same manner as other nations of Europe had be-
fore adopted it, upon the same principle of self-security. [50] And in
particular they had the recent example of the French nation before their
eyes, which had gradually surrendered up all its allodial, or free, lands
into the king's hands, who restored them to the owners as a bencftdum,
or feud, to be held to them and such of their heirs as they previously
nominated to the king; and thus by degrees all the allodial estates in
France were converted into feuds, and the freemen became the vassals
of the crown. The only difference between this change of tenures in
France and that in England was that the former was effected gradually
by the consent of private persons, the latter was done at once all over
England by the common consent of the nation. [51]
The grand and fundamental maxim of all feodal tenure
is this: that all lands were originally granted out by the
sovereign, and are therefore holden, either mediately or
immediately, of the crown. 1 [53] The grantor was called
the proprietor, or lord, being he who retained the dominion,
or ultimate property of the feud or fee; and the grantee,
who had only the use and possession according to the terms
of the grant, was styled the feudatory, or rassal, which was
only another name for the tenant, or holder of the lands.
Though, on account of the prejudices which we have justly conceived
against the doctrines that were afterwards grafted on this system, we
1. In this country land is held in cage, as to which see post, *80; 1 Bou-
allodio, that is every tenant in fee vier Law Diet, allodium; 3 Kent Com.
simple has an absolute and perfect 390. The feudal system has, how-
title; yet in technical language his ever, furnished the terminology of our
estate is called an estate in fee simple, law of real estate and hence should
and the tenure free and common so- be understood by the student.
CHAP. IV.] OF THE FEODAL SYSTEM. 150
now use the word vassal opprobriously, as synonymous to slave or bond-
man, the manner of the grant was by words of gratuitous and pure
donation, dedi ei concessi, which are still the operative words in our
modern infeodations, or deeds of feoffment. This was perfected by the
ceremony of corporal investiture, or open and notorious delivery of
possession in the presence of the other vassals, which perpetuated among
them the era of the new acquisition at a time when the art of writing
was very little known, and therefore the evidence of property was re-
posed in the memory of the neighborhood, who, in case of a disputed
title, were afterwards called upon to decide the difference, not only ac-
cording to external proofs adduced by the parties litigant, but also by
the internal testimony of their own private knowledge.
Besides an oath of fealty, or profession of faith to the lord, which was
the parent of our oath of allegiance, the vassal or tenant upon investi-
ture did usually homage to his lord, openly and humbly kneeling, being
ungirt, uncovered, and holding up his hands both together between those
of the lord who sate before him, and there professing that " he did be-
come his man, from that day forth, of life and limb and earthly honor;"
and then he received a kiss from his lord, which ceremony was de-
nominated homagium or manhood, by the feudists, from the stated form
of words, decenio vester hotno.z [i54]
When the tenant had thus professed himself to be the man of his su-
perior or lord, the next consideration was concerning the service which,
as such, he was bound to render in recompense for the land that he held.
This, in pure, proper, and original feuds, was only twofold: to follow
or do suit to the lord in his courts in time of peace, and in his armies
or warlike retinue when necessity called him to the field.
At the first introduction of feuds, as they were gratuitous, so also
they were precarious, and held at the will of the lord, who was then the
sole judge whether his vassal performed his services faithfully. [55]
Then they became certain for one or more years. Among the ancient
Germans they continued only from year to year, an annual distribution
of lands being made by their leaders in their general councils or as-
semblies. This was professedly done lest their thoughts should be
diverted from war to agriculture, lest the strong should encroach upon
the possessions of the weak, and lest luxury and avarice should be en-
couraged by the erection of permanent houses and too curious an at-
tention to convenience and the elegant superfluities of life. But when
the general migration was pretty well over and a peaceable possession
of the new-acquired settlements had introduced new customs and man-
ners, when the fertility of the soil had encouraged the study of hus-
bandry and an affection for the spots they had cultivated began naturally
to arise in the tillers, a more permanent degree of property was intro-
duced, and feuds began now to be granted for the life of the feudatory.
2. I become your man.
160 OF THE FEODAL SYSTEM. [BOOK II.
But still feuds were not yet hereditary, though frequently granted by the
favor of the lord to the children of the former possessor, till in process
of time it became unusual, and was therefore thought hard, to reject the
heir if he were capable to perform the services; and therefore infants,
women, and professed monks, who were incapable of bearing arms, were
also incapable of succeeding to a genuine feud. [56] But the heir when
admitted to the feud which his ancestor possessed used generally to
pay a fine or acknowledgment to the lord, in horses, arms, money, and
the like, for such renewal of the feud, which was called a relief, because
it raised up and re-established the inheritance, or, in the words of the
feodal writers, " incertam et caducam hereditatem relevabat."* This re-
lief was afterwards, when feufls became absolutely hereditary, continued
on the death of the tenant, though the original foundation of it had
ceased.
For in process of time feuds came by degrees to be universally ex-
tended beyond the life of the first vassal to his sons, or perhaps to such
one of them as the lord should name, and in this case the form of the
donation was strictly observed. For if a feud was given to a man and
his sons, all his sons succeeded him in equal portions, and as they died
off, their shares reverted to their lord, and did not descend to their chil-
dren, or even to their surviving brothers, as not being specified in the
donation. But when such a feud was given to a man and his heirs in
general terms, then a more extended rule of succession took place; and
when the feudatory died, his male descendants in infuiitum * were ad-
mitted to the succession. When any such descendant who thus had
succeeded died, his male descendants were also admitted in the first
place, and in defect of them such of his male collateral kindred as were
of the blood or lineage of the first feudatory, but no others. For this
was an unalterable maxim in feodal succession, that " none was capable
of inheriting a feud but such as was of the blood of, that is, lineally
descended from, the first feudatory." And the descent, being thus con-
fined to males, originally extended to all the males alike, all the sons
without any distinction of primogeniture succeeding to equal portions
of the father's feud. But this being found upon many accounts incon-
venient (particularly by dividing the services, and thereby weakening
the strength of the feodal union), and honorary feuds (or titles of no-
bility) being now introduced which were not of a divisible nature, but
could only be inherited by the eldest son, in imitation of these, military
feuds (or those we are now describing) began also in most countries
to descend, according to the same rule of primogeniture, to the eldest
son, in exclusion of all the rest. [57]
Other qualities of feuds were, that the feudatory could not aliene or
dispose of his feud, neither could he exchange, nor yet mortgage, nor
3. It raised up the uncertain and 4. In infinity,
fallen inheritance.
CHAP. IV.] OF THE FEODAL SYSTEM. 1G1
even devise it by will, without the consent of the lord. For the reason
of conferring the feud being the personal abilities of the feudatory to
serve in war, it was not fit he should be at liberty to transfer this gift,
either from himself or from his posterity, who were presumed to in-
herit his valor, to others who might prove less able. And as the feodal
obligation was looked upon as reciprocal, the feudatory being entitled
to the lord's protection in return for his own fealty and service, there-
fore the lord could no more transfer his seignory or protection without
consent of his vassal, than the vassal could his feud without consent of
his lord: it being equally unreasonable that the lord should extend his
protection to a person to whom he had exceptions, and that the vassal
should owe subjection to a superior not of his own choosing.
These were the principal and very simple qualities of the genuine
or original feuds, which were all of a military nature and in the hands
of military persons, though the feudatories, being under frequent in-
capacities of cultivating and manuring their own lands, soon found it
necessary to commit part of them to inferior tenants, obliging them to
such returns in service, corn, cattle, or money, as might enable the chief
feudatories to attend their military duties without distraction, which
returns, or reditus, were the original of rents. And by these means the
feodal polity was greatly extended, these inferior feudatories (who held
what are called in the Scots law "rere-fiefs") being under similar ob-
ligations of fealty to do suit of court, to answer the stipulated renders
or rent-service, and to promote the welfare of their immediate superiors
or lords. But this at the same time demolished the ancient simplicity
of feuds, and an inroad being once made upon their constitution, it sub-
jected them, in a course of time, to great varieties and innovations. [58J
Feuds began to be bought and sold, and deviations were made from the
old fundamental rules of tenure and succession, which were held no
longer sacred when the feuds themselves no longer continued to be
purely military. Hence these tenures began now to be divided into
feoda propria et impropria, proper and improper feuds, under the for-
mer of which divisions were comprehended such and such only of which
we- have before spoken, and under that of improper or derivative feuds
were comprised all such as do not fall within the other descriptions,
such, for instance, as were originally bartered and sold to the feudatory
for a price; such as were held upon base or less honorable services,
or upon a rent, in lieu of military service; such as were in themselves
alienable, without mutual license; and such as might descend indiffer-
ently either to males or females. But where a difference was not ex-
pressed in the creation, such new created feuds did in all respects fol-
low the nature of an original, genuine, and proper feud.
11
162 ANCIENT ENGLISH TENUKES. [BOOK II.
CHAPTER V.
OF THE ANCIENT ENGLISH TENURES.
Tn this chapter we shall take a short view of the ancient tenures of
our English estates, or the manner in which lands, tenements, and here-
ditaments might have been holden, as the same stood in force till the
middle of the last century. [59]
Almost all the real property of tin's kingdom is, by the policy of our
laws, supposed to be granted by, dependent upon, and holden of, some
superior lord, 1 hy and in consideration of certain services to be rendered
to the lord by the tenant or possessor of this property. The thing holclen
is therefore styled a tenement, the possessors thereof tenants, and the
manner of their possession a tenure. Thus all the land in the kingdom
is supposed to be holden, mediately or immediately, of the king, who is
styled the lord paramount, or above all. Such tenants as held under
the king immediately, when they granted out portions of their lands
to inferior persons, became also lords with respect to those inferior per-
sons, as they were still tenants with respect to the king; and, thus
partaking of a middle nature, were called mesne, or middle lords. In
this manner are all the lands of the kingdom holden which are in the
hands of subjects; for, according to Sir Edward Coke, in the law of
England we have not properly allodium, which we have seen is the name
by which the feudists abroad distinguish such estates of the subject as
are not holden of any superior. [60]
All tenures being thus- derived, or supposed to be derived, from the
king, those that held immediately under him in right of his crown and
dignity were called his tenants in capite, or in chief, which was the
most honorable species of tenure, but at the same time subjected the
tenants to greater and more burthensome services than inferior tenures
did. This distinction ran through all the different sorts of tenure, of
which I now proceed to give an account.
There seems to have subsisted among our ancestors four principal
species of lay tenures to which all others may be reduced, the grand
criteria of which were the natures of the several services or renders
that were due to the lords from their tenants. The services, in respect
of their quality, were either free or base services; in respect of their
quantity and the time of exacting them, were either certain or uncertain.
Free services were such as were not unbecoming the character of a
soldier or a freeman to perform, as to serve under his lord in the wars,
to pay a sum of money, and the like. [61] Base services were such as
were only fit for peasants or persons of a servile rank, as to plough the
1. See ante, p. *52, note.
CHAP. V.] "' v ANCIENT ENGLISH TENURES. 163
lord's land, to make his hedges, to carry out his dung, or other mean
employments. The certain services, whether free or base, were such as
were stinted In quantity, and could not be exceeded on any pretence,
as to pay a stated annual rent, or to plough such a field for three days.
The uncertain depended upon unknown contingencies; as, to do military
service in person, or pay an assessment in lieu of it when called upon,
or to wind a horn whenever the Scots invaded the realm, which are
free services, or to do whatever the lord should command, which is a
base or villein service.
From the various combinations of these services have arisen the four
kinds of lay tenure which subsisted in England till the middle of the
last century, and three of which subsist to this day. Of these Bracton
(who wrote under Henry III.) seems to give the clearest and most com-
pendious account of any author, ancient or modern, of which the fol-
lowing is the outline or abstract: "Tenements are of two kinds: frank-
tenement and villeuage. And of frank-te*hements, some are held freely
in consideration of homage and knight-service; others in free-socage, with
the service of fealty only." And again: "Of villenages, some are pure
and others privileged. He that holds in pure villenage shall do what-
ever is commanded him, and always be bound to an uncertain service.
The other kind of villenage is called villein-socage, and these villein-
socmen do villein services, but such as are certain and determined."
Of which the sense seems to be as follows: First, where the service
was free but uncertain, as military service with homage, that tenure was
called the tenure in chivalry (per servitium militare), or by knight-ser-
vice. [62] Secondly, where the service was not only free, but also
certain, as by fealty only, by rent and fealty, &c., that tenure was called
liberum socagium, or free socage. These were the only fi'ee holdings or
tenements, the others were villenous or servile; as, thirdly, where the
service was base in its nature and uncertain as to time and quantity, the
tenure was purum villenagium (absolute, or pure villenage). Lastly,
where the service was base in its nature but reduced to a certainty, this
was still villenage, but distinguished from the other by the name of
privileged villenage (villenagium privikgiatum) ; or it might be still called
socage (from the certainty of its services), but degraded by their baseness
into the inferior title of villanum socagium (villein-socage).
I. The first, most universal, and esteemed the most honorable species
of tenure, was that by knight-service. This differed in very few points,
as we shall presently see, from a pure and proper feud, being entirely
military, and the general effect of the feodal establishment in England.
To make a tenure by knight-service, a determinate quantity of land was
necessary, which was called a knight's fee (feodum militare), the measure
of which in 3 Edw. I. was estimated at twelve ploughlands, and its value
(though it varied with the times) in the reign of Edward I. and Edward
II. was stated at 20'. per annum. And he who held this proportion of
land (or a whole fee) by knight-service was bound to attend his lord to
164: ANCIENT ENQLISH TENURES. [BOOK II.
the wars for forty days In every year if called upon, which attendance
was his reditvs, or return, his rent or service for the land he claimed to
hold. If he held only half a knight's fee, he was only bound to attend
twenty days, and so in proportion.
This tenure of knight-service had all the marks of a strict and regular
feud. It was granted by words of pure donation (fcdi et concessi) , was
transferred by investiture or delivering corporal possession of the land,
usually called livery of seisin, and was perfected by homage and fealty.
[63] It also drew after it these seven fruits and consequences, as in-
separably incident to the tenure in chivalry, viz.: aids, relief, primer
seisin, wardship, marriage, fines for alienation, and escheat.
1. Aids were originally mere benevolences granted by the tenant to
his lord in times of difficulty and distress, but in process of time they
grew to be considered as a matter of right and not of discretion. These
aids were principally three: First, to ransom the lord's person if taken
prisoner; secondly, to make the lord's eldest son a knight, a matter
that was formerly attended with great ceremony, pomp, and expense;
thirdly, to marry the lord's eldest daughter, by giving her a suitable
portion.
2. Relief (relevivm) was before mentioned as incident to every feodal
tenure, by way of fine or composition with the lord for taking up the
estate, which was lapsed or fallen in by the death of the last tenant. [65]
But though reliefs had their original while feuds were only life-estates,
yet they continued after feuds became hereditary, and were therefore
looked upon very justly as one of the greatest grievances of tenure, es-
pecially when at the first they were merely arbitrary and at the will
of the lord, so that if he pleased to demand an exorbitant relief it was
in effect to disinherit the heir.
3. Primer seisin was a feodal burthen only incident to the king's ten-
ants in capite, and not to those who held of inferior or mesne lords. [66]
It was a right which the king had, when any of his tenants in capite 2
died seised of a knight's fee, to receive of the heir (provided he were
of full age) one whole year's profits of the lands if they were in immedi-
ate possession, and half a year's profits if the lands were in reversion
expectant on an estate for life.
4. These payments were only due if the heir was of full age; but if
he was under the age of twenty-one, being a male, or fourteen, being a
female, the lord was entitled to the wardship of the heir, and was
called the guardian in chivalry. [67] This wardship consisted in having
the custody of the body and lands of such heir, without any account of
the profits, till the age of twenty-one in males and sixteen in females.
5. But before they came of age there was still another piece of au-
thority which the guardian was at liberty to exercise over his infant
wards. I mean the right of marriage (maritagium, as contradistin-
2. In chief.
CHAP. V.] ANCIENT ENGLISH TENURES, 165
*
guished from matrimony), which in its feodal sense signifies the power
which the lord or guardian in chivalry had of disposing of his infant
ward in matrimony. [70] For while the infant was in ward the guardian
had the power of tendering him or her a suitable match, without dis-
paragement or inequality, which if the infants refused they forfeited the
value of the marriage (valorem maritagii) to their guardian, that' is,
so much as a jury would assess, or any one would bona fide^ give to the
guardian for such an alliance. And if the infants married themselves
without the guardian's consent, they forfeited double the value (duplicem
valorem maritagii).
6. Another attendant or consequence of tenure by knight-service was
that of fines due to the lord for every alienation, whenever the tenant
had occasion to make over his land to another. [71] This depended on
the nature of the feodal connection, it not being reasonable or allowed,
as we have before seen, that a feudatory should transfer his lord's gift
to another, and substitute a new tenant to do the service in his own
stead, without the consent of the lord; and as the feodal obligation was
considered as reciprocal, the lord also could not alienate his seignory
without the consent of his tenant, which consent of his was called an
attornment. [72] This restraint upon the lords soon wore away; that
upon the tenants continued longer. For when everything came in pro-
cess of time to be bought and sold, the loj'ds would not grant a license
to their tenants to aliene without a fine being paid, apprehending that
if it was reasonable for the heir to pay a fine or relief on the renovation
of his paternal estate, it was more reasonable that a stranger should
make the same acknowledgment on his admission to a newly purchased
feud. With us in England these fines seem only to have been exacted
from the king's tenants in capite,* who were never able to aliene without
a license; but as to common persons, they were at liberty, by Magna Carta
and the statute of quia cmptores* (if not earlier), to aliene the whole
of their estate, to be holden of the same lord as they themselves held
it of before. 6
3. In good faith. Matild his eldest daughter; and Si-
4. In chief. mon de Montford gave the same king
5. Because purchasers. 10,000 marks to have the custody of
6. What fruitful sources of revenue the lands and heir of Gilbert de Un-
these wardships and marriages of the franville, with the heir's marriage, a
tenants, who held lands by knight's sum equivalent to a hundred thou-
service, were to the crown, will ap- sand pounds at present.'' In *his case
pear from the two following instances, the estate must have been large, the
collected among others by Lord Lyttle- minor young, and the alliance honour-
ton, Hist. Hen. II., 2 vol. 296. " John able. For, as Mr. Hargrave informs
earl of Lincoln gave Henry the Third us, who has well described this spe-
3000 marks to have the marriage of cies of guardianship, " the guardian
Richard de Clare, for the benefit of in chivalry was not accountable for
1GG
ANCIENT ENGLISH TENURES.
[BooK IT.
7. The last consequence of tenure in chivalry was escheat, which is
the determination of the tenure or dissolution of the mutual bond be-
tween the lord and tenant from the extinction of the blood of the latter
by either natural or civil means; if he died without heirs of his blood,
or if his blood was corrupted and stained by commission of treason
or 'felony, whereby every inheritable quality was entirely blotted out
and abolished. [73] In such cases the lands escheated, or fell back to
the lord of the fee; that is, the tenure was determined by breach of the
original condition expressed or implied in the feodal donation. 7
The description here given is that of a knight-service proper, which
was to attend the king in his wars. There were also some other species
of knight-service, so called, though improperly, because the service or
render was of a free and honorable nature, and equally uncertain as to
the time of rendering as that of knight-service proper, and because they
were attended with similar fruits and consequences. Such was the tenure
by grand serjeanty (per magnum servitiiim)* whereby the tenant was
bound, instead of serving the king generally in his wars, to do some
special honorary service to the king in person, as to carry his banner,
his sword, or the like, or to be his butler, champion, or other officer at
the profits made of the infant's lands,
during the wardship, but received
them for his own private emolument,
subject only to the bare maintenance
of the infant. And this guardianship,
being deemed more an interest for the
profit of the guardian, than a trust
for the benefit of the ward, was sale-
able and transferable, like the ordi-
nary subjects of property, to the best
bidder; and if not disposed of, was
transmissible to the lord's personal
representatives. Thus the custody of
the infant's person, as well as the
care of his estate, might devolve upon
the most perfect stranger to the in-
fant: one prompted by every pecuni-
ary motive to abuse the delicate and
important trust of education, with-
out any. ties of blood or regard to
counteract the temptations of inter-
est, or any sufficient authority to re-
strain him from yielding to their in-
fluence. Co. Litt. 88, n. 11. One
cannot read this without astonish-
ment, that such should continue to be
the condition of the country till the
year 1660, which, from the exterm-
ination of these feudal oppressions,
ought to be regarded as a memorable
sera in the history of our law and
liberty.
7. By the statute of 54 Geo. III.,
c. 145, it is enacted, that no attainder
for felony (after the passing of the
act), except in cases of high treason,
petit treason, or murder, shall extend
to the disinheriting of any heir, or to
the prejudice of the right or title of
any other person than the offender,
during his natural life only; and that
it shall be lawful to the person to
whom the right or interest of or in
any lands, tenements, or heredita-
ments, after the death of such of-
fender, would have appertained, if no
such attainder had been, to enter in-
to the same. See U. S. Const., art.
3. sec. 3, cl. 2. and the constitutions
of the several states.
8. By great service.
CHAP. V.] ANCIENT ENGLISH TENURES. 167
his coronation. Tenure by cornag"e, which was to wind a horn when the
Scots or other enemies entered the land, in order to warn the king's
subjects, was (like other services of the same nature) a species of grand
serjeanty. [74]
These services, both of chivalry and grand serjeanty, were all per-
sonal and uncertain as to their quantity or duration. But the personal
attendance in knight-service growing troublesome and inconvenient in
many respects, the tenants found means of compounding for it by first
sending others in their stead, and in process of time making a pecuniary
satisfaction to the lords in lieu of it. This pecuniary satisfaction at last
came to be levied by assessments, at so much for every knight's fee,
and therefore thrs kind of tenure was called scutagium in Latin, or
servitium scutif scutum being then a well-known denomination for money.
And, in like manner, it was called in our Norman-French escuage, being
indeed a pecuniary instead of a military service. The first time this ap-
pears to have been taken was in the 5 Hen. II., on account of his ex-
pedition to Toulouse, but it soon came to be so universal that personal
attendance fell quite into disuse. Hence we find in our ancient his-
tories that from this period, when our kings went to war, they levied
scutages on their tenants that is, on all the landholders of the king-
dom to defray their expenses and to hire troops; and these assessments
in the time of Hen. II. seem to have been made arbitrarily and at the
king's pleasure, which prerogative being greatly abused by his suc-
cessors, it became matter of national clamor, and King John was obliged
to consent by his Magna Carta that no scutage should be imposed with-
out consent of parliament.
At length the military tenures, with all their heavy ap-
pendages (having during the usurpation been discon-
tinued), were destroyed at one blow by the statute 12 Car.
II. c. 24 [1660], which enacts " that the court of wards and
liveries, and all wardships, liveries, primer seisins, and
ousterlemains, values, and forfeitures of marriage, by rea-
son of any tenure of the king or others, be totally taken
away. And that all fines for alienation, tenures by homage,
knight-service, and escuage, and also aids for marrying the
daughter or knighting the son, and all tenures of the king
in capite, be likewise taken away. And that all sorts of
tenures, held of the king or others, be turned into free and
common socage, save only tenures in frankalmoign, copy-
liolds, and the honorary services (without the slavish part)
of grand serjeanty. ' '
8. Service of money.
1C8 MODERN ENGLISH TENURES. [BOOK II.
CHAPTER VI.
OF THE MODERN ENGLISH TENURES.
Although, by the means that were mentioned in the pre-
ceding chapter, the oppressive or military part of the
feodal constitution itself was happily done away, yet we
are not to imagine that the constitution itself was utterly
laid aside and a new one introduced in its room, since by
the statute 12 Car. II. the tenures of socage and frankal-
moign, the honorary services of grand serjeanty, and the
tenure by copy of court roll were reserved, nay, all ten-
ures in general, except frankalmoign, grand serjeanty, and
copyhold, were reduced to one general species of tenure,
then well known and subsisting, called free and common
socage. '[78]
The military tenure, or that by knight-service, consisted
of what were reputed the most free and honorable services,
but which in their nature were unavoidably uncertain in
respect to the time of their performance. The second
species of tenure, or free-socage, consisted also of free and
honorable services, but such as were liquidated and reduced
to an absolute certainty. And this tenure not only subsists
to this day, but has in a manner absorbed and swallowed
up (since the statute of Charles II.) almost every other
species of tenure. And to this we are next to proceed. [79J
II. Socage, in its most general and extensive significa-
tion, seems to denote a tenure by any certain and determi-
nate service. And in this sense it is by our ancient writers
consequently put in opposition to chivalry, or knight-ser-
vice, where the render was precarious and uncertain. 1
Socage is of two sorts: free-socage, where the services
are not only certain but honorable, and villein-socage, where
the services, though certain, are of a baser nature.
As the grand criterion and distinguishing mark of this
species of tenure [free and common socage] are the having
1. See ante, p. *52, note.
CHAP. VI.] MODERN ENGLISH TENURES. 169
its renders or services ascertained, it will include under it
all other methods of holding free lands by certain and in-
variable rents and duties, and, in particular, petit sergeanty,
tenure in burgagc, and gavelkind. [81]
Petit serjeanty bears a great resemblance to grand serjeanty; for as
the one is a personal service, so the other is a rent or render, both tend-
ing to some purpose relative to the king's person. [82] Petit serjeanty,
as defined by Littleton, consists in holding lands of the king by the ser-
vice of rendering to him annually some small implement of war, as a
bow, a sword, a lance, an arrow, or the like.
Tenure in Burgage is described by Glanvil, and is expressly said by
Littleton to be but tenure in socage: and it is where the king or other
person is lord of an ancient borough in which the tenements are held
by a rent certain. It is indeed only a kind of town socage, as common
socage, by which other lands are holden, is usually of a rural nature.
A bprough, as we have formerly seen, is usually distinguished from other
towns by the right of sending members to parliament, and, where the
Tight of election is by burgage tenure, that alone is a proof of the anti-
quity of the borough. Tenure in burgage, therefore, or burgage tenure,
is where houses, or lands .which were formerly the scite of houses, in
an ancient borough are held of some lord in common socage by a certain
established rent. The free socage in which these tenements are held
seems to be plainly a remnant of Saxon liberty, which may also account
lor the great variety of customs affecting many of these tenements so
held in ancient burgage, the principal and most remarkable of which
is that called Borough English, so named in contradistinction, as it were,
to the Norman customs, viz., that the youngest son, and not the eldest,
succeeds to the burgage tenement on the death of his father. [83] Other
special customs there are in different burgage tenures, as that, in some,
the wife shall be endowed of all her husband's tenements, and not of the
third part only, as at the common law; and that, in others, a man might
dispose of his tenements by will, which in general was not permitted
after the Conquest till the reign of Henry VIII., though in the Saxon
times it was allowable. [84]
The distinguished properties of tennre in gavelkind [which prevails
principally in Kent] are various; some of the principal are these: 1.
The tenant is of age sufficient to aliene his estate by feoffment at the
age of fifteen. 2. The estate does not escheat in case of an attainder
nd execution for felony, their maxim being " the father to the bough,
the son to the plough." 3. In most places he had a power of devising
lands by will before the statute for that purpose was made. 4. The lands
descend, not to the eldest, youngest, or any one son only, but to all the
sons together, which was indeed anciently the most usual course of
descent all over England, though in particular places particular customs
prevailed. [85]
170 MODERN ENGLISH TENURES. [Boox II.
Having thus distributed and distinguished the several species of tenure
in free-socage, I proceed next to show that this also partakes very
strongly of the feodal nature. The tokens of their feodal original will
evidently appear from a short comparison of the incidents and conse-
quences of socage tenure with those of tenure in chivalry. [86]
1. In the first place, then, both were held of superior lords: one of the
king, either immediately or as lord paramount, and (in the latter case)
of a subject or mesne lord between the king and his tenant.
2. Both were subject to the feodal return, render, rent, or service of
some sort or other, which arose from a supposition of an original grant
from the lord to the tenant. In the military, or more proper feud, this
was from its nature uncertain; in socage, which was a feud of the im-
proper kind, it was certain, fixed, and determinate (though perhaps noth-
ing more than bare fealty), and so continues to this day.
3. Both were, from their constitution, universally subject (over and
above all other renders) to the oath of fealty, or mutual bond of obliga-
tion between the lord and tenant.
4. The tenure in socage was subject of common right to aids for knight-
ing the son and marrying the eldest daughter. [87]
5. Relief is due upon socage tenure as well as upon tenure in chivalry,
hut the manner of taking it is very different. The relief on a knight's
fee was 5f., or one quarter of the supposed value of the land; but a
scoage relief is one year's rent or render, payable by the tenant to the
lord, be the same either great or small. Reliefs in knight-service were
only payable if the heir at the death of his ancestor was of full age;
but in socage they were due even though the heir was under age, be-
cause the lord has no wardship over him. The statute of Charles II.
reserves the reliefs incident to socage tenures, and therefore, wherever
lands in fee-simple are holden by a rent, relief is still due of common
right upon the death of a tenant.
6. Primer seisin was incident to the king's socage tenants in capite, 2
as well as to those by knight-service. But tenancy in capite as well as
primer seisins are, among the other feodal burthens, entirely abolished
by the statute.
7. Wardship is also incident to tenure in socage, but of a nature very
different fron. that incident to knight-service. For if the inheritance
descend to an infant under fourteen, the wardship of him does not, nor
ever did, belong to the lord of the fee, because in this tenure, no military
or other personal service being required, there was no occasion for the
lord to take the profits in order to provide a proper substitute for his
infant tenant, but his nearest relation (to whom the inheritance cannot
descend) shall be his guardian in socage, and have the custody of his
land and body till he arrives at the age of fourteen. [88] At fourteen,
this wardship in socage ceases, and the heir may oust the guardian and
2. In chief.
CHAP. VI.] MODERN ENGLISH TENURES. 171
call him to account for the rents and profits; for at this age the law
supposes him capable of choosing a guardian for himself. But as the
wardship ceased at fourteen, there was this disadvantage attending it,
that young heirs, being left at so tender an age to choose their own.
guardians till twenty-one, might make an improvident choice. There-
fore, when almost all the lands in the kingdom were turned into socage
tenures, the same statute, 12 Car. II. c. 24, enacted that it should be in
the power of any father by will to appoint a guardian till his child
should attain the age of twenty-one; and if no such appointment be
made, the court of chancery will frequently interpose and name a guar-
dian, to prevent an infant heir from improvidently exposing himself to
ruin.
8. Marriage, or the valor maritagii? was not in socage tenure any per-
quisite or advantage to the guardian, but rather the reverse. For if the
guardian married his ward under the age of fourteen, he was bound to
account to the ward for the value of the marriage, even though he took
nothing for it, unless he married him to advantage. At fourteen years
of age the ward might have disposed of himself in marriage without any
consent of his guardian, till the late act for preventing clandestine mar-
riages. [89]
9. Fines for alienation were, I apprehend, due for lands holden of the
king in capite by socage tenure, as well as in case of tenure by knight-
service.
10. Escheats are equally incident to tenure in socage as they were to
tenure by knight-service, except only in gavelkind lands, which are (as
is before mentioned) subject to no escheats for felony, though they are
to escheats for want of heirs.
Thus much for the two grand species of tenure, under which almost
all the free lands of the kingdom were holden till the Restoration in
1660, when the former was abolished and sunk into the latter, so that the
lands of both sorts are now holden by one universal tenure of -free and
common socage.
The other grand division of tenure, mentioned by Bracton,
as cited in the preceding chapter, is that of villenage, as
contradistinguished from libcrum tenemcntum, or frank
tenure. And this he subdivided into two classes, pure and
privileged villenage; from whence have arisen two other
species of our modern tenures.
III. From the tenure of pure villenage have sprung our
present copyhold tenures, or tenure by copy of court roll at
the will of the lord. 4
3. Value of the marriage. 4. Not applicable to this country.
172 MODERN ENGLISH TENURES. [BooK II.
In order to obtain a clear idea of this tenure, it will be previously
necessary to take a short view of the original and nature of manors. [90]
A manor, manerium, a manendof because the usual residence of the
owner, seems to have been a district of ground held by lords or great
personages, who kept in their own hands so much land as was neces-
sary for the use of their families, which were called tcrrae dominicales or
demesne lands, being occupied by the lord, or dominus manerii,* and his
servants. The other, or tenemental, lands they distributed among their
tenants, which, from the different modes of tenure, were distinguished
by two different names. First, book-land, or charter-land, which was
held by deed under certain rents and free-services, and in effect differed
nothing from the free-socage lands; and from hence have arisen most
of the free-hold tenants who hold of particular manors, and owe suit
and service to the same. The other species was called folk-land, which
was held by no assurance In writing, but distributed among the common
folk or people at the pleasure of the lord and resumed at his discretion,
being indeed land held in villenage, which we shall presently describe
more at large. The residue of the manor, being uncultivated, was termed
the lord's waste, and served for public roads and for common or pasture
to the lord and his tenants. Manors were formerly called baronies, as
they are still lordships, and each lord or baron was empowered to hold
a domestic court, called the court-baron, for redressing misdemeanors
and nuisances within the manor, and settling disputes of property among
the tenants. This court is an inseparable ingredient of every manor,
and if the number of suitors should so fail as not to leave sufficient to
make a jury or homage, that is, two tenantb at least, the manor itself
is lost. [91]
In the early times of our legal constitution the king's greater barons,
who had a large extent of territory held under the crown, granted out
frequently smaller manors to inferior persons to be holden of them-
selves, which do therefore now continue to be held under a superior
lord, who is called in such cases the lord paramount over all these
manors, and his seignory is frequently termed an honor, not a manor,
especially if it hath belonged to an ancient feodal baron, or hath been
at any time in the hands of the crown. In imitation whereof, these in-
ferior lords began to carve out and grant to others still more minute
estates, to be held as of themselves, and were so proceeding downwards
in infinitum,": till the superior lords observed that by .this method of
subinfeudation they lost all their feodal profits of wardships, marriages,
and escheats, which fell into the hands of these mesne, or middle lords,
who were the immediate superiors of the terre-tenant, or him who occu-
pied the land; and also that the mesne lords themselves were so im-
poverished thereby, that they were disabled from performing their ser-
5. From remaining. 7. In infinity.
6. The lord of the manor.
CHAP. VI.] MODERN ENGLISH TENURES. 173
vices to their own superiors. This occasioned, first, that provision in
the thirty-second chapter of Magna Carta, 9 Hen. III. (which is not to
be found in the first charter granted by that prince, nor in the Great
Charter of King John), that no man should either give or sell his land
without reserving sufficient to answer the demand of his lord, and after-
wards the statute of Westm. 8, or quia emptores, 8 18 Edw. 1, c. 1, which
directs that, upon all sales or feoffments of land, the feoffee shall hold
the same, not of his immediate feoffor, but of the chief lord of the ee,
of whom such feoffor himself held it. But these provisions not extend-
ing to the king's own tenants in capite? the like law concerning them is
declared by the statutes of prerogatives, regis,i 17 Edw. II. c. 6, and of 34
Edw. III. c. 15, by which last all subinfeudations previous to the reign
of King Edward I. were confirmed, but all subsequent to that period were
left open to the king's prerogative. [92] And from hence it is clear
that all manors existing at this day must have existed as early as King
Edward I., for it is essential to a manor that there be tenants who hold
of the lord; and by the operation of these statutes no tenant in capite
since the accession of that prince, and no tenant of a common lord since
the statute of quia emptores, could create any new tenants to hold of him-
self.
Now with regard to the folk-land, or estates held in yillenage, this
was a species of tenure neither strictly feodal, Norman, or Sexon, but
mixed and compounded of them all; and which also, on account of the
heriots that usually attend it, may seem to have somewhat Danish in
its composition. Under the Saxon government there were, as Sir Wil-
liam Temple speaks a sort of people in a condition of downright servi-
tude, used and employed in the most servile works, and belonging, both
they, their children and effects, to the lord of the soil, like the rest of
the cattle or stock upon it. These seem to have been those who held
what was called the folk-land, from which they were rmovable at the
lord's pleasure. On the arrival of the Normans here, it seems not im-
probable that they who were strangers to any other than a feodal state
might give some sparks of enfranchisement to such wretched persons
as fell to their share by admitting them as well as others to the oath
of fealty, which conferred a right of protection and raised the tenant
to a kind of estate superior to downright slavery, but inferior to every
other condition. This they called villenage and the tenants villeins,
either from the word vilis, or else, as Sir Edward Coke tells us, a villa,
because they lived chiefly in villages and were employed in rustic
works of the most sordid kind, resembling the Spartan helotes, to whom
alone the culture of the lands was consigned, their rugged masters,
like our northern ancestors, esteeming war the only honorable employ-
ment of mankind.
8. Because purchasers. 1. The king's prerogative.
9. In chief.
174 MODERN ENGLISH TENURES. [BOOK II.
These villeins, belonging principally to lords of manors, were either
villeins regardant, that is, annexed to the manor or land, or else they
were in gross, or at large, that is, annexed to the person of the lord
and transferable by deed from one owner to another. [93] They could
not leave their lord without his permission, but if they ran away or
were purloined from him, might be claimed and recovered by action,
like beasts or other chattels. They held, indeed, small portions of land
by way of sustaining themselves and families, but it was at the mere
will of the lord, who might dispossess them whenever he pleased; and
it was upon villein services, that is, to carry out dung, to hedge and
ditch the lord's demesnes, and any other the meanest offices. And their
services were not only base, but uncertain both as to their time and
quantity. A villein could acquire no property either in lands or goods,
but, if he purchased either, the lord might enter upon them, oust the
villein, and seize them to his own use, unless he contrived to dispose
of them again before the lord had seized them, for the lord had then
lost his opportunity.
In many places also a fine was payable to the lord if the villein pre-
sumed to marry his daughter to any one without leave from the lord,
and, by the common law, the lord might also bring an action against
the husband for damages in thus purloining his property. For the
children of villeins were also in the same state of bondage with their
parents, whence they were called in Latin nativi, which gave rise to the
female appellation of a villein, who was called a neife. [94] In case
of a marriage between a freeman and a neife, or a villein and a free-
woman, the issue followed the condition of the father, being free if he
was free, and villein if he was villein, contrary to the maxim of the
civil law, that partus sequitur ventrem. But no bastard could be born a
villein, because of another maxim in our law, he is nullius filius;? an j
as he can gain nothing by inheritance, it were hard that he should lose
his natural freedom by it. The law, however, protected the persons of
villeins, as the king's subjects, against atrocious injuries of the lord.
For he might not kill or maim his villein,* though he might beat him with
impunity, since the villein had no action or remedy at law against his
lord, but in case of the murder of his ancestor or the maim of his own
person. Neifes, indeed, had also an appeal of rape in case the lord
violated them by force.
Villeins might be enfranchised by manumission, which is either ex-
press or implied; express, as where a man granted to the villein a deed
of manumission; implied, as where a man bound himself in a bond to
his villein for a sum of money, granted him an annuity by deed, or
gave him an estate in fee for life or years. For this was dealing with
his villein on the footing of a freeman; it was in some of the instances
giving him an action against his lord, and in others vesting in him an
2. The son of no one.
CHAP. VL] MODERN ENGLISH TENURES. 175
ownership entirely inconsistent with his former state of bondage. So
also if the lord brought an action against his villein, this enfranchised
him; for as the lord might have a short remedy against his villein by
seizing his goods (which was more than equivalent to any damages he
could recover), the law, which is always ready to catch at anything
in favor of liberty, presumed that by bringing this action he meant to
set his villein on the same footing with himself, and therefore held it an
implied manumission. But in case the lord indicted him for felony it
was otherwise, for the lord could not inflict a capital punishment on
his villein without calling in the assistance of the law. [95]
Villeins by these and many other means in process of time gained
considerable ground on their lords, and in particular strengthened the
tenure of their estates to that degree that they came to have in them
an interest in many places full as good, in others better than their
lords. For the good-nature and benevolence of many lords of manors
having time out of mind permitted their villeins and their children to
enjoy their possessions without interruption in a regular course of
descent, the common law, of which custom is the life, now gave them
title to prescribe against their lords, and, on performance of the same
services, to hold their lands in spite of any determination of the lord's
will. For though in general they are still said to hold their estates at
the will of the lord, yet it is such a will as is agreeable to the custom
of the manor, which customs are preserved and evidenced by the rolls
of the several courts baron in which they are entered, or kept on foot
by the constant immemorial usage of the several manors in which the
lands lie.
And as such tenants had nothing to show for their estates
but these customs and admissions in pursuance of them
entered on those rolls, or the copies of such entries wit-
nessed by the steward, they now began to be called tenants
by copy of court-roll, and their tenure itself a copyhold.
Thus copyhold tenures, although very meanly descended,
yet come of an ancient house, for from what has been
premised it appears that copyholders are in truth no other
but villeins who, by a long series of immemorial encroach-
ments on the lord, have at last established a customary
right to those estates which before were held absolutely at
the lord's will. 3
Which affords a very substantial reason for the great variety of cus-
toms that prevail in different manors with regard both to the descent
3. Nothing of the sort in this country.
176 MODERN ENGLISH TENURES. [BooKlI.
of the estates and the privileges belonging to the tenants. [96] And
these encroachments grew to be so universal that -when tenure in villen-
age was virtually abolished (though copyholds were reserved) by the
statute of Charles II., there was hardly a pure villein left in the nation.
As a further consequence of what has been premised, we
may collect these two main principles, which are held to be
the supporters of the copyhold tenure, and without which
it cannot exist: 1. That the lands be parcel of and situate
within that manor under which it is held [97] ; 2. That they
have been demised, or demisable, by copy of court-roll im-
memorially. For immemorial custom is the life of all ten-
ures by copy, so that no new copyhold can, strictly speak-
ing, be granted at this day.
In some manors, where the custom hath been to permit the heir to
succeed the ancestor in his tenure, the estates are styled copyholds of
inheritance; in others, where the lords have been more vigilant to main-
tain their rights, they remain copyholds for life only. For the custom
of the manor has in both cases so far superseded the will of the lord,
that, provided the services be performed or stipulated for by fealty, he
cannot, in the first instance, refuse to admit the heir of his tenant upon
h:s death, nor, in the second, can he remove his present tenant so long
as he lives, though he holds nominally by the precarious tenure of his
lord's will.
Tlie fruits and appendages of a copyhold tenure that it hath in com-
mon with free tenures, are fealty, services (as well in rents as other-
wise', reliefs, and escheats. The two latter belong only to copyholds of
inheritance, the former to those for life also. But besides these, copy-
holds have also heriots, wardship, and fines. Heriots are a render of the
best beast or other good (as the custom may be) to the lord on the death
of the tenant. These are incident to both species of copyhold, but
wardship and fines to those of inheritance only. Wardship, in copyhold
estates, partakes both of that in chivalry and that in socage. Like that
in chivalry, the lord Is the legal guardian, who usually assigns some
relation of the infant tenant to act in his stead and he, like the guardian
in socage, is accountable to his ward for the profits. [98] Of fines, some
are in the nature of primer seisins due on the death of each tenant,
others are mere fines for the alienation of the lands. In some manor?
only one of these sorts can be demanded, in some both, and in others
neither. They are sometimes arbitrary and at the will of the lord,
sometimes fixed by custom; but even when arbitrary, the courts ot
law, in favor of the liberty of copyholds, have tied them down to be
reasonable in their extent.
CHAP. VL] MODERN ENGLISH TENURES. 177
Thus much for the ancient tenure of pure villenage, and the modern
one of copyhold at the will of the lord, which is lineally descended from it.
IV. There is yet a fourth species of tenure, described by
Bracton under the name sometimes of privileged villenage,
and sometimes of villeiu-socagc. This, he tells us, is such
as has been held of the kings of England from the Conquest
downwards, that the tenants herein " villa-no, facinnt
servitia, sed certa ct deter minata,"* that they cannot aliene
or transfer their tenements by grant or feoffment any more
than pure villeins can, but must surrender them to the lord
or his steward, to be again granted out and held in villen-
age. [99] And from these circumstances we may collect
that what he here describes is no other than an exalted
species of copyhold subsisting at this day, viz., 'the tenure
in ancient demesne, to which, as partaking of the baseness
of villenage in the nature of its services and the freedom of
socage in their certainty, he has therefore given a name
compounded out of both, and calls it ciUannm socagium. 5
Ancient demesne consists of those lands or manors which,
though now perhaps granted out to private subjects, were
actually in the hands of the crown in the time of Edward
the Confessor or William the Conqueror, and so appear to
have been by the great survey in the exchequer called
domesday-book. Lands holden by this tenure [ancient
demesne] are therefore a species of copyhold, and as such
preserved and exempted from the operation of the statute
of Charles II. [100] Yet they differ from common copy-
holds, principally in the privileges before mentioned [i. e.,
that their services were fixed and determinate, that they
could not be compelled, like pure villeins, to relinquish their
tenements at the lord's will or to hold them against their
own, and that they had an interest equivalent to a freehold],
as also they differ from freeholders by one especial mark
and tincture of villenage, noted by Bracton and remaining
to this day, viz>, that they cannot be conveyed from man to
man by the general common law conveyances of feoffment
4. They perform ' villein services, 5. Villein socage.
but certain and determined.
12
178
MODERN ENGLISH TENURES.
[BOOK IT.
and the rest, but must pass by surrender to the lord or his
steward in the manner of common copyholds: yet with this
distinction, that in the surrender of these lands in ancient
demesne, it is not used to say, " to hold at the will of the
lord," in their copies, but only, " to hold according to the
custom of the manor." [101]
Upon the whole it appears that whatever changes and
alterations tenures have in process of time undergone, from
the Saxon era to 12 Car. II., all lay tenures are now in effect
reduced to two species: free tenure in common socage, and
base tenure by copy of court-roll. 6
There is still one other species of tenure reserved by the statute of
Charles II. which is of a spiritual nature, and called the tenure in frank-
almoign.
V. Tenure in frankalmoign, in libera eleemosyna or free alms, is that
M hereby a religious corporation, aggregate or sole, holdeth lands of the
donor to them and their successors forever. The service which they
were bound to render for these lands was not certainly defined, but only
in general to pray for the soul of the donor and his heirs, dead or alive;
and therefore they did no fealty (which is incident to all other services
buc this), because this divine service was of a higher and more exalted
nature. This is the tenure by which almost all the ancient monasteries
and religious houses held their lands, and by which the parochial clergy
and very many ecclesiastical and eleemosynary foundations hold them
at this day, the nature of the service being upon the Reformation altered
and made conformable to the purer doctrines of the Church of Eng-
land. [102]
6. As before stated (ante, *52, vestige of the system that is at pres-
note), pll lands in this country are
allodial. Nevertheless a knowledge of
the feudal system is necessary to un-
derstand the present terminology.
Escheat seems to be the only real
ent in active force and this has been
largely modified by statutes. Consult
the local statutes. See, also, 3 Kent;
Com., 513.
CHAP. VII.] FREEHOLD ESTATES OF INHERITANCE. '
CHAPTER VII.
OF FREEHOLD ESTATES OF INHERITANCE.
An estate in lands, tenements, and hereditaments signifies
such interest as the tenant has therein, so that if a man
grants all his estate in Dale to A and his heirs, everything
that he can possibly grant shall pass thereby. 1 [103]
First, with regard to the quantity of interest which the
tenant has in the tenement, this is measured by its duration
and extent. Thus, either his right of possession is to sub-
sist for an uncertain period, during his own life or the life
of another man, to determine at his own decease or to re-
main to his descendants after him; or it is circumscribed
within a certain number of years, months, or days ; or, lastly,
it is infinite and unlimited, being vested in him and his
representatives forever. And this occasions the primary
division of estates into such as are freehold and such as are
less than freeJwld. [104]
An estate of freehold, liberum tenementum, or frank-
tenement, is such an estate in lands as is conveyed by livery
of seisin, or in tenements of any incorporeal nature, by
what is equivalent thereto. 2 And accordingly it is laid
down by Littleton that where a freehold shall pass, it be-
hooveth to have livery of seisin. As, therefore, estates of
inheritance and estates for life could not by common law
be conveyed without livery of seisin, these are properly
estates of freehold, and as no other estates are conveyed
with the same solemnity, therefore no others are properly
freehold estates.
Estates of freehold (thus understood) are either estates
of inheritance, or estates not of inheritance. The former
1. The word estate, does not denote hold ; but, though no longer neces-
the quantum (how much) of his prop- sary, it still, in the absence of stat-
erty; but the extent and nature of utes changing the rule, serves to de-
his interest therein. fine estates of freehold as those in
2. See post, *315. Livery of seisin which livery of seisin was formerly
is no longer necessary to pass a free- necessary.
180 FREEHOLD ESTATES OF INHERITANCE. [Boon II.
are again divided into inheritances absolute, or fee-simple,
and inheritances limited, one species of which we usually
call fee-tail.
I. Tenant in fee-simple (or, as he is frequently styled,
tenant in fee) is he that hath lands, tenements, or heredita-
ments to hold to him and his heirs forever, generally, abso-
lutely, and simply, without mentioning wliat heirs, but re-
ferring that to his own pleasure or to the disposition of the
law. The true meaning of the word fee (foedwn) is the
same with that of feud or fief, and in its original sense it is
taken in contradistinction to allodium; which latter the
writers on this subject define to be every man's own land
which he possesseth merely in his own right, without owing
any rent or service to any superior. [105] This is property
in its highest degree,. and the owner thereof hath absolution
ct direct nm dominium, 3 and therefore is said to be seised
thereof absolutely in dominico suo, in his own demesne.
But feodum, or fee, is that which is held of some superior
on condition of rendering him service, in which superior
the ultimate property of the land resides. And therefore
Sir Henry Spelman defines a feud or fee to be the right
which the vassal or tenant hath in lands to use the same
and take the profits thereof to him and his heirs, rendering
to the lord his due services, the mere allodial property of
the soil always remaining in the lord. This allodial prop-
erty no subject in England has, it being a received, and now
undeniable, principle in the law that all the lands in Eng-
land are holden, mediately or immediately, of the king-.
This is the primary sense and acceptation of the word fee.
But the doctrine, * ' that all lands are holden, ' ' having been
for so many ages a fixed and undeniable axiom, our English
lawyers do very rarely (of late years especially) use the
word fee in this its primary original sense, in contradis-
tinction to allodium; or absolute property, with which they
have no concern, but generally use it to express the con-
tinuance or quantity of estate. [106] A fee, therefore, in
3. Absolute and direct dominion.
CHAP. VII. ] FREEHOLD ESTATES OF INHERITANCE. 181
general, signifies an estate of inheritance, being the highest
and most extensive interest that a man can have in feud. 4
And when the term is used simply, without any other ad-
junct, or has the adjunct of simple annexed to it (as a fee,
or a fee-simple), it is used in contradistinction to a fee con-
ditional at the comimm law or a fee-tail by the statute, im-
porting an absolute inheritance, clear of any condition,
limitation, or restrictions to particular heirs, but descend-
ible to the heirs general, whether male or female, lineal or
collateral. And in no other sense than this is the king said
to be seised in fee, he being the feudatory of no man.
Taking, therefore, fee for the future, unless where other-
wise explained in this its secondary sense, as a state of in-
heritance, it is applicable to and may be had in any kind
of hereditaments, either corporeal or incorporeal. But
there is this distinction between the two species of heredita-
ments: that of a corporeal inheritance a man shall be said
to be seized in his demesne, as of fee; of an incorporeal one,
he shall only be said to be seized as of fee and not in his
demense.
The fee-simple, or inheritance, of lands and tenements is
generally vested and resides in some person or other, though
divers inferior estates may be carved out of it. [107] Yet
sometimes the fee may be in abeyance, that is (as the word
signifies), in expectation, remembrance, and contemplation
in law, there being no person in csse 5 in whom it can vest
and abide, though the law considers it as always potentially
existing, and ready to vest whenever a proper owner ap-
pears. Thus, in a grant to John for life, and afterwards
to the heirs of Richard, the inheritance is plainly neither
granted to John nor Richard, nor can it vest in the heirs of
Richard till his death, nam nemo est haeres viventis; 6 it
remains, therefore, in waiting or abeyance during the life
of Richard. 7 This is likewise always the case of a parson
4. This term has still the same sig- 7. " Where a remainder of inherit-
nifu-ation in American law. ance is limited in contingency by way
5 In being. of use or by devise, the inheritance in
6. For no one is heir of a living the meantime, if not otherwise dis-
person. posed of, remains in the grantor and
182
FREEHOLD ESTATES OF INHERITANCE. [Boos II.
of a church who hath only an estate therein for the terra of
his life, and the inheritance remains in abeyance. And
not only the fee, but the freehold also may be in abeyance,
as, when a parson dies, the freehold of his glebe is in abey-
ance until a successor be named, and then it vests in the
successor. 8
The word ' ' heirs ' ' is necessary in the grant or donation,
in order to make a fee or inheritance. 9 For if land be given
to a man forever, or to him and his assigns forever, this
vests in him but an estate for life.
This rule is now softened by many exceptions. [108]
For, 1, it does not extend to devises by will, in which a
more liberal construction is allowed. And therefore by a
devise to a man forever, or to one and his assigns forever,
or to one in fee-simple, the devisee hath an estate of in-
heritance; for the intention 1 of the devisor is sufficiently
plain from the words of perpetuity annexed, though he
hath omitted the legal words of inheritance. But if the
devise be to a man and his assigns, without annexing words
of perpetuity, there the devise shall take only an estate for
his heirs, or in the heirs of the tes-
tator, until the contingency happens
to take it out of them." Fcnrne,
font. Rem., 513, 4th Ed. The above
example, therefore, is a contingent re-
mainder, considered farther on. See,
also, 1 Bouvier Law Diet., Abeyance.
8. There hardly seems any neces-
sity to resort to abeyance, or 1o the
clouds, to explain the residence of the
inheritance, of of the freehold. In
the first case, the whole fee-simple is
conveyed to a sole corporation, the
parson and his successors; but if any
interest is not conveyed, it still re-
mains in the grantor and his heirs,
to whom, upon the dissolution of the
corporation, the estate will revert.
See 1 book, 484. And in tne second
onse, the freehold seems, in fact, from
the moment of the death of the par-
son, to rest and abide in the succes-
sor, who is brought into view and no-
tice by the institution and induction;
for after induction he can recover all
the rights of the church, which ac-
crued from the death of the prede-
cessor.
9. Still the rule in deeds of convey-
ance in this country, unless changed
by statute. Consult the local stat-
utes. See 44 & 45 Viet., ch. 41, sec.
63.
1. In wills the intention of the tes-
tator shall prevail, and the general
intention controls the particular in-
tention if there is an irreconcilable
conflict between them. See Schouler
on Wills (1910), 230> 231 and cases
cited; Gardner on Wills (1903), 368
and cases cited.
CHAP. VII.] FREEHOLD ESTATES OF INHERITANCE. 183
life, for it does not appear that the devisor intended any
more. 2. Neither does this rule extend to fines or. re-
coveries 2 considered as a species of conveyance; for there-
by an estate in fee passes by act and operation of law with-
out the word * * heirs, " as it does also, for particular reasons,
by certain other methods of conveyance, which have relation
to a former grant or estate, wherein the word ' ' heirs ' ' was
expressed. 3. In creations of nobility by writ, the peer so
created hath an inheritance in his title, without expressing
the word " heirs; " for heirship is implied in the creation,
unless it be otherwise specially provided. But in creations
by patent, which stricti juris, the word " heirs " must be
inserted, otherwise there is no inheritance. 4. In grants
of lands to sole corporations and their successors, the word
" successors " supplies the place of " heirs; " 3 for as heirs
take from the ancestor, so doth the successor from the pre-
decessor. But in a grant of lands to a corporation aggre-
gate, the word ' l successors ' ' is not necessary, though usu-
ally inserted; for albeit such simple grant be strictly only
an estate for life, yet as that corporation never dies, such
estate for life is perpetual, or equivalent to a fee-simple,
and therefore the law allows it to be one. [109] 5. Lastly,
in the case of the king 1 , a fee-simple will vest in him without
the word " heirs " or " successors " in the grant, partly
from prerogative royal, and partly from a reason similar to
the last, because the king in judgment of law never dies.
II. We are next to consider limited fees, or such estates
of inheritance as are clogged and confined with conditions
or qualifications of any sort. And these we may divide into
two sorts: 1. Qualified or base fees; and 2. Fees condi-
tional, so called at the common law, and afterwards fees-
tail, in consequence of the statute de don is.
1. A base or qualified fee is such a one as hath a qualifi-
cation subjoined thereto, and which must be determined
whenever the qualification annexed to it is at an end. 4 As,
2. No longer in use in this country. 4. "A base or determinable fee is a
See post. fee-simple, which may be terminated
3. " Successors and assigns " are by the happening of a contingency."
words commonly used. " The most usual cases [says Mr.
184: FREEHOLD ESTATES OF INHERITANCE. [Boos II.
in the case of a grant to A and his heirs, tenants of the
itnnior of Dale, in this instance, whenever the heirs of A
cease to be tenants of that manor, the grant is entirely
defeated.
2. A conditional fee at the common law was a fee re-
strained to some particular heirs, exclusive of others: as
to the heirs of a man's body, by which only his lineal de-
scendants were admitted, in exclusion of collateral heirs;
or to the heirs male of his body, in exclusion both of col-
laterals and lineal females also. [110]
Now with regard to the condition annexed to these fees
by the common law, our ancestors held that such a gift (to
a man and the heirs of his body) was a gift upon condition
that it should revert to the donor if the donee had no heirs
of his body, but if he had, it should then remain to tho
donee. They therefore called it a fee-simple, on condition
that he had issue. Now we must observe that when any
condition is performed, it is thenceforth entirely gone, and
the thing to which it was before annexed becomes absolute,
and wholly unconditional. [Ill] So that as soon as the
grantee had any issue born, his estate was supposed to be-
come absolute by the performance of the condition, at least
for these three purposes: 1. To enable the tenant to alieno
the land, and thereby to bar not only his own issue, but
also the donor of his interest in the reversion. 2. To sub-
ject him to forfeit it for treason, which he could not do till
issue born, longer than for his own life, lest thereby inherit
ance of the issue and reversion of the donor might have
been defeated. 3. To empower him to charge the land with
rents, commons, and certain other incumbrances, so as to
bind his issue. However, if the tenant did not in fact aliene
the land, the course of descent was not altered by this per-
formance of the condition; for if the issue had afterwards
died, and then the tenant, or original grantee, had died
without making any alienation, the land by the terms of the
Hopkins] at the present time are that use ceases." See Hopkins, Real
where land is granted for a specified Prop., 178 and cases cited in notes,
use, to revert to the grantor when
CHAP. VII.] FREEHOLD ESTATES OF INHERITANCE. 185
donation could descend to none but the heirs of his body,
and therefore, in default of them, must have reverted to
the donor. For which reason, in order to subject the lands
to the ordinary course of descent, the donees of these con-
ditional fee-simples took care to aliene as soon as they had
performed the condition by having issue, and afterwards
re-purchased the lands, which gave them a fee-simple abso-
lute that would descend to the heirs general, according to
the course of the common law.
The nobility, who were willing to perpetuate their posses-
sions in their own families, to put a stop to this practice
procured the statute of Westminster the second (commonly
called the statute de donis conditionalibus) 5 to be made,
which revived in some sort the ancient feodal restraints
which were originally laid on alienations, by enacting that
from thenceforth the will of the donor be observed, and that
the tenements so given (to a man and the heirs of his body)
should at all events go to the issue, if there were any, or, if
none, should revert to the donor. [112]
Upon the construction of this act parliament, the judges
determined that the donee had no longer a conditional fee-
simple which became absolute and at his own disposal the
instant any issue was born, but they divided the estate into
two parts, leaving in the donee a. new kind of particular
estate which they denominated a fee-tail, and investing in
the donor the ultimate fee-simple of the land expectant on
the failure of issue, which expectant estate is what we now
call a reversion.
Having thus shown the original of estates-tail, I now
proceed to consider what things may, or may not, be en-
tailed under the statute de donis. [113] Tenements is the
only word used in the statute, and this Sir Edward Coke
expounds to comprehend all corporeal hereditaments what-
sover, and also all incorporeal hereditaments which savor
of the realty, that is, which issue out of corporeal ones, or
which concern, or are annexed to, or may be exercised
within the same, as rents, estovers, commons, and the like.
5. Concerning conditional gifts.
186 FREEHOLD ESTATES OF INHERITANCE. [Boox II.
Also offices and dignities which concern lands, or have re-
lation to fixed and certain places, may be entailed. But
mere personal chattels which savor not at all of the realty
cannot be entailed. Neither can an office which merely
relates to such personal chattels, nor an annuity, which
charges only the person, and not the lands of the grantor.
But in these last, if granted to a man and the heirs of his
body, the grantee hath still a fee-conditional at common
law, as before the statute, and by his alienation (after issue
born) may bar the heir or reversioner. An estate to a man
and his heirs for another's life cannot be entailed, for this
is strictly no estate of inheritance (as will appear here-
after), and therefore not within the statute dc donis.
Neither can a copyhold estate be entailed by virtue of the
xtatute, for that would tend to encroach^ upon and restrain
the will of the lord; but by the special custom of the manor
a copyhold may be limited to the heirs of the body, for here
the custom ascertains and interprets the lord's will.
Next, as to the several species of estates-tail, and how
they are respectively created. Estates-tail are either gen-
eral or special. Tail general is where lands and tenements
are given to one, and the heirs of his body begotten. Tenant
in tail special is where the gift is restrained to certain heirs
of the donee 's body, and.does not go to all of them in general.
And this may happen several ways. [114] I shall instance
in only one, as where lands and tenements are given to a
man and the heirs of his body, on Mary his now wife to be
begotten. Here no issue can inherit, but such special issue
as is engendered between them two, not such as the hus-
band may have by another wife; and therefore it is called
special tail.
Estates in general and special tail may either be in tail
male or tail female. As if lands be given to a man and his
heirs male of his body begotten, this is an estate in tail male
general; but if to a man and the heirs female of his body on
his.present wife begotten, this is an estate tail female special.
And in case of an entail mail, the heirs female shall never
inherit, nor any derived from them; nor, e con verso, the
heirs male, in case of a gift in tail female.
CHAP. VII.] FREEHOLD ESTATES OF INHERITANCE. 187
As the word heirs is necessary to create a fee, so in further
limitation of the strictness of the feodal donation, the word
' ' body, ' ' or some other words of procreation, are necessary
to make it a fee-tail, and ascertain to what heirs in par-
ticular the fee is limited. If, therefore, either the words
of inheritance or words of procreation be omitted, albeit
the others are inserted in the grant, this will not make an
estate-tail. [115] In last wills and testaments, wherein
greater indulgence is allowed, an estate-tail may be created
by a devise to a man and his seed,, or to a man and his heirs
male, or by other irregular modes of expression.
There is still another species of entailed estates, now indeed grown out
of use, yet still capable of subsisting in law, which are estates libero
maritagio, or frankmarriage. These are denned to be where tenements are
given by one man to another, together with a wife, who is the daughter
or cousin of the donor, to hold in frankmarriage. Now by such gift,
though nothing but the word frankmarriage is expressed, the donees shall
have the tenements to them and the heirs of their two bodies begotten,
that is, they are tenants in special tail.
The incidents to a tenancy in tail, under the statute
Westm. 2, are chiefly these: 1. That a tenant in tail may
commit waste on the estate-tail by felling timber, pulling
down houses, or the like, without being impeached or called
to account for the same; 2. That the wife of the tenant in
tail shall have her dower, or thirds, of the estate-tail [116] ;
3. That the husband of a female tenant in tail may be tenant
by the cu-rtesy of the estate-tail; 4. That an estate-tail may
be barred or destroyed by a fine, by a common recovery, or
by lineal warranty descending with assets to the heir.
About two hundred years intervened between the making
of the statute de donis [1285] and the application of com-
mon recoveries to this intent [to evade the statute], in the
twelfth year of Edward IV. [1473], which were then openly
declared by the judges te be a sufficient bar of an estate-tail.
[117]
This expedient having greatly abridged estates-tail with
regard to their duration, others were soon invented to strip
them of other privileges. The next that was attacked was
188 FKEEJIOLD ESTATES OP INHERITANCE. [Boos II.
their freedom from forfeitures for treason [stat. 26 Hen.
VIII. c. 13].
The next attack which they suffered in order of time was
by the statute 32 Hen. VIII. c. 28, whereby certain leases
made by tenants in tail, which do not tend to the prejudice
of the issue, were allowed to be good in law and to bind the
issue in tail. [118] But they received a more violent blow,
in the same session of parliament, by the construction put
upon the statute of fines by the statute 32 Hen. VIII. c. 36,
which declares a fine duly levied by tenant in tail to be a
complete bar to him and his heirs, and all other persons
claiming under such entail.
Lastly, by a statute of the succeeding year [33 Hen. VIII.
. 39, 75] all estates-tail are rendered liable to be charged
for payment of debts due to the king by record or special
contract, as since, by the bankrupt laws, they are also sub-
jected to be sold for the debts contracted by a bankrupt.
And by the construction put on the statute 43 Eliz. c. 4, an
appointment by tenant in tail of the lands entailed to a
charitable use is good without fine or recovery.
Estates-tail, being thus by degrees unfettered, are now
reduced again to almost the same state, even before issue
born, as conditional fees were in at common law after the
condition was performed by the birth of issue. 6 For, first,
the tenant in tail is now enabled to aliene his lands and
tenements by fine, by recovery, or by certain other means,
and thereby to defeat the interest as well of his own issue,
though unborn, as also of the reversioner, except in the
case of the crown; secondly, he is now liable to forfeit them
for high treason; and lastly, he may charge them with rea-
sonable leases, and also with such of his debts as are due
to the crown on specialties, or have been contracted with
his fellow-subjects in a course of extensive commerce.
6. In this country in many states the entail. In some .states they still
estates-tail have been abolished by exist but may be barred by deed. See,
statutes which have either converted generaly, Hopkins, Real Prop., ch. 4,
them with estates in fee-simple, or and especially pages 52, 53 and notes,
life estates with remainder to the See Rev. Stat. 111., ch. 30, sec. 6;
donee's heirs who would take under Cooper v. Cooper, 76 111. 57.
CHAP. VIII.} FREEHOLDS NOT OF INHERITANCE.
CHAPTER VIII.
OF FREEHOLDS NOT OF INHERITANCE.
Of estates for life, some are conventional, or expressly
created by the act of tke parties; others merely legal, or
created by construction and operation of law. We will
consider them both in their order. [120]
I. Estates for life, expressly created by deed or grant
(which alone are properly conventional), are where a lease
is made of lands or tenements to a man to hold for the term
of his own life or for that of any other person, or for more
lives than one, in any of which cases he is styled tenant
for life ; only when he holds the estate by the life of another
he is usually called tenant per outer vie. 1 They are given
or conferred by the same feodal rights and solemnities, the
same investiture or livery of seisin, as fees themselves are,
and they are held by fealty if demanded, and such conven-
tional rents and services as the lord, or lessor, and his
tenant, or lessee, have agreed on.
Estates for life may be created not only by the express
words before mentioned, but .also by a general grant, with-
out denning or limiting any specific estate. [121] As, if
one grants to A B the manor of Dale, this makes him tenant
for life. Also such a grant at large, or a grant for a term
of life generally, shall be construed to be an estate for the
life of the grantee, in case the grantor hath authority to
make such grant. For an estate for a man's own life is
more beneficial and of a higher nature than for any other
life, and the rule of law is that all grants are to be taken
most strongly against the grantor, 2 unless in the case of the
king.
There are some estates for life which may determine
upon future contingencies before the life for which they are
created expires ; as if an estate be granted to a woman dur-
1. For another life. See Broom's Legal Maxims, *529 ; Co.
2. This is an important rule of law. Litt., 36a.
1 90 FREEHOLDS NOT OF INHERITANCE. [BOOK II.
ing her widowhood, or to a man until he be promoted to a
benefice. In these and similar cases, whenever the contin-
gency happens, when the widow marries or when the grantee
obtains a benefice, the respective estates are absolutely de-
termined and gone. Yet while they subsist they are reck-
oned estates for life, because, the time for which they will
endure being uncertain, they may by possibility last for life,
if the contingencies upon which they are to determine do
not sooner happen.
And moreover, in case an estate be granted to a man for his life, gen-
erally it may also determine by his civil death, as if he enters into a
monastery, whereby he is dead in law; for which reason in conveyances
the grant is usually made " for the term of a man's natural life," which
can only determine by his natural death.
The incidents to an estate for life are principally the
following, which are applicable not only to that species of
tenants for life which are expressly created by deed, but
also to those which are created by act and operation of law.
[122]
1. Every tenant for life, unless restrained by covenant
or agreement, may of common right take upon the land
demised to him reasonable estovers or botes. For he hath
a right to the full enjoyment and use of the land and all
its profits during his estate therein. 3 But he is not per-
mitted to cut down timber, or to do other waste upon the
premises, for the destruction of such things as are not the
temporary profits of the tenement is not necessary for the
tenant's complete enjoyment of his estate, but tends to the
permanent and lasting loss of the person entitled to the
inheritance. 4
3. Hopkins, Real Prop., 6-1 and cases to this country, especially those rclat-
cited. ing to cutting down trees and the use
4. Waste is a permanent and ma- of land, and what would be waste in
terial injury to the reversionary in- a thickly settled eastern state might
terest. The English rules as to waste not be in a new and undeveloped re-
arc, owing to the difference in circum- gion. Hopkins, Real Prop., 62-67 and
stances, to a large extent inapplicable cases cited.
CHAP. \ 7 IIL] FREEHOLDS NOT OF INHERITANCE. 191
2. Tenant for life, or his representatives, shall not be
prejudiced by any sudden determination of his estate, be-
cause such a determination is contingent and uncertain.
Therefore if a tenant for his own life sows the lands and
dies before harvest, his executors shall have the emblements
or profits of the crop; for the estate was determined by
the act of God, and it is a maxim in the law that actus Dei
nemini facit injuriam. 5 So it is also if a man be tenant for
the life of another, and cestuy que vie, or he on whose life
the land is held, dies after the corn sown, the tenant per
(inter vie 6 shall have the emblements. [123] The same is
also the rule if a life-estate be determined by the act of
law. 7 Therefore if a lease be made to husband and wif.e
during coverture (which gives them a determinable estate
for life), and the husband sows the land, and afterwards
they are divorced a vinculo matrimonii 8 [decree of nullity],
the husband shall have the emblement in this case, for the
sentence of divorce is the act of law. But if an estate for
life be determined by the tenant's own act (as by for-
feiture for waste committed, or if a tenant during widow-
hood thinks proper to marry), in these and similar cases,
the tenants, having thus determined the estate by their own
acts, shall not be entitled to take the emblements. The doc-
trine of emblements extends not only to corn sown, but to
roots planted, or other annual artificial profit; but it is
otherwise of fruit-trees, grass, and the like, which are not
planted annually at the expense and labor of the tenant,
but are either a permanent or natural profit of the earth. 9
3. A third incident to estates for life relates to the under-
tenants or lessees; for they have the same, nay greater in-
dulgences than the lessors, the original tenants for life.
The same, for the law of estovers and emblements with
regard to the tenant for life is also law with regard to his
under-tenant, who represents him and stands in his place;
5. The act of God works wrong to ch. 8, where the cases are fully col-
no one. lected.
6. For another life. 8. From the bond of matrimony.
7. See Hopkins, Real Prop., 61 and 9. See note, supra.
notes; Ewell on Fixtures (2d Ed.),
192 FREEHOLDS NOT OF INHERITANCE. [BooK II.
and greater, for in those cases where tenant for life shall
not have the emblements, because the estate determines by
his own act, the exception shall not reach his lessee, who
is a third person. [124] As in the case of a woman who
holds durante viduitate; 1 her taking husband is her own
act, and therefore deprives her of the emblements; but if
she leases her estate to an under-tenant, who sows the land,
and she then marries, this her act shall not deprive the
tenant of his emblements, who is a stranger and could not
prevent her. 2 The lessees of tenants for life had also at
the common law another most unreasonable advantage, for
at the death of their lessors, the tenants for life, these
under-tenants might if they pleased quit the premises, and
pay no rent to anybody for the occupation of the land since
the last quarter-day or other day assigned for payment of
rent. To remedy which it is now enacted that the executors
or administrators of tenant for life, on whose death any
lease determined, shall recover of the lessee a ratable pro-
portion of rent from the last day of payment to the death
of such lessor. 3
II. The next estate for life is of the legal kind, as contra-
distinguished from conventional, viz., that of tenant in tail
after possibility of issue extinct. This happens where one
is tenant in special tail, and a person, from whose body the
issue was to spring, dies without issue, or, having left issue,
that issue becomes extinct. In either of these cases the
surviving tenant in special tail becomes tenant in tail after
possibility of issue extinct. This estate must be created
by the act of God, that is, by the death of that person out
of whose body the issue was to spring, for no limitation,
conveyance, or other human act can make it. [125] For,
if land be given to a man and his wife and the heirs of their
two bodies begotten, and they are divorced a vinculo matri-
monii, they shall neither of them have this estate, but be
barely tenants for life, notwithstanding the inheritance once
vested in them. A possibility of issue is always supposed
1. During widowhood. 3. Consult the local statutes.
2. See note, supra.
CHAP. VIII.] FREEHOLDS NOT OF INHERITANCE. 193
to exist in law, unless extinguished by the death of the par-
ties, even though the donees be each of them an hundred
years old.
This estate is of an amphibious nature, partaking partly
of an estate-tail and partly of an estate for life. The tenant
is, in truth, only tenant for life, but with many of the privi-
leges of a tenant in tail, 4 as not to be punishable for waste,
&c. ; or he is tenant in tail with many of the restrictions of
a tenant for life, as to forfeit his estate if he alienes it in
fee-simple. Whereas such alienation by tenant in tail,
though voidable by the issue, is no forfeiture of the estate
to the reversioner, who is not concerned in interest till all
possibility of issue be extinct. [126] But in general the
law looks upon this estate as equivalent to an estate for life
only, and as such will permit this tenant to exchange his
estate with a tenant for life, which exchange can only be
made, as we shall see hereafter, of estates that are equal
in their nature.
III. Tenant by the curtesy of England is where a man
marries a woman seised of an estate of inheritance, that is,
of lands and tenements in fee-simple or fee-tail, and has
by her issue, born alive, which was capable of inheriting
her estate. In this case he shall, on the death of his wife,
hold the lands for his life as tenant by the curtesy of Eng-
land. As soon as any child was born, the father began to
have a permanent interest in the lands, he became one of
the pares curtis, 5 did homage to the lord, and was called
tenant by the curtesy initiate, and this estate being once
vested in him by the birth of the child, was not suffered to
determine by the subsequent death or coming of age of
the infant. [127]
There are four requisites necessary to make a tenancy by
the curtesy: marriage, seisin of the wife, issue, and death
of the wife. 1. The marriage must be canonical and legal.
2. The seisin of the wife must be an actual seisin or posses-
sion of the lands, not a bare right to possess, which is a
seisin in law, but an actual possession, which is a seisin in
deed. And therefore a man shall not be tenant by the cur-
4. See ante, *118, note. 5. Peers of the court.
13
194 FREEHOLDS NOT OF INHERITANCE. [BOOK II.
tesy of a remainder or reversion. But of some incorporeal
hereditaments a man may be tenant by the curtesy, though
there have been no actual seisin of the wife, as in case of
an advowson, where the church has not become void in the
lifetime of the wife, which a man may hold by the curtesy,
because it is impossible ever to have actual seisin of it,
and impotentia excusat legem. If the wife be an idiot, the
husband shall not be tenant by the curtesy of her lands.
3. There must be issue born alive during the life of the
mother, 6 and capable of inheriting the mother's estate.
[128] The time when the issue was born is immaterial,
provided it were during the coverture, for, whether it were
before or after the wife's seisin of the lands, whether it be
living or dead at the time of the seisin or at the time of
the wife's decease, the husband shall be tenant by the cur-
tesy. The husband by the birth of the child becomes (as
was before observed) tenant by the curtesy initiate, and
may do many acts to charge the lands, but his estate is
not consummate till the death of the wife, which is the
fourth and last requisite to make a complete tenant by the
curtesy. 7
IV. Tenant in dower is where the husband of a woman is
seised of an estate of inheritance and dies. In this case
the wife shall have the third part of all the lands and tene-
ments whereof he was seised at any time during the cover-
ture, to hold to herself for the term of her natural life.
[129].
1. Who may be endowed. [130] She must be the actual
wife of the party at the time of his decease. If she be di-
vorced a vinculo matrimonii, 8 she shall not be endowed.
6. It will not be sufficient, it is regarded as a correct statement of
stated, if the mother die in childbirth the common law upon the subject.
and the child is afterwards delivered See, generally, Hopkins, Real Prop.,
by Caesarean section. Hopkins, Real 73-83 and notes, where a large num-
Prop., 74, citing Co. Litt., 296; Mar- ber of cases are collected. Consult
st'llis v. Thalhimer, 2 Paige (N. Y.), local statutes. In Illinois the hus-
42. band has a statutory dower and no
7. In many of the states curtesy curtesy. Rev. Stat. 111., ch. 41, sec. 1.
has been abolished by statute or dower 8. From the bond of marriage. In
substitute therefor; in others it ex- Blackstone's time a decree a vinculo
ists as at common law. The text ia rendered the marriage void from the
CHAP. VIII.] FREEHOLDS NOT OF INHERITANCE. 195
But a divorce a mensa et thoro 9 only doth not destroy the
dower no, not even for adultery itself, by the common law.
Yet now by the statute Westm. 2, 1 if a woman voluntarily
leaves (which the law calls eloping from) her husband, and
lives with an adulterer, she shall lose her dower, unless her
husband be voluntarily reconciled to her. It was formerly
held that the wife of an idiot might be endowed, though the
husband of an idiot could not be tenant by the curtesy;
but as it seems to be at present agreed, upon principles of
sound sense and reason, that an idiot cannot marry, being
incapable of consenting to any contract, this doctrine can-
not now take place. 2 By the ancient law the wife of a per-
son attainted of treason or felony could not be endowed.
An alien also cannot be endowed 3 unless she be queen con-
sort, for no alien is capable of holding land. [131] The
wife must be above nine years old at her husband's death,
otherwise she shall not be endowed.
2. Next, of what may a wife be endowed. She is now by
law entitled to be endowed of all lands and tenements of
which her husband was seised in fee-simple or fee-tail at
any time during the coverture, and of which any issue which
she might have had might by possibility have been heir. 4
Therefore, if a man seised in fee-simple hath a son by his
first wife, and after marries a second wife, she shall be
beginning and was equivalent to our of a divorce is merely a judicial sep-
decree of nullity. Under the general aration and does not avoid the mar-
American law (except in South Caro- riage.
lina), divorces a vinculo are granted 1. Re-enacted or recognized in some
for adultery, desertion and other of the states. Hopkins, Real Prop.,
causes arising after the marriage, and 103 and notes. Consult local statutes,
do not avoid it ab initio but only 2. If the idiocy or insanity avoids
from the time of the decree which the marriage ab initio, of course,
does not necessarily, where she is free dower fails with it; but if the mar-
from fault, bar her dower, as does a riage is merely voidable, the case is
decree of nullity. In some states, otherwise.
however, a decree a vinculo for causes 3. Changed by statute in some
arising after the marriage, bars her states. Hopkins, Real Prop., 103,
dower; in others it does not. See the notes.
local statutes and the cases collected 4. Hopkins, Real Prop., 83-93.
in Hopkins' Real Estate, 104. notes. There is no dower in an estate of
9. From bed and board. This sort joint tenancy. Id., 92.
196 FREEHOLDS NOT OF INHERITANCE. [BOOK II.
endowed of his lands, for her issue might by possibility
have been heir on the death of the son by the former wife.
But if there be a donee in special tail who holds lands to
him and the heirs of his body begotten on Jane his wife,
though Jane may be endowed of these lands, yet if Jane
dies and he marries a second wife, that second wife shall
never be endowed of the lands entailed, for no issue that
she could have could by any possibility inherit them. A
seisin in law of the husband will be as effectual as a seisin
in deed in order to render the wife dowable, for it is not
in the wife's power to bring the husband's title to an actual
seisin, as it is in the husband's power to do with regard to
the wife's lands, which is one reason why he shall not
be tenant by the curtesy but of such lands whereof the wife,
or he himself in her right, was actually seised in deed. The
seisin of the husband, for a transitory instant only, when
the same act which gives him the estate conveys it also out
of him again, as where, by a fine, land is granted to a
man, and he immediately renders it back by the same fine,
- such a seisin will not entitle the wife to dower; for the
land was merely in transitu, 5 and never rested in the hus-
band, the grant and render being one continued act. [132]
But if the land abides in him [beneficially] for the interval
of but a single moment, it seems that the wife shall be en-
dowed thereof. And, in short, a widow may be endowed
of all her husband's lands, tenements, and hereditaments,
corporeal or incorporeal [such as savor of the realty], un-
der the restrictions before mentioned, unless there be some
special reason to the contrary. Copyhold estates are also
not liable to dower, being only estates at the lord's will,
unless by the special custom of the manor, in which case
it is usually called the widow's free bench. But where
dower is allowable, it matters not though the husband aliene
the lands during the coverture, for he alienes them liable
to dower.
3. Next, as to the manner in which a woman is to be
endowed. There are now subsisting four species of dower:
5. In passage. Such is the case of back to the grantor to secure unpaid
a conveyance of land and a mortgage purchase money.
CHAP. VIII.] FREEHOLDS NOT OF INHERITANCE. 197
1. Dower by the common law [and by statute in the United
States], or that which is before described.
i
2. Dower by particular custom, as that the wife should have half the
husband's lands, or in some places the whole, and in some only a quar-
ter. 3. Dower ad ostinm ecclesiae [obsolete], which is where tenant in
fee-simple of full age, openly at the church door, where all marriages
were formerly celebrated, after affiance made, and (Sir Edward Coke
in his translation of Littleton, adds) troth plighted between them, doth
endow the wife with the whole, or such quantity as he shall please, of
his lands, at the same time specifying and ascertaining the same, on
which the wife, after her husband's death, may enter without further
ceremony. [133] 4. Dower ex assensn patris [obsolete], which is only
a species of dower ad ostium ecclesiae, made when the husband's father
is alive, and the son by his consent, expressly given, endows his wife
with parcel of his father's lands.
I proceed to consider the method of endowment, or as-
signing dower, by the common law, which is now the only
usual species. [135] It was provided, first by the charter
of Henry L, and afterwards by Magna Carta, that the
widow shall pay nothing for her marriage, nor shall be dis-
trained to marry afresh if she chooses to live without a
husband, but shall not, however, marry against the consent
of the lord; and further, that nothing shall be taken for
assignment of the widow's dower, but that she shall remain
in her husband's capital mansion-house for forty days after
his death, during which time her dower shall be assigned.
These forty days are called the widow's quarantine, 6 a term
made use of in law to signify the number of forty days,
whether applied to this occasion or any other. The par-
ticular lands to be held in dower must be assigned by the
heir of the husband or his guardian, 1 not only for the sake
of notoriety, but also to entitle the lord of the fee to demand
his services of the heir, in respect of the lands so holden.
For the heir by this entry becomes tenant thereof to the
lord, and the widow is immediate tenant to the heir by a
kind of subinfeudation, or under-tenancy, completed by this
6. Extended and modified by stat- . 7. See, however, Bonner v. Peter-
ute in some of the states. See local son, 44 111. 260. See Hopkins, Real
statutes, also Hopkins, Real Prop., Prop., 99.
94 and notes.
198 FEEEHOLDS NOT OF INHERITANCE. [BOOK IT.
investiture or assignment, which tenure may still be created,
notwithstanding the statute of quia emptores? because the
heir parts not with the fee-simple, but only with an estate
for life. [136] If the heir or his guardian do not assign
her dower within the term of quarantine, or do assign it
unfairly, she has her remedy at law, and the sheriff is ap-
pointed to assign it. Or if the heir (being under age) or
his guardian assign more than she ought to have, it may
be afterwards remedied by a writ of admeasurement of
dower. 9 If the thing of which she is endowed be devisible,
her dower must be set out by metes and bounds ; 1 but if it
be indivisible, she must be endowed specially, as of the third
presentation to a church, the third toll-dish of a mill, the
third part of the profits of an office, the third sheaf of tithe,
and the like. 2
4. How dower may be barred or prevented. [Regulated
by statute in this country.] 3 A widow may be barred of
her dower, not only by elopement, divorce, being an alien,
the treason of her husband, and other disabilities before
mentioned, but also by detaining the title-deeds or evidences
of the estate from the heir until she restores them. 4 And
by the statute of Gloucester, if a dowager alienes the land
assigned her for dower, she forfeits it ipso facto, 5 and the
heir may recover it by action. [Here she may aliene for
her own life.] [137] A woman also may be barred of her
dower by levying a fine or suffering a recovery of the lands
during her coverture. But the most usual method of bar-
ring dowers is by jointures, as regulated by the statute,
27 Hen. VIII. cT 10.
A jointure, which, strictly speaking, signifies a joint
estate limited to both husband and wife, but in common
8. Because purchaser. the proceeds divided. Hopkins, Reai
9. The remedies for the recovery of Prop., 98.
dower vary in the several states ac- 3. See ante, notes.
cording to the local practice. Hop- 4. As title deeds are recorded in
kins. Real Prop., 100. this country, this is not applicable
1. Hopkins, Real Prop., 98. here.
2. When such division is impossible 5. In very fact.
or impracticable, the land is sold and
CHAP. VIII.] FKEEHOLDS NOT OF INHERITANCE. 199
acceptation extends also a sole estate limited to the wife
only, is thus defined by Sir Edward Coke: " A competent
livelihood of freehold for the wife, of lands and tenements
to take effect, in profit or possession presently after the
death of the husband, for the life of the wife at least."
[Regulated by statute here.] But then these four requisites
must be punctually observed: 1. The jointure must take
effect immediately on the death of the husband. [138] 2.
It must be for her own life at least, and not pur aider vie, 9
for any term of years, or other smaller estate. 3. It must
be made to herself, and no other in trust for her. 4. It
must be made, and so in the deed particularly expressed
to be in satisfaction of her whole dower, and not of any
particular part of it. If the jointure be made to her after
'marriage, she has her election after her husband's death,
as in dower ad ostium ecclesiae,' and may either accept it
or refuse it, and betake herself to her dower at common
law, for she was not capable of consenting to it during
coverture. And if, by any fraud or accident, a jointure
made before marriage proves to be on a bad title, and the
jointress is evicted or turned out of possession, she shall
then (by the provisions of the same statute) have her dower
pro tanto 8 at the common law. 9
A widow may enter at once, without any formal process,
on her jointure land, as she also might have done on dower
ad ostium ecclesiae, which a jointure in many points re-
vsembles. And the resemblance was still greater while that
species of dower continued in its primitive state; whereas
no small trouble, and a very tedious method of proceeding,
is necessary to compel a legal assignment of dower. [139]
And, what is more, though dower be forfeited by the trea-
son of the husband, yet lands settled in jointure remain
iinimpeached to the widow.
6. For the life of another. 109. But the most common method
7. At the door of the church. is by joining with her husband in the
8. For so much. execution of a conveyance of the land
9. With us dower may be barred by and acknowledging the same in ac-
jointure in lieu of dower and by a cordance with local statutes. See the
testamentary provision in lieu of local statutes, also Hopkins, Real
dower. See Hopkins, Real Prop., 107, Prop., 105-108.
200 ESTATES LESS THAN FREEHOLD. [BOOK II.
CHAPTEE IX.
OF ESTATES LESS THAN FREEHOLD.
Of estates that are less than freehold there are three
sorts: 1. Estates for years; 2. Estates at will; 3. Estates
by sufferance. 1
I. An estate for years is a contract for the possession of
lands or tenements for some determinate period, and it
takes place where a man letteth them to another for the
term of a certain number of years agreed upon between the
lessor and the lessee, and the lessee enters thereon. 2 If
the lease be but for half a year or a quarter, or any less
time, this lessee is respected as a tenant for years, and is
styled so in some legal proceedings, a year being the short-
est term which the law in this case takes notice of. And
this may not improperly lead us into a short digression
concerning the division and calculation of time by the
English law.
The space of a year is a determinate and well-known
period, consisting commonly of 365 days; for though in
hissextile, or leap-years, it consists properly of 366, yet by
the statute 21 Hen. III. the increasing day in the leap-year,
together with the preceding day, shall be accounted for one
day only. [141]
That of a month is more ambiguous, there being in com-
mon use two ways of calculating months, either as lunar,
consisting of twenty-eight days, the supposed revolution
of the moon, thirteen of which make a year, or as cal-
1. The law of Landlord and Tenant hill on Landlord and Tenant (1909),.
is too voluminous to be summarized 2 vols.; Woodfall's Landlord and Ten-
in a note. For detail beyond the ant (1900), 2 vols. See, also, Ewell
text, see Wood on Landlord and Ten- on Fixtures (2d Ed., 1905), ch. 4;
ant (1882), 2 vols.; Taylor on Land- Washburn on Real Property,
lord and Tenant (1909), 2 vols.; Me- 2. As to the effect of the Statute
Adam on Landlord and Tenant of Frauds in requiring the leaee to be
(1910), 4 vols.; Tiffany on Landlord in writing, see post.
and Tenant (1909), 2 vols.; Under-
CiiAr. IX.] ESTATES LESS THAN FREEHOLD. 201
endar months of unequal lengths, according to the Julian
division in our common almanacs, commencing at the
calends of each month, whereof in a year there are only
twelve. A month in law is a lunar month, or twenty-eight
days, unless otherwise expressed. Therefore a lease for
4i twelve months " is only for forty-eight weeks; but if it
be for " a twelvemonth " in the singular number, it is gocd
for the whole year. 3
In the space of a day all the twenty-four hours are usually
reckoned, the law generally rejecting all fractions of a day,
in order to avoid disputes. Therefore, if I am bound to
pay money on any certain day, I discharge the obligation
if I pay it before twelve o'clock at night, after which the
following day commences. 4
Every estate which must expire at a period certain and
prefixed, by whatever words created, is an estate for years.
[143] And therefore this estate is frequently called a term,
terminus, because its duration or continuance is bounded,
limited, and determined. But id cerium est, quod cerium
reddi potest; 5 therefore if a man make a lease to another
for so many years as J. S. shall name, it is a good lease
for years. For though it is at present uncertain, yet when
J. S. hath named the years, it is then reduced to a certainty.
If no day of commencement is named in the creation of
this estate, it begins from the making, or delivery, of the
lease. A lease for so many years as J. S. shall live is void
from" the beginning, 5 * for it is neither certain nor can ever
be reduced to a certainty during the continuance of the
lease. And the same doctrine holds if a person make a
lease of his glebe for so many years as he shall continue
parson of Dale, for this is still more uncertain. But a lease
3. In the United States a month Stat. 111., ch. 74, sec. 10. See, gener-
generally means a calendar month, ally, 1 Bouvier Law Diet. Day.
See Rev. Stat. 111., ch. 74, sec. 10; 2 5. That is certain, which can be
Bouvier's Law Diet. Month. made certain.
4. In computations of interest or 5a. That is as a lease for years,
discount for less than a month, the It may, if accompanied by livery of
word day by statute in Illinois means seisin, c-eate an estate for life.
the thirtieth part of a month. Rev.
202 ESTATES LESS THAN FREEHOLD. [ BOOK II.
for twenty or more years, if J. S. shall so long live, or if
he should so long continue parson, is good. An estate for
life, even if it be pur auter vie, 6 is a freehold, but an estate
for a thousand years is only a chattel, and reckoned part
of the personal estate. 7 Hence it follows that a lease for
years may be made to commence in future, 1 * though a lease
for life cannot. For no estate of freehold [by a common-
law conveyance] can commence in futuro, because it cannot
be created at common law without livery of seisin or cor-
poral possession of the land; and corporal possession can-
not be given of an estate now, which is not to commence
now, but hereafter. [144] And because no livery of seisin
is necessary to a lease for years, such lessee is not said
to be seised, or to have true legal seisin of the lands. Nor
indeed does the bare lease vest any estate in the lessee, but
only gives him a right of entry on the tenement, which right
is called his interest in the term, or interesse termini; but
when he has actually so entered, and thereby accepted the
grant, the estate is then, and not before, vested in him, and
he is possessed, not properly of the land, but of the term
of years, the possession or seisin of the land remaining still
in him who hath the freehold. Thus the word term does
not merely signify the time specified in the lease, but the
estate also and interest that passes by that lease, and there-
fore the term may expire during the continuance of the
time, as by surrender, forfeiture, and the like. For which
reason if I grant a lease to A for the term of three years,
and after the expiration of the said term to B for six years,,
and A surrenders or forfeits his lease at the end of one
year, B's interest shall immediately take effect; but if the
remainder had been to B from and after the expiration of
the said three years, or from and after the expiration of
the said time, in this case B's interest will not commence
till the time is fully elapsed, whatever may become of A's
term.
6. For the life of another. ment at stated intervals are not un-
7. Leases for ninety-nine years on common in our large cities,
a stipulated ground rent with provi- 7a, In the future.
eions for revaluation and appraise-
CHAP. IX,] ESTATES LESS THAN FREEHOLD. 203
Tenant for term of years hath incident to and inseparable
from his estate, unless by special agreement, the same
estovers which we formerly observed that tenant for life
was entitled to; that is to say, house-bote, fire-bote, plough-
bote, and hay-bote, terms which have been already ex-
plained.
With regard to emblements, or the profits of lands sowed
by tenant for years, there is this difference between him and
tenant for life, that where the term of tenant for years
depends upon a certainty, as if he holds from midsummer
for ten years, and in the last year he sows a crop of corn
and it is not ripe and cut before midsummer, the end of his
term, the landlord shall have it; for the tenant knew the
expiration of his term, and therefore it was his own folly
to sow what he could never reap the profits of. [145] But
where the lease for years depends upon an uncertainty, as
upon the death of a lessor, being himself only tenant for
life, or being a husband seised in right of his wife, or if
the term of years be determinable upon a life or lives,
in all these cases the estate for years not being certainly
to expire at a time foreknown, but merely by the act of
God, the tenant, or his executors, shall have the emblements
in the same manner that a tenant for life or his executors
shall be entitled thereto. Not so if it determine by the act
of the party himself, as if tenant for years does anything
that amounts to a forfeiture, in which case the emblements
shall go to the lessor and not to the lessee, who hath deter-
mined his estate by his own default. 8
II. The second species of estates not freehold are estates
at will. An estate at will is where lands and tenements are
8. See Hopkins on Real Prop., 61. shall have the right to remove the
" It may be stated as a general rule emblements ; or if the estate has been
that every person having an uncer- determined by reason of his death,
tain interest or estate in land, and they shall pass to his personal repre-
whose estate is determined by the act sentatives." Ewell on Fixtures (2d
of God, or by the happening of some Ed.), *256 and notes. A tenant at
uncertain event other than his own sufferance is not entitled to emble-
act, before the severance of the crops ments. filler v. Cheney, 88 Ind. 470.
plainted or sowed by him thereon,
204 ESTATES LESS THAN FREEHOLD. [Boox IT.
let by one man to another, to have and to hold at the will
of the lessor, and the tenant by force of this lease obtains
possession. Such tenant hath no certain indefeasible es-
tate, nothing that can be assigned by him to any other,
because the lessor may determine his will and put him out
whenever he pleases. But every estate at will is at the
will of both parties, landlord and tenant, so that either of
them may determine his will and quit his connection with
the other at his own pleasure. Yet this must be understood
with some restriction. For if the tenant at will sows his
land, and the landlord, before the corn is ripe, or before it
is reaped, puts him out [or if the tenant dies], yet the
tenant [or his personal representative in case of his death]
shall have the emblements, and free ingress, egress, and
regress to cut and carry away the profits. 9 [146] But it
is otherwise, and upon reason equally good, where the ten-
ant himself determines the will, for in this case the land-
lord shall have the profits of the land.
What act does, or does not, amount to a determination
of the will on either side has formerly been matter of great
debate in our courts. But it is now, I think, settled that
(besides the express determination of the lessor's will, by
declaring that the lessee shall hold no longer, which must
either be made upon the land, or notice must be given to
the lessee) the exertion of any act of ownership by the
lessor, as entering upon the premises and cutting timber,
taking a distress for rent and impounding it thereon, or
making a feoffrnent or lease for years of the land to com-
mence immediately, any act of desertion by the lessee, as
assigning his estate to another, or committing waste, which
is an act inconsistent with such a tenure, or, which is instar
omnium, 1 the death or outlawry of either lessor or lessee,
puts an end to or determines the estate at will.
The lessee, after the determination of the lessor's will,
shall have reasonable ingress and egress to fetch away his
goods and utensils. [147] And if rent be payable quarterly
9. See note, supra; Ewell'ou Fix- 1. Equal to all.
tuns, *260 and notes.
CHAP. IX.] ESTATES LESS THAN FREEHOLD. 205
or half-yearly, and the lessee determines the will, the rent
shall be paid to the end of the current quarter or half year.
Courts of law have of late years leaned as much as possible
against construing demises, where no certain term is men-
tioned, to be tenancies at will, but have rather held them
to be tenancies from year to year 2 so long as both parties
please, especially where an annual rent is reserved, in which
case they will not suffer either party to determine the ten-
ancy, even at the end of the year, without reasonable notice
to the other, which is generally understood to be six months.
There is one species of estates at will that deserves a more particular
regard than any other, and that is an estate held by copy of court-roll,
or, as we usually call it, a copyhold estate^ This, as was before ob-
served, was in its original and foundation nothing better than a mere
estate at will. But the kindness and indulgence of successive lords of
manors having permitted these estates to be enjoyed by the tenants and
their heirs, according to particular customs established in their respec-
tive districts, therefore, though they still are held at the will of the lord,
and so are in general expressed in the court-rolls to be, yet that will
is qualified, restrained, and limited to be exerted according to the cus-
tom of the manor. This custom, being suffered to grow up by the lord,
is looked upon as the evidence and interpreter of his will. His will
is no longer arbitrary and precarious, but fixed and ascertained by the
custom to be the same, and no other, that has time out of mind been
exercised and declared by his ancestors. A copyhold tenant is there-
fore now full as properly a tenant by the custom as a tenant at will, the
custom having arisen from a series of uniform wills. [148]
Almost every copyhold tenant being therefore thus tenant at the will
of the lord, according to the custom of the manor, such tenant may have,
so far as the custom warrants, any other of the estates or quantities
of interest which we have hitherto considered or may hereafter consider,
and hold them united with this customary estate at will. A copyholder
may in many manors be tenant in fee-simple, in fee-tail, for life, by the
curtesy, in dower, for years, at sufferance, or on condition; subject,
however, to be deprived of these estates upon the concurrence of those
circumstances which the will of the lord, promulgated by immemorial
custom, has declared to be a forfeiture, or absolute determination of
those interests: as in some manors the want of issue male, in others the
cutting down timber, the non-payment of a fine, and the like. Yet none
2. See Rice's Modern "Law of Real 1 Greenleaf's Cruise on Real Prop.,
Property (1897), 349-351 and notes; *245.
3. Xot applicable to this country.
20C ESTATES LESS THAN FREEHOLD. [BOOK IT.
of these Interests amount to a freehold; for the freehold of the whole
manor abides always in the lord only, who hath granted out the use and
occupation, but not the corporeal seisin or true legal possession, of cer-
tain parcels thereof to these his customary tenants at will.
III. An estate at sufferance is where one comes into pos-
session of land by lawful title, but keeps it afterwards with-
out any title at all. 4 [150] As if a man takes a lease for a
year, and after a year is expired continues to hold the prem-
ises without any fresh leave from the owner of the estate.
Or if a man maketh a lease at will, and dies, the estate at
will is thereby determined; but if the tenant continueth pos-
session, he is tenant at sufferance. But no man can be
tenant at sufferance against the king, to whom no laches,
or neglect, in not entering and ousting the tenant is ever
imputed by law, but his tenant, so holding over, is con-
sidered as an absolute intruder. But in the case of a sub-
ject, this estate may be destroyed whenever the true owner
shall make an actual entry on the lands and oust the tenant.
For before entry he cannot maintain an action of trespass
against the tenant by sufferance, as he might against a
stranger; and the reason is because the tenant, being once
in by a lawful title, the law (which presumes no wrong in
any man) will suppose him to continue upon a title equally
lawful, unless the owner of the land by some public and
avowed act, such as en.try is, will declare his continuance to
be tortious, or, in common language, wrongful.
Landlords are obliged in these cases to make formal en-
tries upon their lands, and recover possession by the legal
process of ejectment, and at the utmost, by the common law,
the tenant was bound to account for the profits of the land
so by him detained. 5 [151]
4. Rice's Real Prop., 351; 1 Green- 5. See Rgv. Stat. 111., ch. 80 and
leaf's Cruise on Real Prop. (1856), other local statutes,
ch. 2. This is a valuable treatise on
the common law of real property.
CHAP. X.] OF ESTATES UPON CONDITION. 207
CHAPTER X.
OF ESTATES UPON CONDITION.
An estate upon condition is such whose existence depends
upon the happening or not happening of some uncertain
event, whereby the estate may be either originally created
or enlarged or finally defeated. [152] These conditional
estates are indeed more properly qualifications of other
estates than a distinct species of themselves, seeing that
any quantity of interest, a fee, a freehold, or a term of
years, may depend upon these provisional restrictions.
Estates, upon condition thus understood, are of two sorts:
1. Estates upon condition implied; 2. Estates upon condi-
tion expressed, under which last may be included ; 3. Estates
held in vadio, gage, or pledge; 4. Estates by statute mer-
chant, or statute staple; 5. Estates held by elegit.
1. Estates upon condition implied in law are where a
grant of an estate has a condition annexed to it inseparably
from its essence and constitution, although no condition be
expressed in words. As if a grant be made to a man of an
office, generally without adding other words, the law tacitly
annexes hereto a secret condition, that the grantee shall
duly execute his office, on breach of which condition it is
lawful for the grantor or his heirs to oust him and grant it
to another person. [153] For an office, either public or
private, may be forfeited by mis-user or non-user, both of
which are breaches of this implied condition. Franchises
also, being regal privileges in the hands of a subject, are
held to be granted on the same condition of making a proper
use of them, and therefore they may be lost and forfeited,
like offices, either by abuse or by neglect. 6
Upon the same principle proceed all the forfeitures which
are given by law of life estates and others for any acts done
6. Neither offices nor franchises ex- ever, a forfeiture may be enforced by
ist in the United States in the sense an information in the nature of a
in which the terms are here used. In quo icarranto or other corresponding
the case of a corporate franchise, how- proceeding.
208 OF ESTATES UPON CONDITION. [BOOK II.
by the tenant himself that are incompatible with the estate
which he holds. As, if tenants for life or years enfeoff a
stranger in fee-simple, this is by the common law a for-
feiture of their several estates, being a breach of the con-
dition which the law annexes thereto, viz., that they shall
not attempt to create a greater estate than they themselves
are enitled to. 7
II. An estate on condition expressed in the grant itself
is where an estate is granted, either in fee-simple or other-
wise, with an express qualification annexed, whereby the
estate granted shall either commence, be enlarged, or be
defeated, upon performance or breach of such qualification
or condition. 8 [154] These conditions are therefore either
precedent or subsequent. Precedent are such as must hap-
pen or be performed before the estate can vest or be en-
larged ; subsequent are such, by the failure or non-perform-
ance of which an estate already vested may be defeated. 9
A distinction is however made between a condition in
deed and a limitation, which Littleton denominates also a
condition in law. 1 [155] For when an estate is so expressly
confined and limited by the words of its creation that it can-
not endure for any longer time than till the contingency
happens upon which the estate is to fail, this is denominated
a limitation, as when land is granted to a man so long as he
is parson of Dale, or while he continues unmarried, or until
out of the rents and profits he shall have made 500/., and
the like. In such case the estate determines as soon as the
contingency happens (when he ceases to be parson, marries
a wife, or has received the 500Z.), and the next subsequent
estate, which depends upon such determination, becomes
7. As a general rule in this country 9. Hopkins, Real Prop., 170.
a conveyance passes no more than the 1. Mr. Hopkins defines an estate on
grantor can lawfully convey and hence limitation as " one which is created
no forfeiture accrues in the case stated to continue until the happening of a
In the text. As to restraints on alien- contingency upon which it comes to
ation imposed in the deed creating the an end without entry." " Conditions
estate, see Hopkins, Real Prop., 394- cut short an existing estate. Limi-
397. tations do not, but mark its natural
8. Hopkins, Real Prop., 169. end." Hopkins, Real Prop., 177, 178.
CHAP. X.] OF ESTATES UPON CONDITION. 209
immediately vested without any act to be done by him who
is next in expectancy. But when an estate is, strictly speak-
ing, upon condition in deed (as if granted expressly upon-
condition, to be void upon the payment of 40Z. by the
grantor, or so that the grantee continues unmarried, or pro-
vided he goes to York, &c.), the law permits it to endure
beyond the time when such contingency happens, unless the
grantor or his heirs or assigns take advantage of the breach
of the condition, and make either an entry or a claim in
order to avoid the estate. 2 Yet, though strict words of con-
dition be used in the creation of the estate, if on breach of
the condition the estate be limited over to a third person,
and does not immediately revert to the grantor or his rep-
resentatives (as if an estate be granted by A to B, on con-
dition that within two years B intermarry with C, and on
failure thereof then to D and his heirs), this the law con-
strues to be a limitation, and not a condition. [156]
In all these instances of limitations or conditions subse-
quent, it is to be observed that so long as the condition,
either express or implied, either in deed or in law, remains
unbroken, the grantee may have an estate of freehold, pro-
vided the estate upon which such condition is annexed be
in itself of a freehold nature : as if the original grant express
either an estate of inheritance, or for life; or no estate at
all, which is constructively an estate for life. For, the
breach of these conditions being contingent and uncertain,
this uncertainty preserves the freehold, because the estate
is capable to last for ever, or at least for the life of the
tenant, supposing the condition to remain unbroken. But
where the estate is at the utmost a chattel interest, which
must determine at a time certain, and may determine sooner
(as a grant for ninety-nine years, provided A, B, and C, or
the survivor of them, shall so long live), this still continues
a mere chattel, and is not, by such its uncertainty, ranked
among estates of freehold.
2. An entry to enforce a forfeiture u leasehold estate where the covenants
for breach of condition can be made run with the land. Hopkins, Real
only by the grantor or his heirs, or Prop., 176.
by the assignee of a reversion after
14
210 OF ESTATES UPON CONDITION. [BOOK IL
These express conditions, if they be impossible at the
time of their creation, or afterwards become impossible by
the act of God or the act of the feoffor himself, or if they
be contrary to law or repugnant to the nature of the estate,
are void. 3 In any of which cases, if they be conditions sub-
sequent, that is, to be performed after the estate is vested,
the estate shall become absolute in the tenant. [157] For
. he hath by the grant the estate vested in him, which shall
not be defeated afterwards by a condition either impossible,
illegal, or repugnant. But if the condition be precedent, or
to be performed before the estate vests as a grant to a man,
that if he kills another or goes to Rome in a day he shall
have an estate in fee, here, the void condition being pre-
cedent, the estate which depends thereon is also void, and
the grantee shall take nothing by the grant, for he hath
no estate until the condition be performed.
There are some estates defeasible upon condition subse-
quent, that require a more peculiar notice; such are:
III. Estates held in vadio, in gage or pledge, which are
of two kinds, vivium vadium, or living pledge, and mortuum
vadium, dead pledge, or mortgage.
Yivum radium, or living pledge, is when a man borrows a sum (sup-
pose 200?.) of another, and grants him an estate, as of 20?. per annum,
to hold till the rents and profits shall repay the sum so borrowed. This
is an estate conditioned to be void as soon as such sum is raised. And
in this case the land or pledge is said to be living, it subsists and sur-
vives the debt, and immediately on the discharge of that, results back
to the borrower.
Mortuum vadium, a dead pledge or mortgage (which is
much more common than the other), is where a man bor-
rows of another a specific sum (e. g. 200L) and grants him
an estate in fee, on condition that if he, the mortgagor, shall
repay the mortgagee the said sum of 200L on a certain day
mentioned in the deed, that then the mortgagor may re-
3. Hopkins, Real Prop., 172, 173.
See, generally, Lind. Int. to Jur. App.
tot.
CHAP. X.] OF ESTATES UPON CONDITION. 211
enter on the estate so granted in pledge; or, as is now the
more usual way, that then the mortgagee shall re-convey
the estate, to the mortgagor. In this case the land which
is so put in pledge is by law, in case of non-payment at the
time limited, forever dead and gone from the mortgagor,
and the mortgagee's estate in the lands is then no longer
conditional, but absolute. [158] But so long as it continues
conditional, that is between the time of lending the money
and the time allotted for payment, the mortgagee is called
tenant in mortgage.
As soon as the estate is created, the mortgagee may im-
mediately enter on the lands, but is liable to be dispossessed
upon performance of the condition by payment of the mort-
gage-money at the day limited. And therefore the usua.1
way is to agree that the mortgagor shall hold the land till
the day assigned for payment, when, in case of failure
whereby the estate becomes absolute, the mortgagee may
enter upon it and take possession, without any possibility
at law of being afterwards evicted by the mortgagor, to
whom the land is now forever dead. But here again the
courts of equity interpose, and though a mortgage be thus
forfeited, and the estate absolutely vested in the mortgagee
at the common law, yet they will consider the real value of
the tenements compared with the sum borrowed. [159]
And if the estate be of greater value than the sum lent
thereon, they will allow the mortgagor at any reasonable
time to recall or redeem his estate, paying to the mortgagee
his principal, interest, and expenses. This reasonable ad-
vantage allowed to mortgagors is called the equity of re-
demption, and this enables a mortgagor to call on the mort-
gagee who has possession of his estate to deliver it back
and account for the rents and profits received on payment
of his whole debt and interest, thereby turning the mortuum
into a kind of vivium vadium. But, on the other hand, the
mortgagee may either compel the sale of the estate, in order
to get the whole of his money immediately, or else call upon
the mortgagor to redeem his estate presently, or in default
212
OF ESTATES UPON CONDITION.
[BooK II.
thereof to be forever foreclosed from redeeming the same,
that is, to lose his equity of redemption without possibility
of recall. 4
IV. A fourth species of estates, defeasible on condition subsequent,
are those held by statute merchant and statute staple, which are very
nearly related to the virum radium before mentioned, or estate held till
the profits thereof ^shall discharge a debt liquidated or ascertained. [Not
in use in the United Stales.] For both the statute merchant and statue
staple are securities for money: the one entered into before the chief
magistrate of some trading town, pursuant to the statute 13 Edw. I.
de mcrcatoribusp and thence called a statute merchant; the other pur-
suant to the statute 27 Edw. III. c. 9, before the mayor of the staple,
that is to say, the grand mart for the principal commodities or manu-
factures of the kingdom, formerly held by act of parliament in certain
trading towns, from whence this security is called a statute staple.
They are both, I say, securities for debts acknowledged to be due, and
4. The ion-going is a brief and ac-
curate statement of the law as it ex-
isted in the author's time.
A real estate mortgage is a convey-
ance of land as security for the per-
formance of a promise, usually,
though not necessarily, the payment
of money; .and is usually in the form
of an estate on condition subsequent
expressed in the deed, though in
equity a deed absolute on its face will
as between the parties thereto be held
to be a mortgage, if such was the
agreement. Hopkins, Real Prop., 180,
187.
Two views are held in the different
states as to the nature of a mortgage:
(1) The common law theory that a
mortgage is an estate in land and
that the mortgagee is the owner of
the land: (2) The equitable theory
that a mortgage is a mere security
and that the mortgagee has only a
lien on the land. The mortgagor's
equity of redemption is recognized in
all the states. Hopkins, Real Prop.,
182-184.
The mortgagee is entitled to pos-
session unless otherwise provided by
statute, as in many states, or by
agreement, which may be express or
inipled. Hopkins, Real Prop., 196.
The methods of foreclosure vary in
the different states, as by entry, writ
of entry, or ejectment to recover the
possession of the land, or by proceed-
ings in equity to bar the equity of
redemption. In some of the sta'cs a
strict foreclosure or bar of the equity
of redemption is decreed; but in most
of the states a sale of the land is
decreed and the surplus, if any, after
payment of the debt, interest and
costs, is returned to the mortgagor.
In some states besides a judicial fore-
closure there may also be a sale by
virtue of a power of sale, if such there
be, in the mortgage. See Hopkins,
Real Prop., 242-250, and the local
statutes. See, generally, Jones on
Mortgages (1904), 2 vols.; Wiltsie
on Mortgage Foreclosure (1913), 2
vols.
5. Concerning merchants.
CHAP. X.] OF ESTATES UPON CONDITION. 213
originally permitted only among traders for the benefit of commerce,
whereby not only the body of the debtor may be imprisoned and his
goods seized in satisfaction of the debt, but also his lands may be de-
livered to the creditor till out of the rents and profits of them the debt
may be satisfied; and during such time as the creditor so holds the
lands he is tenant by statute merchant or statute staple. There is also
a similar security, the recognizance in the nature of a statute staple,
acknowledged before either of the chief justices or (out of term) before
their substitutes, the Mayor of the Staple at Westminster and the Re-
corder of London, whereby the benefit of this mercantile transaction is
extended to all the king's subjects in general, by virtue of the statute
23 Hen. VIII. c. 6, amended by 8 Geo. I. c. 25, which directs such recog-
nizances to be enrolled and certified into chancery. But these by the
statute of frauds, 29 Car. II. c. 3, are only binding upon the lands in the
hands of bona fide purchasers from the day of their enrolment, which i3
ordered to be marked on the record.
V. Another similar conditional estate, created by operation of law for
security and satisfaction of debts, is called an estate by elegit. [161]
What an elegit is, and why so called, will be explained in the third part
of these Commentaries. At present I need only mention that it is the
name of a writ founded on the statute of Westm. 2, by which, after a
plaintiff has obtained judgment for his debt at law, the sheriff gives him
possession of one-half of the defendant's lands and tenements, to be oc-
cupied and enjoyed until his debt and damages are fully paid, and dur-
ing the time he so holds them he is called tenant by elegit."
6. In good faith. that it may be still in use in some
7. A writ of execution. See 1 Bon- of the states, but we know of none,
vier Law Diet, elegit. It is possible
214 OF ESTATES IN POSSESSION. [BOOK II.
CHAPTEE XL
OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION.
Estates with respect to the time of their enjoyment may
either be in possession or in expectancy; and of expectancies
there are two sorts: one created by the act of the parties,
called a remainder; the other by act of law, and called a
reversion. [163]
I. Of estates in possession (which are sometimes called
estates executed, whereby a present interest passes to and
resides in the tenant not depending on any subsequent cir-
cumstance or contingency, as in the case of estate execu-
tory), there is little or nothing peculiar to be observed. All
the estates we have hitherto spoken of are of this kind.
II. An estate in remainder 1 may be defined to be an estate
limited to take effect and be enjoyed after another estate
is determined. As if a man seised in fee-simple granteth
lands to A for twenty years, and, after the determination
of the said term, then to B and his heirs forever. Here A
is tenant for years, remainder to B in fee. [164] In the
first place, an estate for years is created or carved out of
the fee and given to A, and the residue or remainder of it
is given to B. Both these interests are in fact only one
estate, the present term of years and the remainder after-
wards, when added together, being equal only to one estate
in fee. And hence also it is easy to collect, that no re-
mainder can be limited after the grant of an estate in fee-
simple, because a fee-simple is the highest and largest estate
that a subject is capable of enjoying, and he that is
tenant in fee hath in him the whole of the estate. A re-
mainder, therefore, which is only a portion, or residuary
part, of the estate, cannot be reserved after the whole is
disposed of.
1. And, first, there must necessarily be some particular
1. For a general consideration of 289 and cases cited. Consult also the
the American law of vested remain- local statutes modifying the common
ders, see Hopkins, Real Trop., 281- law rules so well stated in the text.
CHAF. XI.] OF ESTATES IN REMAINDER. 215
estate precedent to the estate in remainder. 2 [165] As an
estate for years to A, remainder to B for life ; or an estate
for life to A, remainder to B in tail. This precedent estate
is called the particular estate, as being only a small part
or particula of the inheritance, the residue or remainder of
which is granted over to another. The necessity of creating
this preceding particular estate, in order to make a good
remainder, arises from this plain reason: that remainder
is a relative expression, and implies that some part of the
thing is previously disposed of; for where the whole is con-
veyed at once, there cannot possibly exist a remainder, but
the interest granted, whatever it be, will be an estate in
possession.
An estate created to commence at a distant period of time,
without any intervening estate, is therefore properly no
remainder; it is the whole of the gift, and not a residuary
part. And such future estates can only be made of chattel
interests, which were considered in the light of mere con-
tracts by the ancient law, to be executed either now or here-
after as the contracting parties should agree. But an es-
tate .of freehold must be created to commence immediately;
for it is an ancient rule of the common law that an estate
of freehold cannot be created [i. e., by a common-law con-
veyance] to commence in future, 3 but it ought to take effect
presently either in possession or remainder, because at
common law no freehold in lands could pass without livery
of seisin, which must operate either immediately or not at
all. [166] So that when it is intended to grant an estate
of freehold, whereof the enjoyment shall be deferred till a
future time, it is necessary to create a previous particular
state, which may subsist till that period of time is com-
pleted, and for the grantor to deliver immediate possession
of the land to the tenant of this particular estate, which is
construed to be giving possession to him in remainder, since
his estate and that of the- particular tenant are one and the
same estate in law; as, where one leases to A for three
years, with remainder to B in fee, and makes livery of
seisin to A.
2. Hopkins, Real Prop., 284. 3. In the future.
216 OF ESTATES ix REMAINDER. [BOOK II.
As no remainder can be created without such a precedent
particular estate, therefore the particular estate is said to
support the remainder. But a lease at will is not held to
be such a particular estate as will support a remainder
over. Every remainder must be part of one and the same
estate, out of which the preceding particular estate is taken.
[167] And hence it is generally true, that if the particular
estate is void in its creation, or by any means is defeated
afterwards, the remainder supported thereby shall be de-
feated also; as, where the particular estate is an estate for
the life of the person not in esse, or an estate for life upon
condition, on breach of which condition the grantor enters
and avoids the estate. In either of these cases the re-
mainder over is void.
2. The remainder must commence or pass out of the
grantor at the time of the creation of the particular estate ;
as, where there is an estate to A for life, with remainder
to B in fee. Here B's remainder in fee passes from the
grantor at the same time that seisin is delivered to A of
his life estate in possession. And it is this which induces
the necessity at common law of livery of seisin being made
on the particular estate whenever a freehold remainder is
created. For if it be limited even on an. estate for years
it is necessary that the lessee for years should have livery
of seisin, in order to convey the freehold from and out of
the grantor, otherwise the remainder is void. Not that the
livery is necessary to strengthen the estate for years, but
as livery of the land is requisite to convey the freehold, and
yet cannot be given to him in remainder without infringing
the possession of the lessee for years, therefore the law
allows such livery made to the tenant of the particular estate
to relate and inure to him in remainder, as both are but one
estate in law.
3. The remainder must vest in the grantee during the
continuance of the particular estate, or eo instanti 4 that it
determines. [168] Thus, if an estate be limited to A for
life, remainder to the eldest son of B in tail, and A dies
before B hath any son, here the remainder will be void, for
4. At that instant.
CHAP. XL] OJF ESTATES IN REMAINDER. 217
it did not vest in any one during the continuance nor at
the determination of the particular estate; and even sup-
posing that B should afterwards have a son, he shall not
take by this remainder, for as it did not vest at or before
the end of the particular estate, it never can vest at all, but
is gone forever. And this depends upon the principle be-
fore laid down, that the precedent particular estate and the
remainder are one estate in law; they must therefore sub-
sist and be in esse at one and the same instant of time,
either during the continuance of the first estate, or at the
very instant when that determines, so that no other estate
can possibly come between them.
It is upon these rules, but principally the last, that the
doctrine of contingent remainders depends. For remainders
are either vested or contingent. Vested remainders (or re-
mainders executed, whereby a present interest passes to the
party, though to be enjoyed in futuro) 5 are where the estate
is invariably fixed to remain to a determinate person, after
the particular estate is spent. As if A be tenant for twenty
years, remainder to B in fee : here B's is a vested remainder,
which nothing can defeat or set aside. 6 [169]
Contingent or executory remainders (whereby no present
interest passes) are where the estate in remainder is limited
to take effect either to a dubious and uncertain person, or
upon a dubious and uncertain event; so that the particular
estate may chance to be determined r and the remainder
never take effect. 7
First, they may be limited to a dubious and uncertain
person. As if A be tenant for life, with remainder to B's
eldest son (then unborn) in tail, this is a contingent re-
mainder, for it is uncertain whether B will have a son or no ;
but the instant that a son is born the remainder is no longer
contingent, but vested. Though if A had died before the
contingency happened, that is, before B 's son was born, the
remainder would have been absolutely gone, for the par-
ticular estate was determined before the remainder could
vest.
5. In the future. 7. Hopkins, Real Prop., 289.
6. See Hopkins, Real Prop,, 288,
289.
218 OF ESTATES IN REMAINDER. [Booic II.
Nay, by the strict rule of law, if A were tenant for life, remainder to
his eldest son in tail, and A died without issue born, but leaving his wife
enseint, or big with child, and after his death a posthumous son was born,
this son could not take the land by virtue of this remainder, for the
particular estate determined before there was any person in essr,s in
whom the remainder could vest. But to remedy this hardship, it is en-
acted by statute 10 & 11 W. III. c. 16, that posthumous children shall
be capable of taking in remainder in the same manner as if they had
been born in their father's lifetime, that is, the remainder is allowed to
vest in them while yet in their mother's womb. 9
This species of contingent remainders to a person not in
being must, however, be limited to some one that may, by
common possibility or potentia propinqua, 1 be in esse at or
before the particular estate determines. As if an estate
be made to A .for life, remainder to the heirs of B : now if
A dies before B, the remainder is at an end; for during B's
life he has no heir, nemo est haeres viventis; but if B dies
first, the remainder then immediately vests in nis heir, who
will be entitled to the land on the death of A. [170] This
is a good contingent remainder, for the possibility of B's
dying before A is potentia propinqua, and therefore allowed
in law. But a remainder to the right heirs of B (if there
be no such person as B in esse), is void. For here there
must two contingencies happen : first, that such a person as
B shall be born, and secondly, that he shall also die during
the continuance of the particular estate; which make it
potentia remotissima, 2 a most improbable possibility. A
remainder to a man's eldest son, who hath none (we have
seen) is good, for by common possibility he may have one;
but if it be limited in particular to his son John or Richard,
it is bad, if he have no son of that name, for it is too remote
a possibility that he should not only have a son, but a son
of a particular name. A limitation of a remainder to a
bastard before it is born is not good, for though the law
allows the possibility of having bastards, it presumes it to
be a very remote and improbable contingency. Thus may
8. In being. 1. A near possibility.
9. Hopkins, Real Prop., 290. So by 2. A very remote possibility,
statute in some states. Id.; 1 Stim.
Am. St. Law, 1413.
CHAP. XL] OF ESTATES IN REMAINDER. 219
a remainder be contingent on account of the uncertainty of
the person who is to take it.
A remainder may also be contingent, where the person
to whom it is limited is fixed and certain, but the event
upon which it is to take effect is vague and uncertain. As,
where land is given to A for life, and in case B survives
him, then with remainder to B in fee. Here B is a certain
person, but the remainder to him is a contingent remainder,
depending upon a dubious event, the uncertainty of his
surviving A. During the joint lives of A and B it is con-
tingent, and if B dies first, it never can vest in his heirs,
but is forever gone; but if A dies first the remainder to B
becomes vested.
Contingent remainders of either kind, if they amount to
a freehold, cannot be limited on an estate for years, or any
other particular estate less than a freehold. 3 [171] Thus
if land be granted to A for ten years, with remainder in fee
to the right heirs of B, this remainder is void, but if granted
to A for life, with a like remainder, it is good. For unless
the freehold passes out of the grantor at the time when the
remainder is created, such freehold remainder is void; it
cannot pass out of him without vesting somewhere ; and in
the case of a contingent remainder it must vest in the par-
ticular tenant, else it can vest nowhere. Unless, therefore,
the estate of such particular tenant be of a freehold nature,
the freehold cannot vest in him, and consequently the re-
mainder is void.
Contingent remainders may be defeated by destroying
or determining the particular estate upon which they de-
pend, before the contingency happens whereby they become
vested. 4 Therefore, w r hen there is tenant for life, w r ith
divers remainders in contingency, he may, not only by his
death, but by alienation, surrender, or other methods, de-
stroy and determine his own life estate* before any of those
remainders vest, the consequence of which is that he utterly
3. Hopkins, Real Prop., 291. of the particular estate before the
4. In many states statutes provide vesting of the remainder shall not
that the acts of the tenant of the defeat the remainder. Hopkins, Real
particular estate shall not defeat the Prop., 294; 1 Stim. Am. St. Law,
remainder; and that the termination 1403, 1426.
220 OF ESTATES IN REMAINDER. [BOOK II.
defeats them all. In these cases, therefore, it is necessary
to have trustees appointed to perserve the contingent re-
mainders, in whom there is vested an estate in remainder
for the life of the tenant for life, to commence when his
estate determines.
In devises by last will and testament (which, being often
drawn up when the party is inops consilii* are always more
favored in construction than formal deeds, which are pre-
sumed to be made with great caution, forethought, and ad-
vice) remainders may be created in some measure contrary
to the rules before laid down, though our lawyers will not
allow such dispositions to be strictly remainders, but call
them by another name, that of executory devises, or devises
hereafter to be executed. [172]
An executory devise of lands is such a disposition of them
by will that thereby no estate vests at the death of the
devisor, but only on some future contingency. It differs
from a remainder in three very material points: 1. That
it needs not any particular estate to support it. 2. That
by it a fee-simple, or other less estate, may be limited after
a fee-simple. [173] 3. That by this means a remainder
may be limited of a chattel interest, after a particular estate
for life created in the same. 6
1. The first case happens when a man devises a future
estate to arise upon a contingency, and, till that contingency
happens, does not dispose of the feesimple, but leaves it to
descend to his heirs at law. As if one devises land to a
feme-sole and her heirs, upon her day of marriage: here
is in effect a contingent remainder without any particular
estate to support it, a freehold commencing in futuroJ
This limitation, though it would be void in a deed, yet is
good in a will by way of executory devise. For since by a
devise a freehold may pass without corporal tradition or
livery of seisin (as it must do if it passes at all), therefore
it may commence in future, because the principal reason
why it cannot commence in futuro in other cases, is the
necessity of actual seisin, which always operates in prae-
5. Lacking counsel. 7. In the future.
6. Hopkins, Real Prop., 300.
CHAP. XL] OF ESTATES IN REMAINDER. 221
senti.* And, since it may thus commence in futuro, there
is no need of a particular estate to support it, the only use
of which is to make the remainder by its unity with the
particular estate a present interest. And hence also it fol-
lows that such an executory devise, not being a present in-
terest, cannot be barred by a recovery suffered before it
commences.
2. By executory devise, a fee, or other less estate, may
be limited after a fee. And this happens where a devisor
devises his whole estate in fee, but limits a remainder
thereon to commerce on a future contingency. As if a man
devises land to A and his heirs; but if he dies before the
age of twenty-one, then to B and his heirs; this remainder,
though void in deed, is good by way of executory devise.
But, in both these species of executory devises, the contin-
gencies ought to be such as may happen within a reason-
able time; as within one or more life or lives in being, or
within a moderate term of years, for courts of justice will
not indulge even wills, so as to create a perpetuity, which
the laws abhors. [174] The utmost length that has been
hitherto allowed for the contingency of an executory devise
of either kind to happen in, is that of a life or lives in being,
and one and twenty years afterwards. 9
3. By executory devise a term of years may be given to
one man for his life, and afterwards limited over in re-
mainder to another, which could not be done by deed; for
by law the first grant of it to a man for life was a total dis-
position of the whole term, a life estate being esteemed of
a higher and larger nature than any term of years. Yet,
in order to prevent the danger of perpetuities, it was settled
that though such remainders may be limited to as many
persons successively as the devisor thinks proper, yet they
8. In the present. as in being for the purpose of taking,
9. This rule prevails, generally, in it is possible that three periods of
the United States, except that in some gestation may occur in a limitation
states all future estates must vest without violation of the rule. See
within two lives in being. Hopkins, Hopkins, Real Prop., 324, note; Gray,
Real Prop., 322-330; Gray, Perp., 144; Perp., 222; Thelluson T. Woodford,
1 Stim. Am. St. Law, 1440, 1442. 11 Ves. 112.
An unborn child being considered
222 OF ESTATES IN REVERSION. [Boox II.
must all be in cssc during the life of the first devisee, for then
all the candles are lighted and are consuming together, and
the ultimate remainder is in reality only to that remainder-
man who happens to survive the rest. And it was also
settled that such remainder may not be limited to take effect
unless upon such contingency as must happen (if at all)
during the life of the first devisee. [175]
III. An estate in reversion is the residue of an estate left
in the grantor, to commence in possession after the determi-
nation of some particular estate granted out by him. Sir
Edward Coke describes a reversion to be the returning of
land to the grantor or his heirs after the grant is over. As,
if there be a gift in tail, the reversion of the fee is, without
any special reservation, vested in the donor by act of law.
And so also the reversion, after an estate for life, years, or
at will, continues in the lessor. For the fee-simple of all
lands must abide somewhere; and if he who was before
possessed of the whole carves out of it any smaller estate
and grants it away, whatever is not so granted remains in
him. A reversion is never, therefore, created by deed or
writing, but arises from construction of law; a remainder
can never be limited, unless by either deed or devise. But
both are equally transferable, when actually vested, being
both estates in praesenti, 1 though taking effect in futuro. 2
The usual incidents to reversions are said to be fealty
and rent. 2a [176] When no rent is reserved on the par-
ticular estate, fealty however results of course, as an inci-
dent quite inseparable, and may be demanded as a badge of ,
tenure, or acknowledgment of superiority, being frequently
the only evidence that the lands are holden at all. Where
rent is reserved it is also incident, though not inseparably
so, to the reversion. The rent may be granted away, re-
serving the reversion, and the reversion may be granted
away, reserving the rent, by special words; but by a general
grant of the reversion, the rent will pass with it as incident
1. In the present. reversioner may maintan an action
2. In the future. for wrongful acts causing damage to
2a. The tenant may not dispute his his reversionary interest. See //op-
landlord's title; snd the landlord or kins, Real Prop., 141, 142 and notes.
CHAP. XL] OF ESTAJES IN REVERSION. 223
thereunto, though by the grant of the rent generally the
reversion will not pass. The incident passes by the grant
of the principal, but not e converse; 3 for the maxim of law
is, " accessorium non ducit, sed sequitur, suum principals. " 4
Before we conclude the doctrine of remainders and rever-
sions, it may be proper to observe that whenever a greater
estate' and a less coincide and meet in one and the same
person, without any intermediate estate, the less is imme-
diately annihilated, or, in the law phrase, is said to be
merged, that is, sunk or drowned in the greater. [177] But
they must come to one and the same person in one and the
same right [and at the same time], else, if the freehold be
in his own right and he has a term in right of another (en
aider droit), there is no merger. 5 An estate- tail is an
exception to this rule; for a man may have in his own right
both an estate-tail and a reversion in fee, and the estate-
tail, though a less estate, shall not merge in the fee. For
estates-tail are protected and preserved from merger by the
operation and construction, though not by the express
words, of the statute de donis* [178]
3. On the contrary. is merged in a bond subsequently
4. The accessory does not lead, but given for the same purpose, and this
follows its principal. bond may be merged by a judgment
5. This is only one instance of mer- rendered upon it.
ger. A note or other simple contract 6. Concerning gifts.
224 OF ESTATES IN SEVERALTY. [BOOK II.
CHAPTER XII.
OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND
COMMON.
Estates of any quantity or length of duration, and
whether they be in actual possession or expectancy, may
be held in four different ways: in severally, in joint-tenancy,
in coparcenary, and in common. [179]
I. He that holds lands or tenements in severalty, or is
sole tenant thereof, is he that holds them in his own right
only, without any other person being joined or connected
with him in point of interest, during his estate therein. All
estates are supposed to be of this sort, unless where they
are expressly declared to be otherwise ; and in laying down
general rules and doctrines, we usually apply them to such
estates as are held in severalty.
II. An estate in joint-tenancy is where lands or tenements
are granted to two or more persons, to hold in fee-simple,
fee-tail, for life, for years, or at will. [180]
1. The creation of an estate in joint-tenancy depends on
the wording of the deed or devise by which the tenants
claim title; for this estate can only arise by purchase or
grant, that is, by the act of the parties, and never by the
mere act of law. Now if an estate be given to a plurality
of persons without adding any 'restrictive, exclusive, or
explanatory words, as if an estate be granted to A and B
and their heirs, this makes them immediately joint tenants
in fee of the lands. 1
2. The properties of a joint estate are derived from its
unity, which is fourfold: the unity of interest, the unity of
title, the unity of time, and the unity of possession; or, in
other words, joint-tenants have one and the same interest,
1. This is still the rule of the com- create a joint tenancy express words
mon law where not changed by stat- to that effect must be used in the in-
ute; but in many of the states a limi- strument creating the estate. Hop-
tation that at common law would kins, Real Prop., 333, 335; 1 Stirn.
create a joint tenancy now creates a Am. St. Law, 1371B.
tenancy in common; and in order to
CHAP. XII.] OF ESTATES IN JOINT-TENANCY. 225
accruing by one and the same conveyance, commencing at
one and the same time, and held by one and the same un-
divided possession.
First, they must have one and the same interest. [181]
One joint-tenant cannot be entitled to one period of dura-
tion or quantity of interest in lands and the other to a
different; one cannot be tenant for life and the other for
years; one cannot be tenant in fee and the other in tail.
But if land be limited to A and B for their lives, this makes
them joint-tenants of the freehold; if to A and B and their
heirs, it makes then? joint-tenants of the inheritance.
Secondly, joint-tenants must also have an unity of title;
their estate must be created by one and the same act,
whether legal or illegal, as by one and the same grant or
by one and the same disseisin. Joint-tenancy cannot arise
by descent or act of law, but merely by purchase or acquisi-
tion by the act of the party; and, unless that act be one and
the same, the two tenants would have different titles, and
if they had different titles, one might prove good and the
other bad, which would absolutely destroy the jointure.
Thirdly, there must also be an unity of time; their estates
must be vested at one and the same period as well as by
one and the same title. If after a lease for life the re-
mainder be limited to the heirs of A and B, and during the
continuance of the particular estate A dies, which vests the
remainder of one moiety in his heir, and then B dies, where-
by the other moiety becomes vested in the heir of B, now
A's heir and B's heir are not joint-tenants of this re-
mainder, but tenants in common, for one moiety vested at
one time and the other moiety vested at another. Yet where
a feoffment was made to the use of a man and such wife as
he should afterwards marry for term of their lives, and he
afterwards married, in this case it seems to have been held
that the husband and wife had a joint-estate, though vested
at different times, because the use of the wife's estate was
in abeyance and dormant till the intermarriage, and, being
then awakened, had relation back, and took effect from the
original time of creation. [182] Lastly, in joint-tenancy
there must be an unity of possession. Joint-tenants are
15
22 G OF ESTATES IN JOINT-TENANCY. [BOOK IT.
said to be seised, per my et per tout, by the half or moiety,
and' by all; that is, they each of them have the entire pos-
session, as well of every parcel as of the whole. They have
not, one of them a seisin of one half or moiety, and the other
of the other moiety, neither can one be exclusively seised
of one acre and his companion of another, but each has an
undivided moiety of the whole, and not the whole of an un-
divided moiety. And therefore, if an estate in fee be given
to a man and his wife, they are neither properly joint- ten-
ants nor tenants in common; for husband and wife being
considered as one person in law,^hey cannot take the estate
by moieties, but both are seized of the entirety, per tout, et
non per my? the consequence of which is that neither the
husband nor the wife can dispose of any part without the
assent of the other, but the whole must remain to the
survivor. 3
Upon these principles, of a thorough and intimate union
of interest and possession, depend many other consequences
and incidents to the joint-tenant's estate. If two joint-
tenants let a verbal lease of their land, reserving rent to be
paid to one of them, it shall inure to both, in respect of the
joint-reversion. If their lessee surrenders his lease to one
of them it shall also inure to both, because of the privity or
relation of their estate. On the same reason, livery of seisin-
made to one joint-tenant shall inure to both of them, and
the entry, or re-entry, of one joint-tenant is as effectual in
law as if it were the act of both. In all actions also relating
to their joint-estate one joint-tenant cannot sue or be sued
without joining the other. Upon the same ground it is held
that one joint-tenant cannot have an action against another
2. By the whole and not by the See the notes on pages 491-499, where
moiety. These estates have been abol- the cases are collected.
ished by statute in many states, Tenancy by entirety is said by
though they exist in others. See Hop- Chancellor Kent to apply to estates
kins, Real Prop., 337. in fee, for life or for years. 2 Kent
3. See the leading cases of Green Com., *132. There is, however, no
ex dem. Crew v. King, 2 W. Bl. 1211, tenancy by entirety in chattels. Polk
and Back v. Andrew, 2 Vern. 120; v. Allen, 19 Mo. 467; Price v. Price,
Ewell's Lead. Cas. (1st Ed.), 488. 5 Ala. 578. See, however, 35 N. Y.
Superior Ct. 486.
CHAP. XII.] OF ESTATES IN JOINT-TENANCY. 227
for trespass in respect of his land, for each has an equal
right to enter on any part of it. [183] But one joint-tenant
is not capable by himself to do any act which may tend to
defeat or injure the estate of the other, as to let leases or
to grant copyholds; and if any waste be done which tends
to the destruction of the inheritance, one joint-tenant may
have an action of waste against the other, by construction
of the statute "Westm. 2, c. 22. So too, though at common
law no action of account lay for one joint-tenant against
another, unless he had constituted him his bailiff or re-
ceiver, yet now by the statute 4 Anne, c. 16, joint-tenants
may have actions of account 4 against each other for receiv-
ing more than their due share of the profits of the tenements
held in joint-tenancy.
From the same principle also arises the remaining grand
incident of joint-estates, viz., the doctrine of survivorship,
by which when two or more persons are seized of a joint-
estate, of inheritance, for their own lives, or pur auter vie, 5
or are jointly possessed of any chattel-interest, the entire
tenancy upon the decease of any of them remains to the
survivors, and at length to the last survivor, and he shall
be entitled to the whole estate, whatever it be, whether an
inheritance or a common freehold only, or even a less estate.
This right of survivorship is called by our ancient authors
the jus accrescendi, because the right upon the death of one-
joint-tenant accumulates and increases to the survivors.
1184] And this jus accrescendi ought to be mutual, which
I apprehend to be one reason why neither the king nor any
corporation can be a joint- tenant with a private person.
For here is no mutuality; the private person has not even
the remotest chance of being seised of the entirety by benefit
of survivorship, for the king and the corporation can never
die.
3. How may an estate in joint-tenancy be severed and
destroyed? [185] This may be done by destroying any
of its constituent unities. 1. That of time, which respects
only the original commencement of the joint-estate, cannot
4. This action is still in use in Illi- 5. For the life of another,
nois. Rev. Stat. 111., ch. 2.
228 OF ESTATES IN JOINT-TENANCY. [BOOK II.
indeed (being now past) be affected by any subsequent
transaction. But, 2. The joint-tenants' estate may be de-
stroyed without any alienation, by merely disuniting their
possession. And, therefore, if two joint-tenants agree to
part their lands and hold them in severalty, they are no
longer joint-tenants, for they have now no joint-interest in
the whole, but only a several interest respectively in the
several parts. And for that reason, also, the right of sur-
vivorship is by such separation destroyed. By common
law all the joint-tenants might agree to make partition of
the lands, but one of them could not compel the other so
to do ; for this being an estate originally created by the act
and agreement of the parties, the law would not permit any
one or more of them to destroy the united possession with-
out a similar universal consent. But now by the statutes
31 Hen. VIII. c. 1, and 32 Hen. VII. c. 32, joint-tenants,
either of inheritance or other less estates, are compellable
by writ of partition 6 to divide their lands. 3. The jointure
may be destroyed by destroying the unity of title. As if
one joint-tenant alienes and conveys his estate to a third
person, here the joint-tenancy is severed and turned into
tenancy in common, for the grantee and the remaining joint-
tenant hold by different titles (one derived from the orig-
inal, the other from the subsequent grantor), though, till
partition made, the unity of possession continues. But a
devise of one 's share by will is no severance of the jointure,
for no testament takes effect till after the death of the
testator, and by such death the right of the survivor (which
accrued at the original creation of the estate, and has there-
fore a priority to the other) is already vested. [186] 4. It
may also be destroyed by destroying the unity of interest.
And, therefore, if there be two joint-tenants for life arid
the inheritance is purchased by or descends upon either,
it is a severance of the jointure; though if an estate is
originally limited to two for life, and after to the heirs of
one of them, the freehold shall remain in jointure without
merging in the inheritance, because, being created by one
and the same conveyance, they are not separate estates
6. See local statutes as to remedies by way of partition.
CHAP. XII.] OF ESTATES IN COPARCENARY. 229
(which is requisite in order to a merger), but branches of
one entire estate. In like manner, if a joint-tenant in fee
makes a lease for life of his share, this defeats the jointure,
for it destroys the unity both of the title and of interest.
And whenever or by whatever means the jointure ceases
or is severed, the right of survivorship or jus accrescendi,
the same instant ceases- with it. Yet if one of three joint-
tenants alienes his share, the two remaining tenants still
hold their parts by joint-tenancy and survivorship ; and if
one of three joint-tenants release his share to one of his
companions, though the joint-tenancy is destroyed with re-
gard to that part, yet the two remaining parts are still held
in jointure, for they still preserve their original constituent
unities. But when by an act or event different interests
are created in the several parts of the estate, or they are
held by different titles, or if merely the possession is sep-
arated, so that the tenants have no longer these four indis-
pensable properties, a sameness of interest and undivided
possession, a title vesting at one and the same time and by
one and the same act or grant, the jointure is instantly
dissolved.
In general it is advantageous for the joint-tenants to dissolve the
jointure, since thereby the right of survivorship is taken away, and each
may transmit his own part to his own heirs. [187] Sometimes, however,
it is disadvantageous to dissolve the joint-estate: as if there be joint-
tenants for life, and they make partition, this dissolves the jointure;
and though before they each of them had an estate in the whole for their
own lives, and the life of their companion, now they have an estate in
a moiety only for their own lives merely, and on the death of either,
the reversioner shall enter on his moiety. And therefore if there be
two joint-tenants for life, and one grants away his part for the life of
his companion, it is a forfeiture; for in the first place, by the severance
of the jointure he has given himself in his own moiety only an estate
for his own life, and then he grants the same land for the life of an-
other, which grant by a tenant for his own life merely, is a forfeiture
of his estate; for it is creating an estate which may by possibility last
longer than that which he is legally entitled to.
III. An estate held in coparcenary 7 is where lands of in-
heritance descend from the ancestor to two or more persons.
7. So called because the coparceners Mr. Hopkins states that they exist
can be compelled to make partition, in only a few states. Hopkins Real
230 OF ESTATES ix COPARCKXAUV. [BOOK II.
It arises either by common law or particular custom. By common
law, as where a person seised in fee-simple or in fee-tail dies and his
next heirs are two or more females, his daughters, sisters, aunts, cou-
sins or their representatives, in this case they shall all inherit, and these
coheirs are then called coparceners, or, for brevity, parceners only. Par-
ceners by particular custom are where lands descend, as in gavelkind,
to all the males in equal degree, as sons, brothers, uncles, &c. And in
either of these cases all the parceners put' together make but one heir,
and have but one estate among them.
The properties of parceners are in some respects like those of joint-
tenants, they having the same unities of interest, title, and possession.
[188] They may sue and be sued jointly for matters relating to their
own lands, and the entry of one of them shall in some cases inure as
the entry of them all. They cannot have an action of trespass against
each other. But herein they differ from joint-tenants, that they are
also excluded from maintaining an action of waste; for coparceners
could at all times put a stop to any waste by writ of partition, but till
the statute of Henry VIII. joint-tenants had no such power. Parceners
also differ materially from joint-tenants in four other points. 1. They
always claim by descent, whereas joint-tenants always claim by pur-
chase. And hence no lands can be held in coparcenery but estates of in-
heritance which are of a descendible nature; whereas not only estates
in fee and in tail, but for life or years, may be held in joint-tenancy. 2.
There is no unity of time necessary to an estate in coparcenary. For
if a man had two daughters to wh6m his estate descends in coparcenary,
and one dies before the other, the surviving daughter and the heir of
the other, or when both are dead their two heirs are still parceners,
the estates vesting in each of them at different times, though it be the
same quantity of interest and held by 'the same title. 3. Parceners,
though they have an unity, have not an entirety of interest. They are
properly entitled each to the whole of a distinct moiety, and of course
there is no jus accrescendi, or survivorship, between them, for each part
descends severally to their respective heirs, though the unity of posses-
sion continues. And as long as the lands continue in a course of descent
and united in possession, so long are the tenants therein, whether male
or female, called parceners. But if the possession be once severed by
partition, they are no longer parceners, but tenants in severally; or if
one parcener alienes her share, though no partition be made, then are
the lands no longer held in coparcenary, but in common. [189]
The estate in coparcenary may be dissolved either by partition, which
disunites the possession; by alienation of one parcener, which disunites
the title and may disunite the interest; or by the whole at last descend-
Prop., 336, 337. In some states this mon. Id., citing 1 Stim. Am. Stat.
estate has been abolished by statute Law, 1375A.
and co-heirs take as tenants in com-
CHAP. XII.] OF ESTATES IN COMMON. 231
ing to and vesting in one single person, which brings it to an estate in
severally. [191]
IV. Tenants in common are such as hold by several and
distinct titles, but by unity of possession, because none
knoweth his own severalty, and therefore they all occupy
promiscuously. 8 This tenancy, therefore, happens where
there is a unity of possession merely but perhaps an entire
disunion of interest, of title, and of time. For if there be
two tenants in common of lands, one may hold his part in
fee-simple, the other in tail or for life, so that there is no
necessary unity of interest. One may hold by descent, the
. other by purchase ; or the one by purchase from A, the other
by purchase from B; so that there is no unity of title. One's
estate may have been vested fifty years, the other's but
yesterday; so there is no unity of time. [192] The only
unity there is, is that of possession, and for this Littleton
gives the true reason, because no man can certainly tell
which part is his own; otherwise even this would be soon
destroyed. .
Tenancy in common may be created either by the de-
struction of the two other estates in joint-tenancy and
coparcenary, or by special limitation in a deed. 9 By the
destruction of the two other estates, I mean such destruc-
tion as does not sever the unity of possession, but only the
unity of title or interest. As if one of two joint-tenants in
fee alienes his estate for the life of the alienee, the alienee
and the other joint-tenants are tenants in common, for they
have now several titles, the other joint-tenant by the orig-
iginal grant, the alienee by the new alienation; and they
also have several interests, the former joint-tenant in fee-
simple, the alienee for his own life only. So if one joint-
tenant gives his part to A in tail and the other gives his
to B in tail, the donees are tenants in common as holding
by different titles and conveyances. If one of two par-
ceners alienes, the alienee and the remaining parcener are
8. Hopkins, Real Prop., 335. now in this country. See ante, Johit
9. This was the common law rule; Tenancy and note.
but the converse is generally the case
232 OF ESTATES IN COMMOX. [BooK IT.
tenants in common, because they hold by different titles,
the parcener by descent, the alienee by purchase. So like-
wise, if there be a grant to two men or two women, and the
heirs of their bodies, here the grantees shall be joint-tenants
of the life estate, but they shall have several inheritances;
because they cannot possibly have one heir of their two
bodies, as might have been the case had the limitation been
to a man and woman and the heirs of their bodies begotten.
And in this and the like cases, their issue shall be tenants in
common, because they must claim by different titles, one as
heir of A and the other as heir of B, and those two not titles
by purchase but descent. [193] In short, whenever an es-
tate in joint-tenancy or coparcenary is dissolved, so that
there be -no partition made, but the unity of possession con-
tinues, it is turned into a tenancy in common.
A tenancy in common may. also be created by express
limitation in a deed. 1 But here care must be taken not to
insert words which imply a joint estate, and then if lands
be given to two or more, and it be not joint-tenancy, it must
be a tenancy in common. But the law is apt in its construc-
tions to favor joint-tenancy rather than tenancy in common,
because the divisible services issuing from land (as rent,.
&c.) are not divided, nor the entire services (as fealty)
multiplied by joint-tenancy, as they must necessarily be
upon a tenancy in common. Land given to two, to be
holden the one moiety to one and the other moiety to the
other, is an estate in common, and if one grants to another
half his land, the grantor and grantee are also tenants in
common, because, as has been before observed, joint-tenants
do not take by distinct halves or moieties; and by such
grants the division and severalty of the estate is so plainly
expressed that it is impossible they should take a joint in-
terest in the whole of the tenements. But a devise to two
persons to hold jointly and severally is said to be a joint-
tenancy, because that is necessarily implied in the word
" jointly," the word " severally " perhaps only implying
the power of partition. And an estate given to A and B,
equally to be divided between them, though in deeds it hath
1. See ante, Joint Tenancy and note.
CHAP. XII.] OF ESTATES IN COMMON. 233
been said to be a joint-tenancy, for it implies no more
than the law has annexed to that estate, \iz., divisibility,
yet in wills it is certainly a tenancy in common, because the
devisor may be presumed to have meant what is most bene-
ficial to both the devisees, though his meaning is imperfectly
expressed. And this nicety in the wording of grants makes
it the mosi usual, as well as the wafest way when a tenancy
in common is meant to be created, to add express words of
exclusion as well as description, and limit the estate to A
and B to hold as tenants in common, and not as joint-ten-
ants. 2 [194]
As to the incidents attending a tenancy in common, ten-
ants in common (like joint-tenants) are compellable by the
statutes of Henry VIII. and William III., before mentioned,
to make partition of their lands, which they were not at
common law. They properly take by distinct moieties, and
have no entirety of interest, and therefore there is no sur-
vivorship between tenants in common. Their other inci-
dents are such as merely arise from the unity of possession,
and are therefore the same as appertain to joint-tenants
merely upon that account : such as being liable to reciprocal
actions of waste 3 and of account 4 by the statutes of Westm.
2, c/22, and 4 Anne, c. 16. For by the common law no tenant
in common was liable to account with his companion for
embezzling the profits of the estate, though if one actually
turns the other out of possession, an action of ejectment 5
will lie against him. But as for other incidents of joint-
tenants which arise from the privity of title or the union
and entirety of interest (such as joining or being joined
in actions, unless in the case where some entire or indivi-
sible thing is to be recovered), these are not applicable to
tenants' in common, whose interests are distinct and whose
titles are not joint, but several.
2. In order to limit a joint tenancy 3. See ante, Waste,
in most of the states, use the words 4. This action is still in use in Illi-
" to hold as joint tenants and not as nois. Rev. Stat. 111., ch. 2.
tenants in common; " but first con- 5. The common law actions will be
suit the statutes. See Hopkins, Real treated later on.
Prop., 335, 336.
234 OF ESTATES IN COMMON. [BOOK IT.
Estates in common can only be dissolved two ways: 1.
By uniting all the titles and interests in one tenant, by pur-
chase or otherwise, which brings the whole to one severalty.
12. By making partition between the several tenants in
common, which gives them all respective severalties. For r
indeed, tenancies in common differ in nothing from sole
estates, but merely in the blending and unity of possession.
And this finishes our inquiries with respect to the nature
of estates.
CJIAP. XIII. ] THE TITLE TO THINGS REAL. 235
CHAPTER XIII.
OF THE TITLE TO THINGS BEAL, IN GENERAL.
A title is thus denned by Sir Edward Coke : Titulus est
justa causa possidendi id quod 'nostrum est; or, it is the
means whereby the owner of lands hath the just possession
of his property. [195]
There are several stages or degrees requisite to form a
complete title to lands and tenements. We will consider
them in a progressive order.
I. The lowest and most imperfect degree of title consists
in the mere naked possession, or actual occupation of the
estate, without any apparent right, or any shadow or pre-
tence of right, to hold and continue such possession. 1
This may happen when one man invades the possession of
another, and by force or surprise turns him out of the occu-
pation of his lands, which is termed a disseisin, being a de-
privation of that actual seisin or corporal freehold of the
lands which the tenant before enjoyed. Or it may happen
that after the death of the ancestor and before the entry
of the heir, or after the death of a particular tenant and
before the entry of him in remainder or reversion, a stran-
ger may contrive to get possession of the vacant land and
hold out him that had a right to enter. [196] In the mean-
time, till some act be done by the rightful owner to devest
1. Mere possession will prevail of acquiring possession. See 2 Bou-
everywhere as against a wrongdoer vier Law Diet. Possession and author-
without title. And this is true both ities cited. It s doubtful whether
as to real and personal property. See this statement is correct in its fullest
the leading case of Armory v. Dela- extent, for an infant of sufficient un-
mire, 1 Strange, 504; 1 Smith's Lead, derstanding may lawfully acquire the
Cases (9th Am. Ed.), 631 and notes, possession of a thing. Id. The so-
In order to complete a possession called Torrens system has been
two things are necessary: First, an adopted in Illinois and quite a num-
occupancy, .apprehension or taking, ber of other states. See the report
and, secondly, that the taking be with of the committee on the Torrens sys-
an intent to possess (animus possi- tern in the proceedings of the sixth
dcndi) ; hence persons who have no annual meeting of the Colorado Bar
legal will are said not to be capable Association, July, 1903.
236 THE TITLE TO THINGS REAL. [BOOK II.
this possession and assert his title, such actual possession
is, prima facie, evidence of a legal title in the possessor,
and it may, by length nf time and negligence of him who
hath the right, by degrees ripen into a perfect and inde-
feasible title. And at all events, without such actual pos-
session no title can be completely good.
II. The next step to a good and perfect title is the right
of possession, which may reside in one man, while the actual
possession is not in himself, but in another. For if a man
be disseised, or otherwise kept out of possession by any of
the means before mentioned, though the actual possession
be lost, yet he has still remaining in him the right of pos-
session, and may exert it whenever he thinks proper by enter-
ing upon the disseisor and turning him out of that occu-
pancy which he has so illegally gained. But this right of
possession is of two sorts: an apparent right of possession,
which may be defeated by proving a better, and an actual
right of possession, which will stand the test against all
opponents. Thus if the disseisor or other wrong doer dies
possessed of the land whereof he so became seized by his
own. unlawful act, and the same descends to his heir, now
by the common law the heir hath obtained an apparent
right, though the actual right of possession resides in the
person disseised, and it shall not be lawful for the person
disseised to devest this apparent right by mere entry or
other act of his own, but only by an action at. law [i. e. a
real action, which is now obsolete]. But if he who- has the
actual right of possession puts in his claim and brings his
action within a reasonable time, and can prove by what
unlawful means the ancestor became seised, he will then by
sentence of law recover that possession to which he hath
such actual right. [197] Yet, if he omits to bring this
his possessory action within a competent time, his adver-
sary may imperceptibly gain an actual right of possession
in consequence of the other's negligence. And by this and
certain other means the party kept out of possession may
have nothing left in him but what we are next to speak of,
viz. :
III. The mere right of property, the jus proprietatis f
CHAP. XIII.] THE TITLE TO THINGS REAL. 237
without either possession or even the right of possession,
This is frequently spoken of in our books under the name
of the mere right, jus merum, and the estate of the owner is
in such cases said to be totally devested and put to a right. 2
A person in this situation may have the true ultimate property of the
lands in himself, but by the intervention of certain circumstances,
either by his own negligence, the solemn act of his ancestor, or the
determination of a court of justice, the presumptive evidence of that
right is strongly in favor of his antagonist, who has thereby obtained
the absolute right of possession. As, in the first place, if a person
disseised, or turned out of possession of his estate, neglects to pursue
his remedy within the time limited by law, by this means the disseisor
or s his heirs gain the actual right of possession; for the law presumes
that either he had a good right originally, in virtue of which he entered
on the lands in question, or that since such his entry he has procured
a sufficient title, and therefore, after so long an acquiescence, the law
will not suffer his possession to be disturbed without inquiring into the
absolute right of property. [198] Yet still, if the person disseised or
his heir hath the true right of property remaining in himself, his estate
is indeed said to be turned into a mere right, but, by proving such his
better right* he may at length recover the lands. Again, if a tenant
in tail discontinues his estate-tail by alienating the lands to a stranger
in fee, and dies, here the issue in tail hath no right of possession, inde-
pendent of the right of property; for the law presumes prima facie that
the ancestor would not disinherit or attempt to disinherit his heirs un-
less he had power so to do, and therefore, as the ancestor had in him-
self the right of possession, and has transferred the same to a stranger,
the law will not permit that possession now to be disturbed, unless by
showing the absolute right of property to reside in another person. The
heir therefore in this case has Only a mere right, and must be strictly
held to the proof of it, in order to recover the lands. Lastly, if by
accident, neglect, or otherwise, judgment is given for either party in any
possessory action (that is, such wherein the right of possession only,
and not that of property is contested), and the other party hath indeed
in himself the right of property, this is now turnrd to a mere right, and
upon proof thereof in a subsequent action, denominated a writ of right,
he shall recover his seisin of the lands.
Thus, if a disseisor turns me out of possession i.f my lands, he thereby
gains a mere naked possession, and I still retain th& right of possession and
right of property, if the disseisor dies and the lands descend to his son,
2. See Stat. 3 & 4 Wm. IV., c. 27. right to possession could be vindi-
Eeal actions, by which alone this cated, having been abolished, this dis-
mere right as distinguished from the tinction is no longer important.
238 THE TITLE TO THINGS REAL. [BOOK IT.
the son gains an apparent right of possession; but I still retain the actual
right both of possession and property, if I acquiesce for thirty years
without bringing any action to recover possession of the lands, the son
gains the actual right of possession, and I retain nothing but the mere
right of property. [199] And even this right of property will fail, or at
least it will be without a remedy, unless I pursue it within the space of
sixty years. So also if the father be tenant in tail and alienes the estate-
tail to a stranger in fee, the alienee thereby gains the right of possession,
and the son hath only the mere right or right of property. And hence it
will follow that one man may have the possession, another the right of
possession, and a third the right of property. For if a tenant in tail
infeoffs A in fee-semple and dies, and B disseises A, now B will have the
possession, A the right of possession, and the issue in tail the right of
property: A may recover the possession against B, and afterwards the
issue in tail may evict A, and unite in himself the possession, the pight
of possession, and also the right of property. In which union consists:
IV. A complete title to lands, tenements, and heredita-
ments. For it is an ancient maxim of the law that no title
is completely good unless the right of possession be joined
with the right of property, which right is then denominated
a double right, jus duplicatum, or droit droit. 'And when
to this double right the actual possession is also united,
there is, according to the expression of Fleta, juris et
seisinae conjunction then, and then only, is the title com-
pletely legal. 4
3. A joining of right and seisin. constructively possession of the whole,
4. Possession and right of posses- provided no one else is occupying any
sion are now in any case sufficient to portion thereof." Cooley on Torts
maintain an action. Possession may (Students' Ed., 1907), 316 and cases
be actual or constructive. " If one cited. The statutes of forcible entry
occupies part of a known description and detainer in the several states
of land, but has color of title to the should be consulted upon the subject
whole and claims the whole, he has of entry.
CHAP. XIV.] OF TITLE BY DESCENT. 239
CHAPTER XIV.
OF TITLE BY DESCENT.
The methods of acquiring and of losing a title to estates
in things real are reduced by our law to two : descent, where
the title is vested in a man by the single operation of law,
and purchase, where the title is vestecj in him by his own
act or agreement. 1 [201]
Descent or hereditary succession is the title whereby a
man on the death of his ancestor acquires his estate by right
of representation, as his heir at law. An heir, therefore, is
he upon whom the law casts the estate immediately on the
death of the ancestor, and an estate so descending to the
heir is in law called the inheritance.
As the common law doctrine of inheritance depends not
a little on the nature of kindred and the several degrees of
consanguinity, it will be previously necessary to state, as
briefly as possible, the true notion of this kindre^ or alliance
in blood. [202]
Consanguinity, or kindred, is denned by the writers on
these subjects, to be " vinculum personarum ab eodem sti-
pite descendentium/' the connection or relation of persons
descended from the same stock or common ancestor. This
consanguinity is either lineal or collateral.
Lineal consanguinity is that which subsists between per-
sons, of whom one is descended in a direct line from the
other, as between John Stiles and his father, grandfather,
great-grandfather, and so upwards in the direct ascending
line, or between John Stiles and his son, grandson, great-
grandson, and so downwards in the direct descending line.
[203] Every generation in this lineal direct consanguinity
constitutes a different degree, reckoning either upwards or
downwards. The father of John Stiles is related to him
1. Hopkins, Real Prop., 399. A ordinary transfer from individuals;
state may acquire title (a) by dis- (e) or by forfeiture to the state for
covery, conquest and treaty; (b) by nonpayment of taxes in some states,
confiscation and escheat; (c) by the Id.
right of eminent domain; and (d) by
240 OF TITLE BY DESCENT. [BOOK II.
in the first degree, and so likewise is his son; his grandsire
and grandson in the second; his great-grandsire and great-
grandson in the third. This is the only natural way of
reckoning the degrees in the direct line, and therefore uni-
versally obtains, as well in the civil and canon as in the
common law.
Collateral kindred agree with the lineal in this, that they
descend from the same stock or ancestor, but differ in this,
that they do not descend one from the other. [204] Col-
lateral kinsmen are such then as lineally spring from one
and the same ancestor, who is the stirps, or root, the stipes,
trunk, or common stock, from whence these relations are
branched out. As if John Stiles hath two sons, who have
a numerous issue: both these issues are lienally descended
from John Stiles as their common ancestor, and they are
collateral kinsmen to each other, because they are all de-
scended from this common ancestor, and all have a portion
of his blood in their veins, which denominates them con-
sanguincos. [205]
The method of computing degrees of collateral consan-
guinity in the canon law, which our law has adopted, is as
follows: We begin at the common ancestor and reckon
downwards, and in whatever degree the two persons or the
most remote of them is distant from the common ancestor,
that is the degree in which they are related to each other.
[206] Thus Titim and his brother are related in the first de-
gree, for from the father to each of them is counted only one ;
Titius and his nephew are related in the second degree, for
the nephew is two degrees removed from the common an-
cestor, viz., his own grandfather, the father of Titius. [207]
The civilians count upwards, from either of the persons
related, to the common stock, and then downwards again
to the other, reckoning a degree for each person both as-
cending and descending. 2
I. The first rule or canon of inheritance is, that inherit-
2. The mode of the civil law is pref- most of the states the civil law rule
erable for it points out the actual de- of reckoning has been adopted. Hop-
jrr e of kindred in all cases. 1 Bou- kins, Real Prop., 484.
vier Law Diet. Consanguinity. In
CHAP. Xl^ 7 .] OF TITLE BY DESCENT. 241
ances shall lineally descend to the issue of the person who
last died actually seised in infinitum, 3 but shall never lin-
eally ascend. 4 [208]
To explain the more clearly both this and the subsequent
rules, it must first be observed that by law no inheritance
can vest, nor can any person be the actual complete heir
of another, till the ancestor is previously dead. Nemo est
haeres viventis. Before that time the person who is next
in the line of succession is called an heir apparent, or heir
presumptive. Heirs apparent are such whose right of in-
heritance is indefeasible, provided they outlive the ancesor,
as the eldest son or his issue, who must by the course of the
common law be heir to the father whenever he happens to
die. Heirs presumptive are such who, if the ancestor should
die immediately, would in the present circumstances of
things be his heirs, but whose right of inheritance may be
defeated by the contingency of some nearer heir being
born, as a brother or nephew, whose presumptive suc-
cession may be destroyed by the birth of a child; or a
daughter, whose present hopes may be hereafter cut off by
the birth of a son. Nay, even if the estate hath descended,
by the death of the owner, to such brother or nephew or
daughter, in the former cases the estate shall be devested
and taken away by the birth of a posthumous child, and in
the latter it shall also be totally devested by the birth of a
posthumous son.
We must also remember that no person can be properly
such an ancestor as that an inheritance of lands or tene-
3. To infinity. the inheritance must descend, was also
4. This rule has been changed by changed by the statute of William
statute both in England and the IV., which constitutes the last pur-
United States, and persons in the chaser, and not the person last seised
ascending line are in certain cases the person from whom the descent
permitted to inherit. Consult 3 & 4 shall be traced. See Broom, Leg.
Wm. IV., ch. 106; Hopkins, Real Max., *467, 468, 469. The same rules
Prop., 482; Broom's Leg. Max., *469; prevail in this country. See the local
and the local statutes of the several statutes. Livery of seisin is obsolete
states. and has been abolished by statute in
The maxim non jus sed seisina fa- probably most of the states. See
cit slipitem, not the right but the sei- Rev. Stat. 111., ch. 30, sec. 1.
ein constitutes the stock from which
1C
242 OF TITLE BY DESCENT. [BooK IT.
merits can be derived from him, unless he hath had actual
seisin of such lands, either by his own entry or by the pos-
session of his own or his ancestor's lessee for years, or by
receiving rent from a lessee of a freehold ; or unless he hatli
had what is equivalent to corporal seisin in hereditaments
that are incorporeal. [209] But he shall not be accounted
an ancestor who hath had only a bare right or title to enter
or be otherwise seised.
II. A second general rule or canon is, that the male issue
shall be admitted before the female. 5 [212] But our law
does not extend to a total exclusion of females, as the Salic
law and others, where feuds were most strictly retained, it
only postpones them to males, for though daughters are
excluded by sons, yet they succeed before any collateral
relations. [214]
III. A third rule or canon of descent is this: that where
there are two or more males in equal degree, the eldest only
shall inherit, but the females all together. 6
However, the succession by primogeniture, even among females, took
place as to the inheritance of the crown, wherein the necessity of a
sole and determinate succession is as great in the one sex as the other.
[216] And the right of sole succession, though not of primogeniture,
was also established with respect to female dignities and titles of honor.
For if a man holds an earldom to him and the heirs of his body, and
dies, leaving only daughters, the eldest shall not of course be countess,
but the dignity is in suspense or abeyance till the king shall declare his
pleasure; for he, being the fountain of honor, may confer it on which
of them he pleases.
IV. A fourth rule or canon of descents is this: that the
lineal descendants, in infinitum, of any person deceased
shall represent their ancestor; that is, shall stand in the
same place as the person himself would have done had he
been living. [217]
Thus the child, grandchild, or great-grandchild (either
male or female), of the eldest son succeeds before the
5. In this country, males and fe- 6. Primogeniture does not prevail
males inherit equally, but the male in this country. Hopkins, Real Prop.,
issue are still preferred in England. 483.
See Hopkins, Real Prop., 482.
CHAP. XI\ r .] OF TITLE BY DESCENT. 243
younger son, and so in infinitum; and these representatives
shall take neither more nor less, but just so much as their
principals would have done. This taking by representation
is called succession in stir^es, according to the roots, since
all the branches inherit the same share that their root,
whom they represent, would have done. 7 Among these
several issues or representatives of the respective roots,
the same preference to males and the same right of primo-
geniture obtain as would have obtained at the first among
the roots themselves, the sons or daughters of the deceased.
[218]
V. A fifth rule is, that on failure of lineal descendants
or issue of the person last seised, the inheritance shall de-
scend to his collateral relations being 1 of the blood of the
first purchaser, subject to the three preceding rules. 8
Thus if Geoffrey Stiles purchases land, and it descends to
John Stiles his son, and John dies seised thereof without
issue, whoever succeeds to this inheritance must be of the
blood of Geoffrey, the first purchaser of this family. The
first purchaser, perquisitor, is he who first acquired the
estate to his family, whether the same was transferred to
him by sale or by gift, or by any other method, except only
that of descent.
When feuds first began to be hereditary, it was made a
necessary qualification of the heir who would succeed to a
feud that he should be of the blood of, that is, lineally de-
scended from, the first feudatory or purchaser. [221] In
consequence whereof, if a vassal died seised of a feud of
his own acquiring, or feudum novumf it could not descend
to any but his own offspring, no, not even to his brother,
because he was not descended nor derived his blood from
the first acquirer. But if it was feudum antiquum, 1 that
is, one descended to the vassal from his ancestors, then his
7. In some of the states the heirs itself. Statutes have no extra'-territo-
take per stirpes and in others per rial force and the laws of descent are
capita, that is, share and share alike, strictly local and must be consulted
Hopkins, Real Prop., 483; 1 Stim. in every case.
Am. St. Law, 3137. 9. A new feud.
8. The statutes on this subject are 1. An old feud,
diverse and each state is a law unto
244 OF TITLE BY DESCENT. [BOOK II.
brother, or such other collateral relation as was descended
and derived his blood from the first .feudatory, might suc-
ceed to such inheritance. However, in process of time,
when the feodal rigor was in part abated, a method was
invented to let in the collateral relations of the grantee to
the inheritance by granting him a feudum novum to hold
ut feudum antiquum, that is, with all the qualities annexed
of a feud derived from his ancestors, and then the collateral
relations were admitted to succeed even in infinitum, be-
cause they might have been of the blood of, that is, de-
scended from, the first imaginary purchaser.
Of this nature are all the grants of fee-simple estates of
this kingdom, for there is now in the law of England no
such thing as a grant of a feudum novum to be held ut
novum, unless in the case of a fee-tail, and there we see
that this rule is strictly observed, and none but the lineal
descendants of the first donee (or purchaser) are admitted.
But every grant of lands in fee-simple is with us a feudum
novum to be held ut antiquum, a$ a feud whose antiquity is
indefinite, and therefore the collateral kindred of the
grantee, or descendants from any of his lineal ancestors, by
whom the lands might have possibly been purchased, are
capable of being called to the inheritance. [222]
Yet when an estate hath really descended in a course of
inheritance to the person last seised, the strict rule of the
feodal law is still observed, and none are admitted but the
heirs of those through whom the inheritance hath passed,
for all others have demonstrably none of the blood of the
first purchaser in them, and therefore shall never succeed.
As, if lands come to John Stiles by descent from his mother,
Lucy Baker, no relation of his father (as such) shall ever
be his heir of these lands. And vice versa, if they de-
scended from his father, Geoffrey Stiles, no relation of his
mother (as such) shall ever be admitted thereto, for his
father's kindred have none of his mother's blood, nor have
his mother's relations any share of his father's blood.
Here we may observe that so far as the feud is really
antiquum, the law traces it back, and will not suffer any to
inherit but the blood of those ancestors from whom the
CHAP. XIV.] OF TITLE BY DESCENT. 245
feud was conveyed to the late proprietor. [223] But when,
through length of time, it can trace it no farther, as if it
be not known whether his grandfather, George Stiles, in-
herited it from his father, Walter Stiles, or his mother,
Christian Smith, or if it appear that his grandfather was
the first grantee, and so took it, by the general law, as a
feud of indefinite antiquity, in either of these cases the
law admits the descendants of any ancestor of George Stiles,
either paternal or maternal, to be in their due order the
heirs to John Stiles of this estate ; because in the first case
it is really uncertain, and in the second case it is supposed
to be uncertain, whether the grandfather derived his title
from the part of his father or his mother.
This, then, is the great and general principle upon which
the law of collateral inheritance depends: that, upon failure
of issue in the last proprietor, the estate shall descend to the
blood of the first purchaser; or, that it shall result back
to the heirs of the body of that ancestor from whom it
either really has, or is supposed by fiction of law to have
originally descended. 2
The rules of inheritance that remain are only rules of
evidence calculated to investigate who the purchasing an-
cestor-was, which in feudis vere antiquis 3 has, in process
of time, been forgotten, and is supposed so to be in feuds
that are held ut antiquis* [224]
VI. A sixth rule or canon, therefore, is, that the collateral
heir of the person last seised must be his next collateral
kinsman of the whole blood. 5
First, he must be his next collateral kinsman, either per-
sonally or jure representation is, Q which proximity is reckoned
according to the canonical degrees of consanguinity before
mentioned.
The right of representation being thus established, the
2. See, as to ancestral lands, Hop- ants from the same pair of ancestors,
kins, Real Prop., 484, 485. Hopkins, Real Prop., 485. This rule
3. In feuds really ancient. . has been changed in most, if not all,
4. As ancient. of the states. Hopkins, Real Prop.;
5. By whole blood is meant that 1 Stim. Am. Stat. Law, 3133.
the heir and the intestate are descend- 6. By right of representation.
246 OF TITLE BY DESCENT. [BOOK II.
former part of the present rule amounts to this: that on
failure of issue of the person last seised, the inheritance
shall descend to the other subsisting issue of his next imme-
diate ancestor. [225] Thus, if John Stiles dies without
issue, his estate shall descend to Francis his brother or his
representatives, he being lineally descended from Geoffrey
Stiles, John's next immediate ancestor, or father. On
failure of brethren or sisters and their issue, it shall de-
scend to the uncle of John Stiles, the lineal descendant of
his grandfather George, and so on in infinitum. But though
the common ancestor be thus the root of the inheritance,
yet with us it is not necessary to name him in making out
the pedigree or descent. [226] For the descent between
two brothers is held to be an immediate descent, and there-
fore title may be made by one brother or his representatives
to or through another without mentioning their common
father. But though the common ancestors are not named
in deducing the pedigree, yet the law still respects them
as the fountains of inheritable blood; and, therefore, in
order to ascertain the collateral heir of John Stiles, it is
first necessary to recur to his ancestors in the first degree,
and if they have left any other issue besides John, that
issue will be his heir. On default of such, we must ascend
one step higher, to the ancestors in the second degree, and
then to those in the third and fourth, and so upwards in
infinitum, till some couple of ancestors be found who have
other issue descending from them besides the deceased in
a parallel or collateral line. From these ancestors the heir
of John Stiles must derive his descent, and in such deriva-
tion the same rules must be observed with regard to the
sex, primogeniture, and representation, that have before
been laid down with regard to lineal descents from the per-
son of the last proprietor. [227]
But, secondly, the heir need not be the nearest kinsman
absolutely, but only sub modo; 1 that is, he must be the near-
est kinsman of the whole blood; for if there be a much
nearer kinsman of the half blood, a distant kinsman of the
whole blood shall be admitted, and the other entirely ex-
7. In a manner.
CHAP. XIV.] OF TITLE BY DESCENT. 247
eluded ; nay, the estate shall escheat to the lord sooner than
the half blood shall inherit. A kinsman of the whole blood
is he that is derived, not only from the same ancestor, but
from the same couple of ancestors. [See Maine's Anc.
Law, 146.]
By our law as it now stands, the crown which is the highest inheri-
tance in the nation may descend to the half blood of the preceding
sovereign, so that it be the blood of the first monarch purchaser, or, in
the feodal language, conqueror of the reigning family. [233] Also in
estates tail, where the pedigree from the first donee must be strictly
proved, half blood is no impediment to the descent.
VII. The seventh and last rule or canon is, that in col-
lateral inheritances the male stocks shall be preferred to
the female, that is, kindred derived from the blood of
the male ancestors, however remote, shall be admitted be-
fore those from the blood of the female, however near,
unless where the lands have in fact descended from a
female. 8 [234]
8. Not the law in the United States. Hopkins, Real Prop., 485.
248 Or TITLE BY PURCHASE. [BOOK II.
CHAPTER XV.
OF TITLE BY PURCHASE ; AND, I. BY ESCHE.AT.
Purchase <perquisitio), taken in its largest and most
extensive sense, is thus defined by Littleton: the possession
of lands and tenements, which a man hath by his own act
or agreement, and not by descent from any of his ancestors
or kindred. [241] In this sense it is contradistinguished
from acquisition by right of blood, and includes every other
method of coming to an estate but merely that by inherit-
ance ; wherein the title is vested in a person, not by his own
act or agreement, but by the single operation of law.
If I give land freely to another, he is in the eye of the
law a purchaser. A man who has his father's estate settled
upon him in tail before he was born is also a purchaser, for
he takes quite another estate than the law of descents would
have given him. Nay, even if the ancestor devises his es-
tate to his heir-at-law by will ivith other limitations, or in
any other shape than the course of descents would direct,
such heir shall take by purchase. But if a man, seised in
fee, devises his whole estate to his heir-at-law, so that the
heir takes neither a greater nor a less estate by the devise
than he would have done without it, he shall be adjudged
to take by descent, even though it be charged with incum-
brances ; this being for the benefit of creditors and others
who have demands on the estate of the ancestor. [242] If
a remainder be limited to the heirs of Sempronius, here
Sempronius himself takes nothing; but if he dies during
the continuance of the particular estate, his heirs shall
take as purchasers. But if an estate be made to A for
life, remainder to his right heirs in fee, his heirs shall take
by descent; for it is an ancient rule of law that whenever
the ancestor takes an estate for life the heir cannot by the
same conveyance take an estate in fee by purchase, but
only by descent. And if A dies before entry, still his heirs
shall take by descent and not by purchase; for where the
heir takes anything that might have vested in the ancestor,
CHAP. XV.] OF TITLE BY PURCHASE. 249
he takes by way of descent. The ancestor during his life
beareth in himself all his heirs, and therefore, when once
he is or might have been seised of the lands, the inheritance
so limited to his heirs vests in the ancestor himself; and
the word " heirs " in this case is not esteemed a word of
purchase but a word of limitation, inuring so as to increase
the estate of the ancestor from a tenancy for life to a fee-
simple. 1
The difference in effect between the acquisition of an
estate by descent and by purchase, consists principally in
these two points: 1. That by purchase the estate acquires a
new inheritable quality, and is descendibl to the owner's
blood in general, and not the blood only of some particular an-
cestor. [243] For when a man takes an estate by purchase,,
he takes it not ut feudum paternum or maternum, 2 which
would descend only to the heirs by the father's or the
mother's side, but he takes it ut feudum antiquum, 3 as a
feud of indefinite antiquity, whereby it becomes inheritable
to his heirs general, first of the paternal and then of the
maternal line. 2. An estate taken by purchase will not
make the heir answerable for the acts of the ancestor as an
estate by descent will. For if the ancestor, by any deed,
obligation, covenant, or the like, bindeth himself and his
heirs and dieth, this deed, obligation, or covenant shall be
binding upon the heir, so far forth only as he (or any other
in trust for him) had any estate of inheritance vested in him
by descent from (or any estate pur auter vie 4 coming to
him by special occupancy as heir to) that ancestor suffi-
cient to answer the charge, whether he remains in possession
or hath alienated it before action brought, which sufficient
1. This is the celebrated rule in limitation and not of purchase. See
Shelley's Case, 1 Rep. 98. In some Hopkins, Real Prop., 295-298, for a
of the states it is still the law; in detailed explanation. In Illinois it is
others it has been abolished. The held that the rule yields to the in-
rule may be formulated as follows: tention of the donor or testator when
Where an estate of freehold is limited clearly expressed in the instrument,
to a person and by the same convey- Belslay v. Eagel, 107 111. 182; Gris-
ance an estate in form, a remainder wold v. Hicks, 132 id. 494.
is given either mediately or immedi- 2. As a fee paternal or maternal,
ately to his heirs or the heirs of his 3. As an ancient fee.
body, the word " heirs " is a word of 4. For the life of another.
250 OF TITLE BY ESCHEAT. [BOOK II.
estate is in the law called assets, from the French word
assez, enough. [244] Therefore, if a man covenants for
himself and his heirs to keep my house in repair, I can then
(and then only) compel his heir to perform this covenant
when he has an estate sufficient for this purpose, or assets
by descent from the covenantor; for though the covenant
descends to the heir whether he inherits any estate or no,
it lies dormant, and is not compulsory until he has assets
by descent.
This being the legal signification of the word purchase,
in this sense it includes the five following methods of ac-
quiring a title to estates: 1. Escheat. 2. Occupancy.
3. Prescription. 4. Forfeiture. 5. Alienation.
I. Escheat was one of the fruits and consequences of
feodal tenure. The word itself is originally French or
Norman, in which language it signifies chance or accident;
and with us it denotes an obstruction of the course of de-
scent, and a consequent determination of the tenure by some
unforeseen contingency, in which case the land naturally
results back by a kind of reversion to the original grantor
or lord of the fee. 5
In order to complete this title by escheat, it is necessary
that the lord perform an act of his own, by entering on the
lands and tenements so escheated, or suing out a writ of
escheat, on failure of which, or by doing any act that
amounts to an implied waiver of his right, as by accepting
homage or rent of a stranger who usurps the possession, his
title by escheat is barred. [245] It is therefore in some
respect a title acquired by his own act, as well as by act of
law.
The law of escheats is founded upon this single principle,
that the blood of the person last seized in fee-simple is, by
some means or other, utterly extinct and gone; and, since
none can inherit his estate but such as are of his blood and
consanguinity, it follows as a regular consequence that
5. With us the land in default of the county in which the property is
heirs escheats to the state. Hopkins, situated. Rev. Stat. 111., ch. 49, sec.
Real Prop., 485, 486; 1 Stim. Am. 1. Prior to the Act of 1874 it es-
St:it. Law, 1151, 3125. In Illinois cheated to the tate.
real and personal esta'e escheat to
CHAP. XV.] OF TITLE BY ESCHEAT. 251
when such blood is extinct, the inheritance itself must fail ;
the land must become what the feodal writers denominate
feudum apcrtiim? and must result back again to the
lord of the fee, by whom, or by those wh6se estate he hath,
it was given.
Escheats are frequently divided into those propter de-
fectum sanguinis, 7 and those propter delictum tenentis, 8
the one sort if the tenant dies without heirs; the other, if
his blood be attainted. But both these species may well
be comprehended under the first denomination only, for he
that is attainted suffers an extinction of his blood as well as
he that dies without relations. [246] The inheritable
quality is expunged in one instance, and expires in the
other.
Escheats, therefore, arising merely upon the deficiency of
the blood, whereby the descent is impeded, their doctrine
will be better illustrated by considering the several cases
wherein hereditary blood may be deficient, than by any
other method whatsover.
1, 2, 3. First, when the tenant dies without any relations
on the part of any of his ancestors; secondly, when he dies
without any relations on the part of those ancestors from
whom his estate descended; thirdly, when he dies without
any relations of the whole blood.
4. A monster, which hath not the shape of mankind, but
in any part evidently bears the resemblance of the brute
creation, hath no inheritable blood, and cannot be heir to
any land, albeit it be brought forth in marriage; but, al-
though it hath deformity in any part of its body, yet if it
hath human shape it may be heir. Our law will not admit
a birth of this kind to be such an issue as shall entitle the
husband to be tenant by the curtesy, because it is not
capable of inheriting. And, therefore, if there appears no
other heir than such a prodigious birth, the land shall es-
cheat to t'he lord. 9 [247]
6. An open fee. 9. 2 Bouvier Law Diet. Monster;
7. On account of defect of blood: Swell's Med. Jur. ( 2d Ed. ) , 177 ; Ogs-
8. On account of the crime of ttie ton, Med. Jur., 178; 2 Witthaus &
tenant. Becker, Med. Jur., 392.
252 OF TITLE BY ESCHEAT. [BOOK II.
5. Bastards are incapable of being heirs. 1 Bastards, by
our law, are such children as are not born either in lawful
wedlock or within a competent time after its determination.
Such are held to be nullius filii, the sons of nobody. Being
thus the sons of nobody, they have no blood in them, at
least no inheritable blood, consequently none of the blood of
the first purchaser; and, therefore, if there be no other
claimant than such illegitimate children, the land shall
escheat to the lord.
There is, indeed, one instance in which our law has shown them some
little regard, and that is usually termed the case of Bastard eigne and
mulier puisne. This happens when a man has a bastard son and after-
wards marries the mother, and by her has a legitimate son, who, in the
language of the law, is called a mulier, or, as Glanvil expresses it in his
Latin, filius mulieratus, the woman before marriage being concubina, and
afterwards mulier. Now here the eldest son is bastard, or bastard eigne,
and the younger son is legitimate, or mulier puisne, if then the father
dies, and the bastard eigne enters upon his land and enjoys it to his
death, and dies seised thereof, whereby the inheritance descends to his
issue, In this case the mulier puisne, and all other heirs (though minors,
feme-coverts, or under any incapacity whatsoever) are totally barred of
their right.
As bastards cannot be heirs themselves, so neither can
they have any heirs but those of their own bodies. [249]
For as all collateral kindred consists in being derived from
the same common ancestor, and a bastard has no legal an-
cestors, he can have no collateral kindred, and, conse-
quently, can have no legal heirs but such as claim by a
lineal descent from himself. And, therefore, if a bastard
purchases land and dies seised thereof without issue and
intestate, the land shall escheat to the lord of the fee.
6. Aliens also are incapable of taking by descent, or in-
heriting, for they are not allowed to have any inheritable
blood in them. 2 Wherefore, if a man leaves no other rela-
tions but aliens, his land shall escheat to the lord.
1. This rule has been changed by 2. Changed by statute in this co\m-
statute in some of the states. See try. See local statutes and ante,
local statutes.
CHAP. XV.] OF TITLE BY ESCHEAT. 253
As aliens cannot inherit, so far they are on a level with bastards; but
as they are also disabled to hold by purchase, they are under still
greater disabilities. And as they can neither hold by purchase nor by
inheritance, it is almost superfluous to say that they can have no heirs,
since they can have nothing for an heir to inherit; but so it is expressly
holden, because they have not in them any inheritable blood.
And further, if an alien be made a denizen by the king's letters-patent
and then purchases lands (which the law allows such a one to do), his
son, born before his denization, shall not (by the common law) inherit
those lands, but a son born* afterwards may, even though his elder
brother be living; for the father, before denization, had no inheritable
blood to communicate to his eldest son, but by denization it acquires an
hereditary. quality which will be transmitted to his subsequent posterity.
Yet if he had been naturalized by act of parliament such eldest son
might then have inherited, for that cancels all defects, and is allowed
to have a retrospective energy, which simple denization has not.
It is now held for law, that the sons of an alien born here may inherit
to each other, the descent from one brother to another being an immediate
descent. [250]
7. By attainder, also, for treason or other felony, the
blood of the person attainted is so corrupted as to be ren-
dered no longer inheritable. 3 [251]
Great care must be taken to distinguish between forfeiture of lands
to the king and this species of escheat to the lord. The doctrine of es-
cheat upon attainder, taken singly, is this: that the blood of the tenant,
by the commission of any felony (under which denomination all treasons
were formerly comprised), is corrupted and stained, and the original
donation of the feud is thereby determined, it being always granted to
the vassal on the implied condition of dum bene se gesserit. [252] Upon
the thorough demonstration of which guilt, by legal attainder, the feodal
covenant and mutual bond of fealty are held to be broken, the estate in-
stantly falls back from the offender to the lord of the fee, and the inherit-
able quality of his blood is extinguished and blotted out forever. la
this situation the law of feodal escheat was brought into England at the
Conquest, and in general superadded to the ancient law of forfeiture.
In consequence of which corruption and extinction of hereditary blood,
the land of all felons would immediately revest in the lord, but that
the superior law of forfeiture intervenes, and intercepts it in its passage:
in case of treason, forever; in case of other felony, for only a year and
a day; after which time it goes to the lord in a regular course of escheat,
3. Not law in the United States.
U. S. Const., art. 1, sec. 10; Cooley,
Const. Lim. (7th Ed.), 36, 368.
254 OF TITLE BY ESCHEAT. . [BOOK II.
as it would have done to the heir of the felon in case the feodal tenures
had never been introduced.
Hitherto we have only spoken of estates vested in the offender at the
time of his offence or attainder. [253] And here the law of forfeiture
stops, but the law of escheat pursues the matter still farther. For the
blood of the tenant being utterly corrupted and extinguished; it follows
not only that all that he now has shall escheat from him, but also that
he shall be incapable of inheriting anything for the future.
There is yet a further consequence of the corruption and extinction
of hereditary blood, which is this: that the person attainted shall not
only be incapable himself of inheriting, or transmitting his own property
by heirship, but shall also obstruct the descent of lands or tenements
to his posterity in all cases where they are obliged to derive .their title
through him from any remoter ancestor. [254]
This corruption of blood cannot be absolutely removed but Ly au-
thority of parliament. The king may excuse the public punishment of an
offender, but cannot abolish the private right which has accrued or may
accrue to individuals as a consequence of the criminal's attainder. He
may remit a forfeiture, in which the interest of the crown is alone con-
cerned, but he cannot wipe away the corruption of blood; for therein a
third person hath an interest, the lord who claims by escheat. If, there-
fore, a man hath a son and is attainted and afterwards pardoned by the
king, this son can never inherit to his father or father's ancestors, be-
cause his paternal blood, being once thoroughly corrupted by his father's
attainder, must continue so. But if the son had been born after the
pardon, he might inherit, because by the pardon the father is made a
new man, and may convey new inheritable blood to his after-born
children.
Herein there is however a difference between aliens and persons at-
tainted. Of aliens who could never by any possibility be heirs, the law
takes no notice, and therefore we have seen that an alien elder brother
shall not impede the descent to a natural-born younger brother. [255]
But in attainders it is otherwise; for if a man hath issue a son, and is
attainted and afterwards pardoned, and then hath issue a second son
and dies, here the corruption of blood is not removed from the eldest,
and therefore he cannot be heir; neither can the younger be heir, for he
hath an elder brother living of whom the law takes notice, as he once
had a possibility of being heir, and therefore the younger brother shall
not inherit, but the land shall escheat to the lord; though had the elder
died without issue in the life of the father, the younger son born after
the pardon might well have inherited, for he hath no corruption of
blood. So if a man hath issue two sons, and the elder in the lifetime
of the father hath issue, and then is attainted and executed, and after-
wards the father dies, the lands of the father shall not descend to the
younger son, for the issue of the elder which had once a possibility to
inherit shall impede the descent to the younger, and the land shall es-
cheat to the lord.
CHAP. XV.] OF TITLE BY ESCHEAT. 255
There is one singular instance in which lands held in
fee-simple are not liable to escheat to the lord, even when
their owner is no more, and hath left no heirs to inherit
them. And this is the case of a corporation, for if that
comes by any accident to be dissolved, the donor or his
heirs shall have the land again in reversion, and not the
lord by escheat, which is perhaps the only instance where
a reversion can be expectant on a grant in fee-simple abso-
lute. But the law, we are told, doth tacitly annex a con-
dition to every such gift or grant, that if the corporation
be dissolved the donor or grantor shall re-enter, for the
cause of the gift or grant faileth. 4 [257]
4. 2 Kent Com. 307; Co. Litt., 13b; corporation holds the legal title to its
Clark on Corp. (2d Ed.), 247. But property in equity merely for the
as respects private business corpora- benefit of the stockholders and cred-
tions, this is not the rule. A private itors. Clark on Corp. (2d Ed.), 248.
256 OF TITLE BY OCCUPANCY*. [BOOK II.
CHAPTER XVI.
II. OF TITLE BY OCCUPANCY.
Occupancy is the taking possession of those things which
before belonged to nobody. This, as we have seen, is the
true ground and foundation of all property, or of holding
those things in severalty which, by the law of nature un-
qualified by that of society, were common to all mankind.
[258]
This right of occupancy, so far as it concerns real prop-
erty (for of personal chattels I am not in this place to
speak), hath been confined by the laws of England within
a very narrow compass, and was extended only to a single
instance: namely, where a man was tenant pur auter vie, 1
or had an estate granted to himself only (without mention-
ing his heirs) for the life of another man, and died during
the life of cestuy que vie, or him by whose life it was holden.
In this case he that could first enter on the land might
lawfully retain the possession, so long as cestuy que vie
lived by right of occupancy. It did not revert to the
grantor, though it formerly was supposed so to do, for he
had parted with all his interest so long as cestuy que vie
lived; it did not escheat to the lord of the fee, for all es-
cheats must be of the absolute entire fee, and not of any
particular estate carved out of it, much less of so minute a
remnant as this; it did not belong to the grantee, for he
was dead ; it did not descend to his heirs, for there were no
words of inheritance in the grant, nor could it vest in his
executors, for no executors could succeed to a freehold.
[259] Belonging, therefore, to nobody, like the haereditas
jacens 2 of the Romans, the law left it open to be seised and
appropriated by the first person that could enter upon it
during the life of cestuy que vie under the name of an occu-
pant. But there was no right of occupancy allowed where
1. For the life of another.
2. An inheritance that has failed
or fallen.
CHAP. XVL] OF TITLE BY OCCUPANCY. 257
the king had the reversion of the lands, for the reversioner
liath an equal right with any other man to enter upon the
vacant possession, and where the king's title and a subject's
concur, the king's shall be always preferred. Against the
king, therefore, there could be no prior occupant, because
nullum t em pus occurrit regi. s And even in the case of a
subject, had the estate pur auter vie been granted to a man
and his heirs during the life of cestuy que vie, there the
heir might and still may enter and hold possession, and is
called in law a special occupant, as having a special exclu-
sive right, by the terms of the original grant, to enter upon
and occupy this haereditas jacens during the residue of the
estate granted.
But the title of common occupancy is now reduced almost
to -nothing by two statutes : the one 29 Car. II, c. 3, which
enacts (according to the ancient rule of law) that where there
is no special occupant in whom the estate may vest, the ten-
ant pur auter vie may devise it by will, or it shall go to the
executors or administrators, and be assets in their hand for
payment of debts ; the other that of 14 Geo. II. c. 20, which
enacts that the surplus of such estate pur auter vie, after
payment of debts, shall go in a course of distribution like
a chattel interest. [260] By these two statutes the title of
common occupancy is utterly extinct and abolished; though
that of special occupancy by the heir at law continues to
this day, 4 such heir being held to succeed to the ancestor's
estate, not by descent, for then he must take an estate of
inheritance, but as an occupant specially marked out and
appointed by the original grant. But as before the statutes
there could no common occupancy be had of incorporeal
hereditaments, as of rents, tithes, advowsons, commons, or
the like (because with respect to them there could be no
actual entry made or corporal seisin had, and therefore by
the death of the grantee pur auter vie a grant of such heredi-
taments was entirely determined), so now, I apprehend, not-
withstanding these statutes, such grant would be deter-
3. Xo time bars the king.
4. See Rice's Modern Law of Real
Prop., 136-138, and local statutea.
17
258 OF TITLE BY OCCUPANCY. [BooK II.
mined likewise, and the hereditaments would not be devisable,
nor vest in the executors, nor go in a course of distribution.
In some cases where the laws of other nations give a
right by occupancy, as in lands newly created by the rising
of an island in the sea or in a river, or by the alluvion or
dereliction of the waters, in these instances the law of
England assigns them an immediate owner. [261] For
Bracton tells us that if an island arise in the middle of a
river, 5 it belongs in common to those who have lands on
each side thereof; but if it be nearer to one bank than the
other, it belongs only to him who is proprietor of the nearest
shore, which is agreeable to and probably copied from the
civil law. However, in case a new island rise in the sea,
though the civil law gives it to the first occupant, yet ours
gives it to the king. 6 And as to lands gained from the sea,
either by alluvion, by the washing up of sand and earth,
so as in time to make terra firma, or by dereliction, as when
the sea shrinks back below the usual watermark, in these
cases the law is held to be that if this gain 'be by little and
little, by small and imperceptible degrees, it shall go to the
owner of the land adjoining. [262] For de minimis non
curat lea:. 1 And besides, these owners being often losers by
the breaking in of the sea, or at charges to keep it out, this
possible gain is therefore a reciprocal consideration for
such possible charge or loss. But if the alluvion or derelic-
tion be sudden and considerable, in this case it belongs to
the king, for as the king is lord of the sea, and so owner of
the soil while it is covered with water, it is but reasonable
he should have the soil when the water has left it dry. In
the same manner, if a river running between two lordships
by degrees gains upon the one, and thereby leaves the other
5. If the river be non-navigable in covering and taking possession of it.
the common law sense, the adjacent As to the rights of riparian owners
proprietors would not be tenants in in general, see Cooley on Torts (Stu-
common, but in severalty of the re- dents' Ed.), 370; Black's Pomeroy on
speotive portions on each side of the Rip. Rights (1893) ; Gould on Waters
middle thread of the stream. (1900) ; Farnham on Waters (1904),
6. An island newly rising in the 3 vols.
sea or one hitherto undiscovered, 7. The law cares not for trifles,
would belong to the nation first dis- Broom's Legal Maxims, *134.
CHAP. XVI.] OF TITLE BY OCCUPANCY. 259
dry, the owner who loses his ground thus imperceptibly has
no remedy; but if the course of the river be changed by a
sudden and violent flood, or other hasty means, and thereby
a man loses his ground, it is said that he shall have what
the river has left in any other place as a recompense for
this sudden loss.
260 OF TITLE BY PRESCRIPTION". [BOOK II,
CHAPTER XVII.
III. OF TITLE BY PRESCRIPTION".
A third method of acquiring real property by purchase
is that by prescription as when a man can show no other
title to what he claims, than that he, and those under whom
he claims, have immemorially used to enjoy it. 1 [263]
First, the distinction between custom and prescription
is this: that custom is properly a local usage, and not an-
nexed to a person, such as a custom in the manor of Dale
that lands shall descend to the youngest son; prescription
is merely a personal usage, as that Sempronius and his an-
cestors, or those whose estate he hath, have used time out
of mind to have such an advantage or privilege.
All' prescription must be either in a man and his ancestors
or in a man and those whose estate he hath, which last is
called prescribing in a que estate. [264] And formerly a
man might, by the common law, have prescribed for a right
which has been enjoyed by his ancestors or predecessors at
any distance of time, though his or their enjoyment of it
had been suspended for an indefinite series of years. But
by the statute of limitations, 32 Hen. VIII. c. 2, it is enacted
that no person shall make any prescription by the seisin or
possession of his ancestor or predecessor unless such seisin
or possession hath been within threescore years next before
such prescription made. 2
Secondly, as to the several species of things which may
or may not be prescribed for, we may, in the first place,
observe that nothing but incorporeal hereditaments can be
claimed by prescription, as a right of way, a common,
&c., but that no prescription can give a title to lands and
1. '' The possession must have been 2. Twenty years is the time usually
possessio longa, continua, et pacifica, required and in some states even a
nee sit legitim a interrupt ; long con- lesa period is necessary. Hopkins,
tinned, peaceable and without lawful Real Prop.; 2 Bouvier Law Diet. 371.
interruption." 2 Bouvier Law Diet. See the local statutes.
371: Bract., 52, 222, 226; Co. Litt.,
113b.
CHAP. XVII. ] OF TITLE BY PRESCRIPTION. 261
other corporeal substances of which more certain evidence
may be had. 3 2. A prescription must always be laid in him
that is tenant of the fee. [265] A tenant for life, for years,
at will, or a copyholder cannot prescribe, by reason of the
imbecility of their estates. For, as prescription is usage
beyond time of memory, it is absurd that they should pre-
tend to prescribe for anything whose estates commenced
within the remembrance of man. And therefore the copy-
holder must prescribe under cover of his lord's estate, and
the tenant for life under cover of the tenant in fee-simple.
3. A prescription cannot be for a thing which cannot be
raised by grant. For the law allows prescription only in
supply of the loss of a grant, and therefore every prescrip-
tion presupposes a grant to have existed. Thus the lord
of a manor cannot prescribe to raise a tax or toll upon
strangers, for, as such claim could never have been good
by any grant, it shall not be good by prescription. 4. A
fourth rule is, that what is to arise by matter of record
cannot be prescribed for, but must be claimed by grant,
entered on record; such as, for instance, the royal franchises
of deodands, felons' goods, and the like. 5. Among things
incorporeal which may be claimed by prescription, a dis-
tinction must be made with regard to the manner of pre-
scribing: that is, whether a man shall prescribe in a que
estate, or in himself and his ancestors. For if a man pre-
scribes in a que estate (that is, in himself and those whose
estate he holds), nothing is claimable by this prescription
but such things as are incident, appendant, or appurtenant
to lands. For it would be absurd to claim anything as the
consequence or appendix of an estate, with which the thing
claimed has no connection; but if he prescribes in himself
and his ancestors, he may prescribe for anything whatso-
ever that lies in grant, not only things that are appurtenant,
but also such as may be in gross. [266] Thus, a man may
3. By analog}^ to prescription stat- ally fixed at twenty years, though a
utes of limitation exist in all the less period suffices in some states,
states, by which title to corporeal See, generally, Wood on Limitation
hereditaments, as well as incorporeal, of Actions (1907) ; Buswell on Limi-
may be acquired by adverse possession tation of Actions (1889); 3 Wash,
for the statutory period which is usu- Real Prop. (6th Ed.) (1902).
262 OF TITLE BY PRESCRIPTION. [BOOK II.
prescribe in a que estate for a common appurtenant to a
manor, but, if he would prescribe for a common in gross,
he must prescribe in himself and his ancestors. 6. Lastly,
we may observe that estates gained by prescription are not,
of course, descendible to the heirs general, like other pur-
chased estates, but are an exception to the rule. For, prop-
erly speaking, the prescription is rather to be considered as
an evidence of a former acquisition than as an acquisition de
novo: and therefore, if a man prescribes for a right of way
in himself and his ancestors, it will descend only to the
blood of that line of ancestors in whom he so prescribes,
the prescription in this case being indeed a species of
descent. But if he prescribes for it in a que estate, it will
follow the nature of that estate in which the prescription
is laid, and be inheritable in the same manner, whether that
were acquired by descent or purchase; for every accessory
f olloweth the nature of its principal.
CHAP. XVIII.] OF TITLE BY FORFEITURE. 263
CHAPTER XVIII.
IV. OF TITLE BY FORFEITURE.
Forfeiture is a 'punishment annexed loy law to some
illegal act or negligence, in the owner of lands, tenements,
or hereditaments, whereby he loses all his interest therein,
and they go to the party injured, as a recompense for the
wrong which either he alone, or the public together with
himself, hath sustained. [2671
Lands, tenements, and hereditaments may be forfeited
in various degrees and by various means: 1. By crimes
and misdemeanors. 2. By alienation contrary to law. 3.
By non-representation to a benefice, when the forfeiture is
denominated a lapse. 4. By simony. 5. By non-perform-
ance of condition. 6. By waste. 7. By breach of copyhold
customs. 8. By bankruptcy.
I. The foundation and justice of forfeitures for crimes and misdemean-
ors, and the several degrees of those forfeitures proportioned to the
several offences, will be more properly considered in the fourth book of
these Commentaries. 1 At present I shall only observe that the offences
which induce a forfeiture of lands and tenements to the crown are prin-
cipally the following six: 1. Treason. 2. Felony. 8. Misprison of trea-
son. 4. Praemunire. 5. Drawing a weapon on a judge, or striking any
one in the presence of the king's principal courts of justice. [268] 6.
Popish recusancy, or non-observance of certain laws enacted in restraint
of papists.
II. Lands and tenements may be forfeited by alienation,
or conveying them to another contrary to law. This is
either alienation in mortmain, alienation to an alien, or
alienation by particular tenants; in the two former of which
cases the forefeiture arises from the incapacity of the
alienee to take, in the latter from the incapacity of the
alienor to grant.
1. Alienation in mortmain, in mortua manu, is an aliena-
1. See U. S. Const., art. 3, sec. 3, tions by which such forfeitures have
cl. 2; Cooley's Const. Lim. (7th Ed.), been abolished or greatly mitigated.
3G8, and the several state constitu- See, also, 33 & 34 Viet., ch. 23.
2U4 OF TITLE BY FORFEITURE. [BooK IT.
tion of lands or tenements to any corporation, sole or aggre-
gate, ecclesiastical or temporal. 2 But these purchases hav-
ing been chiefly made by religious houses, in consequence
whereof the lands became perpetually inherent in one dead
hand, this hath occasioned the general appellation of mort-
main to be applied to such alienations, and the religious
houses themselves to be principally considered in forming
the statutes of mortmain.
By the common law any man might dispose of his lands
to any other private man at his own discretion, especially
when the feodal restraints of alienation were worn away.
Yet in consequence of these it was always, and is still,.
necessary for corporations to have a license in mortmain
from the crown, to enable them to purchase lands; for as
the king is the ultimate lord of every fee, he ought not,
unless by his own consent, to lose his privilege of escheats
and other feodal profits, by the vesting of lands in tenants
that can never be attainted or die. [269] And such licenses
of mortmain seem to have been necessary among the Saxons
above sixty years before the Norman Conquest. But be-
sides this general license from the king, as lord paramount
of the kingdom, it was also requisite, whenever there was
a mesne or intermediate lord between the king and the
alienor, to obtain his license also (upon the same feodal
principles) for the alienation of the specific land. And if
no such license was obtained, the king or other lord might
respectively enter on the land so aliened in mortmain as a
forfeiture.
Yet such were the influence and ingenuity of the clergy that (notwith-
standing this fundamental principle) we find that the largest and most
considerable dotations of religious houses happened within less than
two centuries after the Conquest. And (when a license could not be ob-
tained) their contrivance seems to have been this: that, as the forfeiture
for such alienations accrued in the first place to the immediate lord of
the fee, the tenant who meant to alienate first conveyed his lands to
the religious house, and instantly took them back again to hold as tenant
to the monastery which kind of instantaneous seisin was probably held
not to occasion any forfeiture, and then by pretext of some other for-
2. Not adopted in the United States veyances to corporations without li-
except in Pennsylvania as to dedica- cense. See Hopkins, Real Prop., 389.
tions to superstitious uses and con-
CHAP. XVIIL] OF TITLE BY FORFEITURE. 265
feiture, surrender, or escheat, the society entered into those lands in
right of such their newly acquired signiory, as immediate lords of the
fee. Bnt when these dotations began to grow numerous, it was ob-
served that the feodal services ordained for the defence of the kingdom
were every day visibly withdrawn; that the circulation of landed property
from man to man began to stagnate; and that the lords were curtailed
of the fruits of their signiories, their escheats, wardships, reliefs, and
the like; and therefore, in order to prevent this, it was ordered by the
second of King Henry III.'s Great Charter, and afterwards by that
printed in our common statute book, that all such attempts should be
void, and the land forfeited to the lord of the fee. [270]
But, as this prohibition extended only to religious houses, bishops and
other sole corporations were not included therein; and the aggregate
ecclesiastical bodies, who, Sir Edward Coke observes, in this were to
be commended, that they ever had of their counsel the best learned men
that they could get, found many means to creep out of this statute,
hy buying in lands that were bona fide holden of themselves as lords of
the fee, and thereby evading the forfeiture; or by taking long leases for
years, which first introduced those extensive terms: for a thousand or
more years, which are now so frequent in conveyances. This produced
the statute de religiosis, 7 Edw. I., which provided that no person, religious
-or other whatsoever, should buy, or sell, or receive under pretence of a
gift, or term of years, or any other title whatsoever, nor should by any
art or ingenuity appropriate to himself any lands or tenements in mort-
main, upon pain that the immediate lord of the fee, or, on his default
for one year, the lords paramount, and, in default of all of them, the
king, might enter thereon as forfeiture.
This seemed to be a sufficient security against all alienations in mort-
main; but as these statutes extended only to gifts and conveyances be-
tween the parties, the religious houses now began to set up a fictitious
title to the land, which it was intended they should have, and to bring
an action to recover it against the tenant; who, by fraud and collusion,
made no defence, and thereby judgment was given for the religious house,
which then recovered the land by sentence of law upon a supposed prior
title. [271] And thus they had the honor of inventing those fictitious
adjudications of right, which are since become the great assurance of the
kingdom, under the name of common recoveries. But upon this the
statute of Westminster the second, 13 Edw. I. c. 32, enacted, that in such
cases a jury shell try the true right of the demandants or plaintiffs to
the land, and if the religious house or corporation be found to have it,
they shall still recover seisin; otherwise it shall be forfeited to the im-
mediate lord of the fee, or else to the next lord, and finally to the king,
upon the immediate or other lord's default. So careful, indeed, was this
provident prince to prevent any future evasions, that when the statute
of quia emptores, 3 18 Edw. I., abolished all subinfeudations, and gave
3. Because purchasers.
2GO OF TITLE BY FORFEITURE. [Boox II.
liberty for all men to alienate their lands to be holden of their next Im-
mediate lord, a proviso was inserted that this should not extend to au-
thorize any kind of alienation in mortmain. And when afterwards the
method of obtaining the king's license by writ of ad quod damnum < was
marked out by the statute 27 Edw. I. st. 2, it was further provided by
statute 43 Edw. I. st. 3, that no such license should be effectual without
the consent of the mesne or intermediate lords.
Yet still it was found difficult to set bounds to ecclesiastical ingenuity;
for when they were driven out of all their former holds, they devised a new
method of conveyance, by which the lands were granted, not to them-
selves directly, but to nominal feoffees to the use of the religious houses;
thus distinguishing between the iM>ssession and the use, and receiving
the actual profits, while the seisin of the land remained in the nominal
feoffee, who was held by the courts of equity, then under the direction
of the clergy, to be bound in conscience to account to his cestuy que use
for the rents and emoluments of the estate. [272] [See post, p. *328.J
And it is to these inventions that our practisers are indebted for the
introduction of uses and trusts, the foundation of modern conveyancing.
But, unfortunately for the inventors themselves, they did not long en-
joy the advantage of their new device; for the statute 15 Ric. II. c, 5
enacts that the lands which had been so purchased to uses should be
amortized by license from the crown, or else be sold to private persons;
and that, for the future, uses shall be subject to the statutes of mortmain,
and forfeitabje like the lands themselves. And whereas the statutes had
been eluded by purchasing large tracts of land, adjoining to churches,
and consecrating them by the name of churchyards, such subtile im-
agination is also declared to be within the compass of the statutes of
mortmain. And civil or lay corporations, as well as ecclesiastical, are
also declared to be within the mischief, and of course within the remedy,
provided by those salutary laws. And, lastly, as during the times of
popery lands were frequently given to superstitious uses, though not to
any corporate bodies, or were made liable in the hands of heirs and de-
visees to the charge of obits, chaunteries, and the like, which were
equally pernicious in a well-governed state as actual alienations^ in
mortmain; therefore, at the dawn of the Reformation, the statute 23
Hen. VIII, c. 10, declares that all future grants of lands for any of the
purposes aforesaid, if granted for any longer term than twenty years,
shall be void.
But during all this time it was in the power of tlie crown, by granting
a license of mortmain, to remit the forfeiture, so far as related to its
own rights, and to enable any spiritual or other corporation to purchase
and hold any lands or tenements in perpetuity; which prerogative is
declared and confirmed by the statute 18 Edw. III. st. 3, c. 3. But as
doubts were conceived, at the time of the Revolution, how far such li-
cense was valid, since the kings had no power to dispense with the
4. To what damage.
CHAP. XVIII.] OF TITLE BY FORFEITURE. 267
statutes of mortmain by a clause of non obstante, which was the usual
course, though it seems to have been unnecessary; an.d as, by the
gradual declension of mesne signiories through the long operation of the
statute of quia emptores, the rights of intermediate lords were reduced
to a very small compass; it was therefore provided by the statute 7 & 8
W. III. c. 37, that the crown for the future, at its own discretion, may
grant licenses to aliene or take in mortmain, of whomsoever the tene-
ments may be holden. After the dissolution of monasteries under Henry
VIII., the statutes of mortmain were suspended for twenty years by
the statute 1 & 2 P. & M. c. 8, and during that time any lands or tene-
ments were allowed to be granted to any spiritual corporation without
any license whatsoever. And long afterwards, for a much better pur-
pose, the augmentation of poor living, it was enacted by the statute 17
Car. II. c. 3, that appropriators may annex the great tithes to the vicar-
ages, and that all benefices under 100Z. per annum may be augmented by
the purchase of lands, without license of mortmain in either case; and
the like provision hath been since made in favor of the governors of Queen
Anne's bounty. It hath also been held that the statute 23 Hen. VIII.,
before mentioned, did not extend to anything but superstitious uses;
and that therefore a man may give lands for the maintenance of a school,
an hospital, or any other charitable uses. But as it was apprehended
from recent experience that persons on their death-beds might make
large and improvident dispositions even for these good purposes, and
defeat the political ends of the statutes of mortmain, it is therefore
enacted by the statute 9 Geo. II. c. 86, that no lands or tenements, or
money to be laid out thereon, shall be given for, or charged with, any
charitable uses whatsoever, unless by deed indented, executed in the
presence of two witnesses twelve calendar months before the death of
the donor, and enrolled in the Court of Chancery within six months after
its execution, except stocks in the public funds, which may be transferred
within six months previous to the donor's death, and unless such gift
be made to take effect immediately, and be without power of revocation;
and that all other gifts shall be void. [274] The two universities [of
Oxford and Cambridge], their colleges, and the scholars upon the foun-
dation of the colleges of Eton, Winchester, and Westminster, are ex-
cepted out of this act.
2. Secondly, alienation to an alien is also a cause of for-
feiture to the crown of the land so alienated; not only on
account of his incapacity to hold them, which occasions
him to be passed by in descents of land, but likewise on
account of his presumption in attempting, by an apt of his
own, to acquire any real property, as was observed in the
preceding book. 5
5. " In many states the disabilities in others they are removed only as
of alienage have been recovered, while to resident aliens." Hopkins, Real
2G8 OF TITLE BY FORFEITURE. [Booic II.
3. Lastly, alienations by particular tenants, when they
are greater than the law entitles them to make, and devest
the remainder or reversion, are also forfeitures to him
whose right is attacked thereby.
As, if tenant for his own life alienes by feoffment or fine for the life
of another, or in tail or in fee, these being estates which either must or
may last longer than his OWQ, the creating them is not only beyond his
power and inconsistent with the nature of his interest, but is also a for-
feiture of his own particular estate to him in remainder or reversion.
For which there seem to be two reasons. First, because such aliena-
tion amounts to a renunciation of the feodal connection and dependence.
The other reason is, because the particular tenant, by granting a larger
estate than his own, has by his own act determined and put an entire
end to his own original interest, and on such determination the next
taker is entitled to enter regularly, as in his remainder or reversion.
[275] The same law which is thus laid down with regard to tenants
for life, holds also with respect to all tenants of the mere freehold or of
chattel interests; but if tenant in tail alienes in fee, this is no immediate
forftiture to the remainder-man, but a mere discontinuance, as it is called,
of the estate-tail, which the issue may afterwards avoid by due course
of law. But in case of such forfeitures by particular tenants, all legal
estates by them before created, as if tenant for twenty years grants a
lease for fifteen, and all charges by him lawfully made on the lands,
shall be good and available in law. Equivalent, both in its nature and
its consequences, to an illegal alienation by the particular tenant, is the
civil crime of disclaimer; as where a tenant, who holds of any lord,
neglects to render him the due services, and, upon an action brought
to recover them, disclaims to hold of his lord, which disclaimer of
tenure in any court of record is a forfeiture of the lands to the lord,
upon reasons most apparently feodal. And so likewise, if in any court
of record the particular tenant does any act which amounts to a virtual
disclamer: if he claims any greater estate than was granted him at
the first infeodation, or takes upon himself those rights which belong
only to tenant of a superior class; if he affirms the reversion to be in a
stranger, by accepting his fine, attorning as his tenant, collusive plead-
ing, and the like, such behavior amounts to a forfeiture of his particular
estate. [276]
Est., 388. Such being the case the 6. By statute in this country it Is
doctrine of the text is not generally provided in many states that any con-
the law of this country. Any state veyance by a tenant shall convey only
laws are, of course, subject to modi- such interest as he may lawfully
fication or repeal by treatifs made convey and shall not work a forfeit-
by the United States with foreign na- ure.
tions. Hopkins, Real Est., 388; 1
Stim. Am. St. Law, 6013.
CHAP. XVIII. ] OF TITLE BY FORFEITURE.
269
III. Lapse is a species of forfeiture, whereby the right of presentation
to a church accrues to the ordinary by neglect of the patron to present,
to the metropolitan by neglect of the' ordinary, and to the king by neglect
of the metropolitan.
IV. By simony, the right of presentation to a living is forfeited, and
vested pro hoc vice in the crown. [278] Simony is the corrupt presenta-
tion of any one to an ecclesiastical benefice for money, gift, or reward.
V. The next kind of forfeitures are those by breach or
non-performance of a condition annexed to the estate, either
expressly by deed at its original creation, or impliedly by
law from a principle of natural reason. [284] Both which
we considered at large in a former chapter.
VI. Waste, vastum, is a spoil or destruction in houses,
gardens, trees, or other corporeal hereditaments, to the
disherison of him that hath the remainder or reversion in
fee-simple or fee-tail. 7
7. See ante, *122. note. See, also,
Waste defined substantially as in the
text in McCulloch v. Irvine, 13 Penn.
St. 440; Ewell on Fixt. (2d Ed.), *81,
note.
Cases respecting fixtures, which is
relatively a modern word, are to be
found in the old books, as a rule, un-
der the head "Waste." The term
" fixtures " has been used in many
differing and often contradictory sig-
nifications. See Ewell on Fixtures (2d
Ed. ) , 1-7. We use the term "to desig-
nate things originally chattel in their
nature, which are so fixed or annexed
either actually or constructively to
the realty, as to have lost either
wholly or to some extent and for
pome purposes while so annexed, their
character as movable chaatels." Id., 6.
The general rule of the common law
was that whatever is fixed to the
freehold becomes a part of the free-
hold and subject to the same rules of
law as the soil itself; and it is to the
relaxation of this rule to meet mod-
ern conditions that the law of fixtures
owes its existence. It will be imprac-
ticable here to do more than show the
most general modifications and limi-
tations of this old common law rule:
(1) In the case of annexations to
the soil made by strangers, i. e., per-
sons holding no contractual relations
with the owner of the soil, the old
rule is still applied with considerable
right. Ewell on Fixt., 54, 55 and
notes, where the cases are exhaustively
collected up to February, 1905.
(2) As between landlord and ten-
ant, especially in the case of trade
fixtures, the rule has been so relaxed
as to enable the tenant to remove
during the term almost any and every
annexation not intended as a perma-
nent improvement and that can be
removed without permanent injury to
the reversion. Id., ch. 4. The cases
are very numerous on this proposition
and will be found fully collected in
the notes.
(3) As between tenants for life or
in tail and their personal representa-
tives and the remainderman or rever-
270 OF TITLE BY FORFEITURE. [BOOK IT.
Waste is either voluntary, which is a crime of commis-
sion, as by pulling down a hquse, or it is permissive, which
is a matter of omission only, as by suffering it to fall for
want of necessary reparations. Whatever does a lasting
damage to the freehold or inheritance is waste. There-
fore, removing wainscot, floors, or other things once fixed
to the freehold of a house is waste. If a house be destroyed
by tempest, lightning, or the like, which is the act of Provi-
dence, it is no waste; but otherwise, if the house be burnt
by the carelessness or negligence of the lessee, though now
by the statute 6 Anne, c. 31, no action will lie against a
tenant for an accident of this kind. Waste may also be
committed in ponds, dove-houses, warrens, and the like, by
so reducing the number of the creatures therein that there
will not be sufficient for the reversioner when he comes to
the inheritance. Timber also is part of the inheritance.
Such are oak, ash, and elm in all places; and in some par-
ticular countries, by local custom, where other trees are
generally used for building, they are for that reason con-
sidered as timber, and to cut down such trees, or top
them, or do any other act whereby the timber may decay,
is waste. But underwood the tenant may cut down at
any seasonable time that he pleases, and may take suf-
ficient estovers of common right for house-bote and cart-
bote, unless restrained (which is usual) by particular cov-
enants or exceptions. [282] The conversion of land
from one species to another is waste. To convert wood,
meadow, or pasture into arable, to turn arable, meadow, or
pasture into woodland, or to turn arable or woodland into
meadow or pasture, are all of them waste. For, as Sir
sioners, the cases are relatively few applied with rigor as between exec-
in number and the right of removal utor and heir and uncomplicated cases
is not so liberally extended as in the of vendor and vendee, etc. Id., chs.
case of landlord and tenant; still it 7,9. The eases of emblement on grow-
is more liberal here than in the rela- ing crops, game, fish, etc., etc., are
tion of executor and heir and vendor elsewhere considered in this volume.
or mortgagor and vendee or mort- To the best of our ability every de-
gagee, where it is (in the absence of cided case upon the general subject
any reservation in the conveyance) Fixtures, up to the year 1905, has been
applied with rigor. Id., chs. 7, 9. cited in our work on the subject, to
(4) As already stated the rule is which we must refer for details.
CHAP. XVIII.] OF TITLE BY FORFEITURE. 271
Edward Coke observes, it not only changes the course of
husbandry, but the evidence of the estate, when such a close,
which is conveyed and described as pasture, is found to be
arable, and e converso. And the same rule is observed, for
the same reason, with regard to converting one species of
edifice into another, even though it is improved in its value.
To open the land to search for mines of metal, coal, &c., is
waste, for that is a detriment to the inheritance; but if the
pits or mines were open before, it is no waste for the tenant
to continue digging them for his own use; for it is now
become the mere annual profit of the land. These three
are the general heads of waste, viz. in houses, in timber, and
in land. Though, as w T as before said, whatever else tends
to the destruction, or depreciating the value of the inherit-
ance, is considered by the law as waste. .
Next, who are liable to be punshed for committing waste.
And by the feodal law, feuds being originally granted for
life only, we find that the rule was general for all vassals
or feudatories : " si vasallus feudum dissipaverit, aut insigni
detrimente deterius fecerit, privabitur." 8 But in our an-
cient common law the rule was by no means so large, for not
only he that was seized of an estate of inheritance might do
as he pleased with it, but also waste was not punishable in
any tenant save only in three persons, guardian in chiv-
alry, tenant in dower, and tenant by the curtesy, and not
in tenant for life or years. [283] And the reason of the di-
versity was, that the estate of the three former was cre-
ated by the act of the law itself, which therefore gave a
remedy against them; but tenant for life, or for years,
came in by the demise and lease of the owner of the fee, and
therefore he might have provided against the committing
of waste by his lessee, and if he did not it was his own
default. But, in favor of the owners of the inheritance,
the statutes of Marlbridge, 52 Hen. III. c. 23, and of
Gloucester, 6 Edw. I. c. 5, provided that the writ of waste
shall not only lie against tenants by the law of England (or
curtesy), and those in dower, but against any farmer or other
8. If a vassal shall have wasted the marked damage, he shall be deprived
fee, or diminished its value by any of it.
272 OF TITLE BY FORFEITURE. [BOOK IT.
that holds in any manner for life or years. So that, for
above five hundred years past, all tenants merely for life
or for any less estate, have been punishable or liable to be
impeached for waste, both voluntary and permissive, unless
their leases be made, as sometimes they are, without im-
peachment of waste, absque impetitione vasti; that is, with
a provision or protection that no man shall ini/it'lm , or sue
him for waste committed. But tenant in tail after pos-
sibility of issue extinct is not impeachable for waste, be-
cause his estate was at its creation an estate of inheritance,
and so not within the statutes. Neither does an action of
waste lie for the debtor against tenant by statute, recogni-
zance, or elegitf because against them the debtor may set off
the damages in account; but it seems reasonable that it
should lie for the reversioncr, expectant on the determination
of the debtor's own estate, or of these estates derived from
the debtor.
The punishment for waste committed was, by common
law and the statute of Marlbridge, only single damages,
except in the case of a guardian, who also forfeited his
wardship by the provisions of the Great Charter; but the
statute of Gloucester directs that the other four species of
tenants shall lose and forfeit the place wherein the waste
is committed, and also treble damages to him that hath the
inheritance. The expression of the statute is, " he shall
forfeit the thing which he hath wasted," and it hath been
determined that under these words the place is also included.
And if waste be done sparsim, or here and there, all over
a wood, the whole wood shall be recovered, or if in several
rooms of a house, the whole house shall be forfeited ; because
it is impracticable for the reversioner to enjoy only the iden-
tical places Avasted when lying interspersed with the other.
[284] But if waste be done only in one end of a wood (or
perhaps in one room of a house, if that can be conveniently
separated from the rest), that part only is the locus vastatus,
or thing wasted, and that only shall be forfeited to the
reversioner.
CHAP. XVIII.] OF TITLE BY FORFEITURE. 273
VII. A seventh species of forfeiture is that of copyhold estates, by
breach of the customs of the manor. Copyhold estates are not only liable
to the same forfeitures as those which are held in socage, for treason,
felony, alienation, and waste, whereupon the lord may seize them with-
out any presentment by the homage, but also to peculiar forfeitures
annexed to this species of tenure, which are incurred by the breach of
either the general customs of all copyholds, or the peculiar local cus-
toms of certain particular manors.
VIII. The eighth and last method whereby lands and
tenements may become forfeited is that of bankruptcy, 9
or the act of becoming a bankrupt; which unfortunate per-
son may, from the several descriptions given of him in our
statute law, be thus defined: a trader who secretes himself,
or does certain other acts, tending to defraud his creditors.
[285]
9. Ste post, chapter 31.
18
274 OF TITLE BY ALIENATION. [BOOK II.
CHAPTER XIX.
V. OF TITLE BY ALIENATION".
The most usual and universal method of acquiring a
title to real estates is that of alienation, conveyance, or pur-
chase in its limited sense; under which may be comprised
any method wherein estates are voluntarily resigned by
one man and accepted by another, whether that be effected
by sale, gift, marriage, settlement, devise, or other trans-
mission of property by the mutual consent of the parties.
[287]
This means of taking estates by alienation is not of equal antiquity in
the law of England with that of taking them by descent. For by the
feodal law, a pure and genuine feud could not be transferred from one
feudatory to another without the consent of the lord. Neither could the
feudatory then subject the land to his debts, for if he might, the feodal
restraint of alienation would have been easily frustrated and evaded.
And as he could not aliene it in his lifetime, so neither could he by will
defeat the succession by devising his feud to another family, nor even
alter the course of it by imposing particular limitations, or prescribing
an unusual path of descent. Nor, in short, could he aliene the estate,
even with the consent of the lord, unless he had also obtained the con-
sent of his own next apparent or presumptive heir. And, on the other
hand, as the feodal obligation was looked upon to be reciprocal, the
lord could not aliene or transfer his signiory without the consent of
his vassal. [288] This consent of the vassal was expressed by what was
called attorning, or professing to become the tenant of the new lord,
which doctrine of attornment was afterwards extended to all lessees for
life or years. For if one bought an estate with any lease for life or
years standing out thereon, and the lessee or tenant refused to attorn
to the purchaser and to become his tenant, the grant or contract was
in most cases void, or at least incomplete, which was also an additional
clog upon alienations.
But by degrees this feodal severity is worn off, and experience hath
shown that property best answers the purposes of civil life, especially
in commercial countries, when its transfer and circulation are totally
free and unrestrained. The road was cleared in the first place by a law
of King Henry I., which allowed a man to sell and dispose of lands
which he himself had purchased; but he was not allowed to sell the whole
of his own acquirements so as totally to disinherit his children, any
more than he was at liberty to aliene his paternal estate. [289] After-
wards a man seems to have been at liberty to part with all his own
requisitions, if he had previously purchased to him and his assigns by
CHAP. XIX.] OF TITLE BY ALIENATION. 275
name; but if his assigns were not specified in the purchase deed, he was
not empowered to aliene, and also he might part with one-fourth of the
inheritance of his ancestors without the consent of his heir. By the
Great Charter of Henry III., no subinfeudation was permitted of part of
the land unless sufficient was left to answer the services due to the su-
perior lord, which sufficiency was probably interpreted to be one-half
or moiety of the land.
But these restrictions were in general removed by the
statute of quia emptores, 1 whereby all persons, except the
king's tenants in capite, 2 were left at liberty to aliene all
or any part of their lands at their own discretion. And
even these tenants in capite were by the statute 1 Edw. III.
c. 12, permitted to aliene on paying a fine to the king. By
the temporary statutes 7 Hen. VII, c. 3 7 and 3 Hen. VIII.
c. 4, all persons attending the king in his wars were allowed
to aliene their lands without license, and were relieved from
other feodal burdens. And lastly, these very fines for aliena-
tions were, in all cases of freehold tenure, entirely abolished
by the statute 12 Car. II. c. 24. As to the power of charg-
ing lands with the debts of the owner, this was introduced
so early as stat, Westm. 2, which subjected a moiety of the
tenant's lands to executions for debts recovered by law, 3 as
the whole of them was likewise subjected to be pawned in a
statute merchant by the statute de mercatoribus* made
the same year, and in a statute staple by statute 27 Edw. III.
c. 9, and in other similar recognizances by statute 23 Hen.
VIII. c. 6. And now the whole of them is not only subject
to be pawned for the debts of the owner, but likewise to be
absolutely sold for the benefit of trade and commerce by the
several statutes of bankruptcy. [290] The restraint of
devising lands by will, except in some places by particular
custom, lasted longer, that not being totally removed till
the abolition of the military tenure. The doctrine of at-
tornments, 5 continued still later than any of the rest, and
became extremely troublesome, though many methods were
invented to evade them, till at last they were made no
1. Because purchasers. 5. This was the agreement of the
2. In chief. tenant to the grant of the seignory or
3. Considered later on. of a rent, or the agreement ot t'.ie
4. Concerning merchants. donee in tail or tenant for life or
276 OF TITLE BY ALIENATION'. [BOOK II.
longer necessary to complete the grant or conveyance, by
statute 4 & 5 Anne, c. 16, nor shall, by statute 11 Geo. II.
c. 19, the attornment of any tenant affect the possession of
any lands unless made with consent of the landlord, or to a
mortgagee after the mortgage is forfeited, or by direction of
a court of justice.
I. Who may aliene, and to whom, or, in other words,
who is capable of conveying, and who of purchasing. All
persons in possession are prima facie capable both of con-
veying and purchasing, unless the law has laid them under
any particular disabilities. But if a man has only in him
the right of either possession or property, he cannot convey
it to any other, lest pretended titles might be granted to
great men, 6 whereby justice might be trodden down and
the weak oppressed. Yet reversions and vested remain-
ders may be granted, because the possession of the particu-
lar tenant is the possession of him in reversion or remain-
der; -but contingencies and mere possibilities, though they
may be released or devised by will, or may pass to the heir
or executor, yet cannot (it hath been said) be assigned to a
stranger unless coupled with some present interest. 7
Persons attainted of treason, felony, and praemunire are incapable
of conveying, from the time of the offence committed, provided attainder
follows, for such conveyance by them may tend to defeat the king of his
forfeiture, or the lord of his escheat. [291] But they may purchase for
the benefit of the crown or the lord of the fee, though they are disabled
to hold: the lands so purchased, if after attainder, being subject to im-
mediate forfeiture; if before, to escheat as well as. forfeiture, according
to the nature of the crime. So also corporations, religious or others,
may purchase lands; yet, unless they have a license to hold in mort-
main, they cannot retain such purchase, but it shall be forfeited to the
lord of the fee. '
Idiots and persons of nonsane memory, infants and per-
sons under duress, are not totally disabled either to convey
or purchase, but sub modo only. For their conveyances
years to a grant of a reversion or a 6. Abolished in some states by stat-
retnaimler made to another. Co. Litt., ute and retained in otherw. Consult
309; Boiivier Law Diet. Attornment. the local statutes.
They are abolished in the United 7. See local statutes.
States. 4 Kent Com. 479.
CHAP. XIX.] OF TITLE BY ALIENATION. 277
and purchases are voidable, but not actually void. 8 The
king, indeed, on behalf of an idiot may avoid his grants or
other acts. But it hath been said that a non compos him-
self, though he be afterwards brought to a right mind, shall
not be permitted to allege his own insanity in order to
avoid such grant; for that no man shall be allowed to
stultify himself or plead his own disability. 9 Clearly the
next heir, or other person interested, may, after the death
of the idiot or non compos, take advantage of his incapacity
and avoid the grant. And so, too, if he purchases under
this disability, and does not afterwards upon recovering his
senses agree to the purchase, his heir may either waive or
accept the estate at his option. In like manner an infant
may waive such purchase or conveyance when he comes to
full age; or if he does not actually agree to it, his heirs may
waive it after him. Persons also who purchase or convey
under duress, may affirm or avoid such transaction when-
ever the, duress is ceased.
The case of a feme-covert is somewhat different. She
may purchase an estate without the consent of her husband,
and the conveyance is good during the coverture, till he
avoids it by some act declaring his dissent. [293] And
though he does nothing to avoid it, or even if he actually
consents, the fame-covert herself may, after the death of
her husband, waive or disagree to the same; nay, even her
heirs may waive it after her if she dies before her husband,
or if in her widowhood she does nothing to express her
consent or agreement. But the conveyance or other con-
8. See the leading case of Zouch v. all reported in Ewell's Lead. Cases
Parsons, 3 Burr," 1794; s. c., 1 W. (1st Ed.) , 760-794. (Cases collected in
Black, 575; Ewell's Lead. Cases, 3 the notes.)
et seq. and notes. See ante, notes. As to the effect of^drunkenness, S3e
As to duress, see Stepney v. Lloyd, Ewell's Lead. Cases (1st Ed.), 728-
Cro. Eliz., 647, and Watkins v. Baird, 759 and notes.
6 Mass. 506 (duress of imprison- Deaf and dumb persons are not
ment) ; Whitefield v. Longfellow, 13 deemed idiots. Brower v. Fisher, 4
Me. 146 (duress per minus, i. e., by John. Ch. 721; Ewell's Lead. Cases
threats); Astley v. Reynolds, 2 ( 1st Ed.), 721-727 and notes.
Strange, 915; Skeete v. Beale, 11 Ad. 9. No longer the law. See preced-
& Ell. 983, and Sasportas v. Jen- ing note,
ninga, 1 Bay. 470 (duress of goods) ;
278 OF TITLE BY ALIENATION. [BOOK II.
tract of a feme-covert (except by some matter of record)
is absolutely void and not merely voidable, and therefore
cannot be affirmed or made good by any subsequent agree-
ment. 1
The case of an alien born is also peculiar. For he may
purchase anything, but after purchase he can hold nothing
except a lease for years of a house for convenience of mer-
chandise, in case he be an alien friend; all other purchases
(when found by an inquest of office) being immediately
forfeited to the crown. 2
Papists, lastly, and persons professing the popish religion, and neglect-
ing to take the oath prescribed by statute 18 Geo. III. c. 60, within the
time limited for that purpose, are by statute 11 & 12 W. Ill, c. 4, dis-
abled to purchase any lands, rents, or hereditaments, and all estates
made to their use or in trust for them are void. [This disability is now
abolished by statute.]
II. Next, how may a man aliene or convey; which will
lead us to consider the several modes of conveyance.
The common assurances of the kingdom are of four kinds :
1. By matter in pais, or deed, which is an assurance trans-
acted between two or more private persons in pais in the
country, that is (according to the old common law) upon the
very spot to be transferred [294] ; 2. By matter of record;
or an assurance transacted only in the king's public courts
of record ; 3. By special custom obtaining in some particular
places, and relating only to some particular species of prop-
erty, which three are such as take effect during the life
of the party conveying or assuring. 4. The fourth takes
no effect till after his death, and that is by devise contained
in his last will and testament. We shall treat of each in
its order.
^ 1. This was the well settled rule of nois, the common law disabilities of
the common law and is still the rule married women have been entirely re-
where the law has not been changed moved by statutes, and in others they
by statute. Martin v. D welly, 6 have been partially removed or greatly
Wend. 9; Jackson v. Vanderheyden, modified. See the local statutes.
17 John 167; Swell's Lead. Cases (1st 2. This disability is quite generally
Ed.), 298, 310 and notes. abolished in the United States. See
In Borne states, however, as in Illi- ante, notes.
CJIAP. XX.] OF ALIENATION BY DEED. 279
CHAPTER XX.
OF ALIENATION BY DEED.
I. A deed is a writing sealed and delivered by the par-
ties. 1 [295] It is sometimes called a charter, carta, from
its materials; but most usually when applied to the transac-
tions of private subjects, it is called a deed, because it is
the most solemn and authentic act that a man can possibly
perform with relation to the disposal of his property, and
therefore a man shall always be esopped by his own deed,
or not permitted to aver or prove anything in contradiction
to what he has once so solemnly and deliberately avowed. 2
If a deed be made by more parties than one, there ought
to be regularly as many copies of it as there are parties,
and each should be cut or indented (formerly in acute
angles in star dentmm, like the teeth of a saw, but at present
in a waving line) on the top or side, to tally or correspond
with the other, which deed, so made, is called an indenture. 3
Formerly, when deeds were more concise than at present, it
was usual to write both parts on the same piece of parchment,
with some word or letters of the alphabet written between
them, through which- the parchment was cut, either in a
straight or indented line, in such a manner as to leave half
the word on one part and half on the other. Deeds thus
made were denominated syngrapha by the canonists, and
with us chirographa or handwritings, the word cirographum
1. Signing was formerly, Before the 3. An indenture now differs from
Statute of Frauds, unnecessary to the a deed-poll in that it purports to be
validity of a deed; but is now neces- executed between two or more parties
sary. and contains the word " indenture "
2. Hopkins, Real Prop., 453. at its beginning, whereas a deed-poll
Deeds of release and quit-claim purports to be executed by one party
work no estoppel on the grantor as only, the grantor. The cutting or
to subsequently acquired interests, indenting described by the author is
though they do as to rights existing no longer in use. Conveyances of
at the time of making the conveyance, real estate have been variously regu-
Hopkins Real Prop., 454. See, gener- lated by statutes in the several states,
ally, Bigelow on Estoppel, 6th Ed. which consult.
(3913).
280 OF ALIENATION BY DEED. [BooK IT.
or cyroyraphum being usually that which is divided in making
the indenture; and this custom is still preserved in making
out the indentures of a fine, whereof hereafter. [296] But
at length indenting only has come into use, without cutting
through any letters at all, and it seems at present to serve
for little other purpose than to give name to the species
of the deed. When the several parts of an indenture aro
interchangeably executed by the several parties, that part
or copy which is executed by the grantor is usually called
the original, and the rest are counterparts; though of lato
it is most frequent for all the parties to execute every part,
which renders them all originals. A deed made by ono
party only is not indented, but polled, or shaved quite even,
and therefore called a deed-poll, or a single deed. 4
II. Next, the requisites of a deed. The first of which is
that there be persons able to contract and be contracted
with for the purposes intended by the deed, and also a thing,
or subject-matter, to be contracted for, all which must bo
expressed by sufficient names. So as in every grant there
must be a grantor, a grantee, and a thing granted, in every
lease a lessor, a lessee, and a thing demised.
Secondly, the deed must be founded upon good and suffi-
cient consideration. Not upon an usurious contract, nor
upon fraud or collusion either to deceive purchasers bona
fide, or just and lawful creditors, any of which bad con-
siderations will vacate the deed and subject such persons as
put the same in ure, to forfeitures, and often to imprison-
ment. A deed, also, or other grant made without any con-
sideration is, as it were, of no effect, for it is construed to
inure or to be effectual only to the use of the grantor himself. 5
The consideration may be either a good or a valuable one.
A good consideration is such as that of blood or of natural
love and affection, when a man grants an estate to a near
relation, being founded on motives of generosity, prudence,
and natural duty. A valuable consideration is such as
money, marriage, or the like, which the law esteems an
4. See note, supra. void or voidable as to the grantor's
5. A voluntary deed is good as be- creditors.
t\v en the parties to it. It may be
CHAP. XX.] OF ALIENATION BY DEED. 281
equivalent given for the grant, and is therefore founded in
motives of justice. [297] Deeds made upon good considera-
tion only are considered as merely voluntary, and are fre-
quently set aside in favor of creditors and bona-fide pur-
chasers. 6
Thirdly, the deed must be written, or, I presume, printed,
for it may be in any character or any language, but it must
be upon paper or parchment. For if it be written on stone,
board, linen, leather, or the like, it is no deed. Wood or
stone may be more durable, and linen less liable to rasures,
but writing on paper or parchment unites in itself, more
perfectly than any other way, both those desirable qual-
ities; for there is nothing else so durable, and at the same
time so little liable to alteration, nothing so secure from
alteration that is at the same time so durable. It must also
have the regular stamps imposed on it by the several stat-
utes for the increase of the public revenue, else it cannot
be given in evidence. 7 Formerly many conveyances were
made by parol, or word of mouth only, without writing;
but this giving a handle to a variety of frauds, the statute
29 Car. II. c. 3, enacts that no lease-estate or interest in
lands, tenements, or hereditaments, made by livery of seisin
or by parol only (except leases not exceeding three years
from the making, and whereon the reserved rent is at least
two-thirds of the real value), shall be "looked upon as of
greater force than a lease or estate at will, nor shall any
assignment, grant, or surrender of any interest in any free-
hold hereditaments be valid, unless in both cases the same
6. The acknowledgment of a consid- 1-88 and notes. The statutes of 13
eration in the deed while it estops the Eliz., c. 5. designed to protect cred-
grantor from denying a consideration itors, and 27 Eliz., c. 4, to protect
for the purpose of avoiding the deed, bona fide purchasers, are construed in
does not conclude him as to the quan- Twyne's Case, and the American au-
tum or amount thereof, which may, thorities are collected in the notes,
when relevant, be proved by any com- Similar statutes have been enacted in
petent evidence. Hopkins, Real Prop., most, if not all, of the states. See
410, 427. the local statutes and generally Bige-
As to the effect of conveyances in low on Fraud (1890), 2 vols.
fraud of creditors and bona fide pur- 7. There is at present no stamp
chasers, see Twyne's Case, 3 Coke. 80; law in the United States, though one
1 Smith's Ltad. Cases (6th Am. Ed.), is under consideration.
282 OF ALIENATION BY DEED. [BOOK II.
be put in writing and signed by the party granting, or his
agent lawfully authorized in writing. 8
Fourthly, the matter written must be legally or orderly
set forth, that is, there must be words sufficient to specify
the agreement and bind the parties, which sufficiency
must be left to the courts of law to determine. [298]
1. The premises may be used to set forth the number and
names of the parties, with their additions or titles. They
also contain the recital, if any, of such deeds, agreements,
or matters of fact as are necessary to explain the reasons
upon which the present transaction is founded; and herein
also is set down the consideration upon which the deed is
made. And then follows the certainty of the grantor,
grantee, and thing granted.
2, 3. Next come the habendum and tenendum. The office
of the habendum is properly to determine what estate or
interest is granted by the deed, though this may be per-
formed, and sometimes is performed, in the premises, in
which case the habendum may lessen, enlarge, explain, or
qualify, but not totally contradict or be repugnant to the
estate granted in the premises. As if a grant be " to A and
the heirs of his body" in the premises, habendum "to him
and his heirs forever," or vice versa. Here A has an estate-
tail, -and a fee-simple expectant thereon. But had it been
in the premises "to him and his heirs," habendum "to him
for life," the habendum would be utterly void; for an estate
of inheritance is vested in him before the habendum comes,
and shall not afterwards be taken away or devested by it.
The tenendum, " and to hold," is now of very little use, and
is only kept in by custom. It was sometimes formerly used
to signify the tenure by which the estate granted was to be
holden, viz., "tenendum per servitium militare, in buryagio,
in libero socagio? etc." [299] But all these being now re-
8. This statute has in whole or in conveyance blanks in the state where
part been re-enacted in most of the he resides and study them and c'jm-
states; and in all, so far as we know, pare them with the requirements of
conveyances of land are by deed, the text and the local statutes and
though the forms thereof have been decisions.
greatly simplified. The student is ad- 9. To hold by military service, in
vised to purchase a set of printed burgage, in free socage, etc.
CHAP. XX.] OF ALIENATION BY DEED. 283
duced to free and common socage, the tenure is never
specified.
4. Next follow the terms of stipulation, if any, upon
which the grant is made, the first of which is the redden-
dum, or reservation, whereby the grantor doth create or
reserve some new thing to himself out of what he had before
granted, as "rendering therefor yearly the sum of ten shil-
lings, or a pepper-corn, or two days' ploughing, or the like."
To make a reddendum good, if it be of anything newly created
by the deed, the reservation must be to the grantors, or
some, or one of them, and not to any stranger to the deed.
But if it be of ancient services or the like annexed to the
land, then the reservation may be to the lord of the fee.
5. Another of the terms upon which a grant may be made
is a condition, which is a clause of contingency, on the hap-
pening of which the estate granted may be defeated: as
" provided always, that if the mortgagor shall pay the
mortgagee 500 upon such a day, the whole estate granted
shall determine; " and the like. [300]
6. Next may follow the clause of warranty, whereby the
grantor doth, for himself and his heirs, warrant and secure
to the grantee the estate so granted.
7. After warranty usually follow covenants or conven-
tions, which are clauses of agreement contained in a deed,
whereby either party may stipulate for the truth of certain
facts, or may bind himself to perform or give something to
the other. [304] Thus the grantor may covenant that he
hath a right to convey, or for the grantee's quiet enjoy-
ment, or the like ; the grantee may covenant to pay his rent
or keep the premises in repair, &c. If the covenantor
covenants for himself and his heirs, it is then a covenant
real, and descends upon the heirs, who are bound to perform
it, provided they have assets by descent, but not otherwise.
If he covenants also for his executors and administrators, his
personal assets, as well as his real, are likewise pledged for
the performance of the covenant, which makes such covenant
a better security than any warranty. It is also in some re-
spects a less security, and therefore more beneficial to the
grantor, who usually covenants only for the acts of himself
284 OF ALIENATION BY DEED. [BOOK IT.
and his ancestors, whereas a general warranty extends to all
mankind, for which reasons the covenant has in modern
practice totally supersede the other. 1
8. Lastly comes the conclusion, which mentions the
execution and date of deed, or the time of its being given
or executed, either expressly or by reference to some day
and year before mentioned. Not but a deed is good al-
though it mention no date, or hath a false date, or even if
it hath an impossible date, as the thirtieth of February,
provided the real day of its being dated or given, that is
delivered, can be proved.
The fifth requisite for making a good deed is the reading
of it. This is necessary wherever any of the parties desire
it, and if it be not done on his request, the deed is void as to
him. If he can, he should read it himself; if he be blind or
illiterate, another must read it to him. If it be read falsely
it will be void, at least for so much as is misrecited, unless
it be agreed by collusion that the deed shall be read false on
purpose to make it void, for in such case it shall bind the
fraudulent party. 2
Sixthly, it is requisite that the party whose deed it is
should seal, and now in most cases [by virtue of the statute
of frauds] I apprehend should sign it also. 3 [305]
A seventh requisite to a good deed is that it be delivered
by the party himself or his certain attorney, which there-
fore is also expressed in the attestation, "sealed and deliv-
ered." [307] A deed takes effect only from this tradi-
tion or delivery; for if the date be false or impossible, the
1. In this country the usual cove- See, generally, as to the requisites of
nants are (1) the covenant of seisin; deeds, Hopkins, Real Prop., 414 et seq.
(2) of good right to sell and convey; 3. A common law seal is an impres-
(3) against incumbrances ; (4) for sion upon wax, wafer or any other
quiet enjoyment; and (5) of general tenacious substance capable of receiv-
warranty. ing an impression. In many states
2. Hopkins, Real Prop., 429. a seal is no longer necessary; in oth-
If a party to the deed can read, he ers a scroll made by a pen or printed
is conclusively presumed to know the on the paper is sufficient. So in Michi-
contents of the instrument, though he gan and Illinois. See, generally, Hop-
did not actually read it before it was kins, Real Prop., 429, 430.
executed. Hopkins, Real Prop., 429.
CHAP. XX.]
OF ALIENATION BY DEED.
281
delivery ascertains the time of it. And if another person
seals the deed, yet if the party delivers it himself, he
thereby adopts the sealing, and by a parity of reason the
signing also, and makes them both his own. A delivery
may be either absolute, that is to the party or grantee him-
self, or to a third person, to hold till some conditions be
performed on the part of the grantee, in which last case
it is not delivered as a deed but as an escrow, that is, as a
scrowl or writing which is not to take effect as a deed till
the conditions be performed, and then it is a deed to all
intents and purposes. 4
The last requisite to the validity of a deed is the attesta-
tion, or execution of it in the presence of witnesses, though
this is necessary rather for preserving the evidence than
for constituting the essence of the deed. 5
4. When the condition has been
performed the deed takes effect from
the time of the first delivery, unless
intervening rights have attached.
Hopkins, Real Prop., 436, 437.
5. Attestation by witnesses and ac-
knowledgment before an officer are
usually also required in this country
in order to entitle the deed to record;
and in some states in order to render
it valid. The local statutes should be
carefully examined before using any
printed blank.
Illinois has, by statute, provided an
optional system of registration of
title, the so-called Torren's system.
See 111. Land Titles Act, approved
June 13, 1895; Rev. Stat. 111., ch. 30,
sees. 43 et seq.; Hopkins, Real Prop.,
412, 413: The Torren's System, by M.
M. Yeakle, 1894.
The following will serve as an ex-
ample of a modern deed:
This Indenture, Made this 31st day
of August, in the year of our Lord
one thousand nine hundred and four-
teen, between James Jackson and
Mary Jackson, his wife, both of the
City of Ludington, Mason County,
Michigan, parties of the first part,
and Henry James of the same place
of the second part,
Witnesseth, That the said parties
of the first part, for and in considera-
tion of the sum of one dollar and
other valuable considerations to them
in hand paid by the said party of the
second part, the receipt whereof is
hereby confessed and acknowledged,
do by these presents grant, bargain,
sell, remise, release, alien and con-
firm unto the said party of the second
part, and his heirs and assigns, for-
ever, all that certain piece or parcel
of land situate and being in the City
of Ludington, County of Mason, and
State of Michigan, and described as
follows, to-wit:
[Here insert description of the
premises conveyed.]
Together with all and singular the
hereditaments and appurtenances
thereunto belonging or in anywise ap-
pertaining: To Have and to Hold
the said premises as above described,
286
OF ALIENATION BY DEED.
[BOOK IT.
III. Next, how may a deed be avoided, or rendered of
no effect. [308] And from what has been before laid down,
it will follow that if a deed wants any of the essential re-
\vitli the appurtenances, unto the said
party of the second part, and to his
heirs and assigns forever. And the
said James Jackson, one of said par-
ties of the first part, for himself, hig
heirs, executors and administrators,
does covenant, grant, bargain and
agree to and with the said party of
the second part, his heirs and assigns,
that at the time of the ensealing and
delivery of these presents, he is well
si'iz:d of the above granted premises
in fee simple; that they are free from
all incumbrances whatever and that
lie will, and his heirs, executors, and
administrators shall Warrant and
Defend the same against all lawful
claims whatsoever.
[Any exceptions, reservations, con-
ditions and special covenants, if any,
may be inserted here. The order of
sequence is not important.]
In Witness Whereof, the said par-
ties of the first part have hereunto
set their hands and seals the day and
year first above written.
James Jackson. [Seal]
Mary Jackson. [Seal]
Sealed and delivered in presence of
John Doe,
Richard Roe.
State of Michigan,
County of Mason, ss. :
On this 31st day of Au-
gust, in the year one thou-
sand nine hundred and four-
teen, before me a notary pub-
lic in and for said county,
personally appeared James
Official Jackson and Mary Jackson,
Seal his wife, to me known to be
the same persons described
in and who executed the
within instrument, who sev-
erally acknowledged the same
to be their free act and deed.
[***]
Hugh A. Thompson,
Notary Public in and for said county.
My commission will expire on the
1st day of August, 1916.
Hugh A. Thompson.
Note. The provision of the stat-
ute as to the acknowledgment must
be followed. If, as is often the case,
a separate examination of the wife,
etc., is required, the following clause,
or one conforming to the statute,
should be inser'ecl in the line of stars
inclosed by brackets. "And the said
Mary Jackson, wife of the said James
Jackson, on a private examination by
me separate and apart from her said
husband, acknowledged that she exe-
cuted the said deed freely and with-
out fear or compulsion from her said
husband or from any one."
(Indorsement) :
WARRANTY DEED.
Short Form.
James Jackson and Mary Jackson,
his wife,
to
Henry James.
Register's Office,
State of Michigan,
Mason County,
Received for record, the 31st day
of August, A. D. 1914, at 2 o'clock,
P. M., and recorded in Liber 100 of
Deeds, on page 500.
Albert Jones,
Register.
CHAP. XX.] OF ALIENATION BY DEED. 287
quisites before mentioned, either, 1. Proper parties and
a proper subject-matter; 2. A good and sufficient considera-
tion; 3. Writing on paper or parchment duly stamped; 4.
Sufficient and legal words, properly disposed; 5. Reading,
if desired, before the execution; 6. Sealing and, by the
statute, in most cases signing also; or 7. Delivery, it is
a void deed ab initial It may also be avoided by matter
ex post facto; as, 1. By rasure, interlining, or other altera-
tion in any material part, unless a memorandum is made
thereof at the time of the execution and attestation. 7 2. By
breaking off or defacing the seal. 3. By delivering it up
to be cancelled, that is, to have lines drawn over it in the
form of lattice-work or cancell^ though the phrase is now
used figuratively for any manner of obliteration or defacing
it. 8 [309] 4. By the disagreement of such whose concur-
rence is necessary in order for the deed to stand, as the
husband, where a feme-covert is concerned, an infant, or
person under duress, when those disabilities are removed,
and the like. 5. By the judgment or decree of a court of
judicature. This was anciently the 'province of the Court
of Star-Chamber, and now of the Chancery, when it ap-
pears that the deed was obtained by fraud, force, or other
foul practice, or is proved to be an absolute forgery. In
any of these case's the deed may be voided, either in part
or totally, according as the cause of avoidance is more or
less extensive. 9
6. See the preceding notes. be admitted in evidence. 4 Chamber-
7. Happening afterwards. When layne's Evidence, 3103 and cases
there is nothing suspicious about the cited.
appearance of the interlineation or 8- If the title has once passed by
erasure, the better opinion is that it virtue of the deed, any subsequent de-
is prima facie presumed to have been facing or destruction of the document
made before the delivery; but where though it may destroy the evidence
the appearance of the erasure, etc., of the passing of the title, will not
is such as, unexplained, to create a revert the title in the grantor,
suspicion, such suspicious appearance 9. See vol. 2. Equity, for a consid.-
must be explained to the satisfaction eration of *his subject,
of the judge before the document will
238 OF ALIENATION BY DEED. [BooKlL
Deeds used in the conveyance of real estate are either
conveyances at common law, or such as receive their force
and efficacy by virtue of the statute of uses.
I. Of conveyances by the common law, some may be
called original or primary conveyances, which are those by
means whereof the benefit or estate is created or first ari-
others are derivative or secondary, whereby the benefit or
estate originally created is enlarged, restrained, transferred,
or extinguished.
Original conveyances are the following: 1, Feoffment;
2, Gift; 3, Grant; 4, Lease; 5, Exchange; 6, Partition. DC-
rivative are: 7, Release; 8, Confirmation: 9, Surrender; li>,
Assignment; 11, Defeasance. [310]
1. A feoffment (feoff amentum) is a substantive derived
from the verb to enfeoff (feoff are or infeudarc), to give one
a feud, and therefore feoffment is properly donatio fcndi. It
is the most ancient method of conveyance, the most solemn
and public, and therefore the most easily remembered and
proved. And it may properly be defined the gift of any
corporeal hereditament to another. He that so gives -or
enfeoft's is called the feoff or, and the person enfeoffed is
denominated the feoffee.
This is plainly derived from, or is indeed itself the very
mode of, the ancient feodal donation; for though it may b*
performed by the word " enfeoff/' or " grant/' yet the aptest
word of feoffment is " do or dedi." But by the mere words*
of the deed the feoffment is by no means perfected; there
remains a very material ceremony to be performed, called
iircry of seisin, without which the feoffee has but a mere es-
tate at will. [311] This, livery of seisin is no other than
the pure feodal investiture or delivery of corporeal posses-
sion of the land or tenement, which was held absolutely
necessary to complete the donation. 1
Livery of seisin, by the common law, is necessary to be
made upon every grant of an estate of freehold in heredita-
ments corporeal, whether of inheritance or for life only.
1. Deeds of feoffment and livery of is a deed of bargain and sale. See
seisin are obsolete in this country. Hopkins, Real Prop., 405.
The most common form of conveyance
CHAP. XX.] OF ALIEXATION BY DEED. 280
[314] In hereditaments incorporeal it is impossible to be
made, for they are not the object of the senses, and in
leases for years or other chattel interests it is not neces-
sary. In leases for years indeed an actual entry is neces-
sary to vest the estate in the lessee, for the bare lease gives
him only a right to enter, which is called his interest in the
term, or interesse termini; and when he enters in pursuance
of that right, he is then, and not before, in possession of
his term, and complete tenant for years.
On the creation of a freehold remainder at one and the
same time with a particular estate for years at the com-
mon law livery must be made to the particular tenant. But
if such a remainder be created afterwards, expectant on a
lease for years now in being, the livery must not be made
to the lessee for years, for then it operates nothing. But
it must be made to the remainder-man himself, by consent
of the lessee for years, for without his consent no livery of
the possession can be given, partly because such forcible
livery would be an ejectment of the tenant from his term,
and partly for the reasons before given for introducing the
doctrine of attornments. [315]
Livery of seisin is either in deed or in law. Livery in
deed is thus performed. The feoffor, lessor, or his attorney,
together with the feoffee, lessee, or his attorney (for this
may as effectually be done by deputy or attorney as by the
principals themselves in person), come to the land or to the
house, and there, in the presence of witnesses, declare the
contents of the feoffment or lease on which livery is to be
made. And then the feoffor, if it be of land, doth deliver
to the feoffee, all other persons being out of the ground, a
clod or turf, or a twig or bough, there growing, with words
to this effect: " I deliever these to you in the name of seisin
of all the lands and tenements contained in this deed."
But if it be of a house, the feoffor must take the ring or
latch of the door, the house being quite empty, and deliver
it to the feoffee in the same form; and then the feoffee must
enter alone and shut to the door, and then open it and let
in the others. If the conveyance or feoffment be of divers
lands lying scattered in one and the same county, then in
19
290 OF ALIENATION BY DEED. [BOOK II.
the feoff or 's possession, livery of seisin of any parcel in the
name of the rest suffice th for all; but if they be in several
counties there must be as many liveries as there are coun-
ties. For if the title to these lands conies to be disputed,
there must be as many trials as there are counties, and the
jury of one county are no judges of the notoriety of a fact
in another. Besides, anciently this seisin was obliged to
be delivered coram paribus de vicineto, before the peers or
freeholders of the neighborhood, who attested such de-
livery in the body or on the back of the deed. Also, if the
lands be out on lease, though all lie in the same county,
there must be as many liveries as there are tenants, because
no livery can be made in this case but by the consent of the
particular tenant, and the consent of one will not bind the
rest. [316] And in all these cases it is prudent and usual
to endorse the livery of seisin on the back of the deed,
specifying the manner, place, and time of making it, to-
gether with the names of the witnesses.
Livery in law is where the same is not made on the land,
but in sight of it only, the feoffor saying to the feoffee, " I
give you yonder land; enter and take possession." Here,
if the feoffee enters during the life of the feoffor, it is a
good livery, but not otherwise, unless he dares not enter,
through fear of his life or bodily harm; and then his con-
tinual claim, made yearly in due form of law, as near as
possible to the lands, will suffice without an entry. This
livery in law cannot, however, be given or received by
attorney, but only by the parties themselves.
2. The conveyance by gift (donatio) is properly applied
to the creation of an estate-tail, as feoffment is to that of an
estate in fee, and lease to that of an estate for life or years.
It differs in nothing from a feoffment but in the nature of
an estate passing by it, for the operative words of convey-
ance in this case are do or dcdi, and gifts in tail are equally
imperfect without livery or seisin, as feoffments in fee-
simple. 2
2. See preceding note. Estates-tail, containing the proper words of limi-
where they exist, are limited by an tation. See Hopkins, Real Prop., 406,
ordinary deed of bargain and sale 411.
CHAP. XX.] OF ALIEXATIOX BY DEED. 291
3. Grants, concessiones, constitute the regular method by
the common law of transferring the property of incorporeal
hereditaments, or such things whereof no livery can be had.
[317] For which reason all corporeal hereditaments, as
lands and houses, are said to lie in livery; and the others,
as advowsons, commons, rents, reversions, &c., to lie in
(/rant. These, therefore, pass merely by the delivery of
the deed. And in signiories, or reversions of lands, such
grant, together with the attornment of the tenant (while
attornments were requisite), were held to be of equal noto-
riety with, and therefore equivalent to, a feoffment and
livery of lands in immediate possession. It therefore dif-
fers but little from a feoffment, except in its subject-matter,
for the operative words therein commonly used are dcdi et
concessi, " have given and granted." 3
4. A lease is properly a conveyance of any lands or tene-
ments (usually in consideration of rent or other annual
recompense) made for life, for years, or at will, but always
for a less time than the lessor hath in the premises ; for if it
be for the irliole interest, it is more properly an assignment
than a lease. The usual words of operation in it are " de-
mise, grant, and to farm let; ditnisi, concessi, ct ad firmam
tradidi." [318] By this conveyance an estate for life, for
years, or at will, may be created, either in corporeal or
incorporeal hereditaments, though livery of seisin is in-
deed incident and necessary to one species of leases, viz.,
leases for life of corporeal hereditaments, but to no other. 4
By the common law, as it has stood for many centuries,
all persons seised of any estate might let leases to endure
so long as their own interest lasted, but no longer. There-
fore tenant in fee-simple might let leases of any duration,
for he hath the whole interest; but tenant in tail, or tenant
for life, could make no leases which should bind the issue
in tail or reversioner, nor could a husband, seised jure
3. See Hopkins, Real Prop., 407. ished by statute in some states. Hop-
The statutes in many of the states kins, Real Prop., 411; 1 Stim. Am.
provide short form deeds either of Stat. Law, 1470.
warranty or quit-claim. The common 4. Xo longer necessary. As to
law forms may, however, still be used, leases, see Hopkins, Real Prop., 407.
except that ftoffment has been abol-
292 OF ALIENATION BY DEED. [BOOK II.
11. r or is? make a firm or valid lease for any longer term
than the joint lives of himself and his wife, for then his
interest expired.
5. An exchange is a mutual grant of equal interests, the
one in consideration of the other. [323] The word " ex-
change " is so individually requisite and appropriated by
law to this case, that it cannot be supplied by any other
word, or expressed by any circumlocution. The estates
exchanged must be equal in quantity; not of value, for that
is immaterial, but of interest; as fee-simple for fee-simple,
a lease for twenty years for a lease for twenty years, and
the like. And the exchange may be of things that lie
either in grant or in livery. But no livery of seisin, even in
exchanges of freehold, is necessary to perfect the convey-
ance; for each party stands in the place of the other and
occupies his right, and each of them hath already had
corporal possession of his own land. But entry must be
made on both sides; for if either party die before entry,
the exchange is void for want of sufficient notoriety. 6
6. A partition is when two or more joint-tenants, copar-
ceners, or tenants in common agree to divide the lands so
held among them in severalty, each taking a distinct part. 7
[324] Here, as in some instances there is a unity of inter-
est and in all a unity of possession, it is necessary that they
all mutually convey and assure to each other the several
estates which they are to take and enjoy separately. By
the common law coparceners, being compellable to make
partition, might have made it by parol only; but joint-
tenants and tenants in common must have done it by deed :
and in both cases the conveyance must have been perfected
by livery of seisin. And the statutes of 31 Hen. VIII. c. 1
and 32 Hen. VIII. c. 32 made no alteration in this point.
But the statute of frauds, 20 Car. II. c. 2, hath now abol-
ished this distinction, and made a deed in all cases
necessary.
5. By right of his wife. 7. This may be effected by mutual
6. See Hopkins on Real Est., 407. deeds of quit-claim. See, generally,
An exchange may be effected by sep- Hopkins on Real Estate, 344. See
nrate deeds executed by the respec- the local statutes.
tive parties to each oth'er.
CHAP. XX.] OF ALIENATION BY DEED. 293
These are the several species of primary or original con-
veyances. Those which remain are of the secondary or
derivative sort, which presuppose some other conveyance
precedent, and only serve to enlarge, confirm, alter, re-
strain, restore, or transfer the interest granted by such
original conveyance. As,
7. Releases; which are a discharge or a conveyance of a
man's right in lands or tenements to another that hath some
former estate in possession. The words generally used
therein are " remised, released, and for ever quit-claimed." 8
And these releases may inure either, 1. By way of enlarging
an estate or enlarger restate: as if there be tenant for life or
years, remainder to another in fee, and he in remainder re-
leases all his right to the particular tenant and his heirs; this
gives him the estate in fee. But in this case the relessee
must be in possession of some estate for the release to work
upon; for if there be lessee for years, and, before he enters
and is in possession, the lessor releases to him all his right
in the reversion, such release is void for want of possession
in the relessee. 2. By way of passing an estate,, or mittcr
restate: as when one of two coparceners releaseth all her
right to the other, this passeth the fee-simple of the whole.
[325] And in both these cases there must be a privity of
estate between the relessor and relessee; that is, one of their
estates must be so related to the other as to make but one
and the same estate in law. 3. By way of passing a right,
or mitter le droit: as if a man be disseised, and releaseth to
his disseisor all his right, hereby the disseisor acquires a
new right, which changes the quality of his estate, and ren-
ders that lawful which before was tortious or wrongful.
4. By way of extinguishment: as if my tenant for life makes
a lease to A for life, remainder to B and his heirs, and I
release to A; this extinguishes my right to the reversion,
and shall inure to the advantage of B's remainder as well
as of A's particular estate. 5. By way of entry and feoff-
8. In common use in the United grantee is not necessary and further
States. " A release is like our mod- in the release privity of estate be-
ern quit-claim deed, except that in tween the parties was required."
the quit-claim possession of the Hopkins, Real Estate, 408.
29-i OF ALIENATION BY DEED. [BOOK II.
merit: as if there be two joint- disseisors, and the disseisee
releases to one of them, he shall be sole seised, and shall
keep out his former companion; which is the same in effect
as if the disseisee had entered and thereby put an end to
the disseisin, and afterwards had enfeoffed one of the dis-
seisors in fee. And hereupon we may observe, that when a
man has in himself the possession of lands, he must at the
common law convey the freehold by feoffment and livery,
which makes a notoriety in the country. But if a man has
only a right or a future interest, he may convey that right
or interest by a mere release to him that is in possession
of the land, for the occupancy of the relessee is a matter
of sufficient notoriety already.
8. A confirmation is of a nature nearly allied to a release.
Sir Edward Coke defines it to be a conveyance of an estate
or right in esse, whereby a voidable estate is made sure
and unavoidable, or whereby a particular estate is in-
creased; and the words of making it are these, " have given,
granted, ratified, approved, and confirmed." 9 An instance
of the first branch of the definition is, if tenant for life
leaseth for forty years, and dieth during that term, here
the lease for years is voidable by him in reversion; yet, if
he hath confirmed the estate of the lessee for years, before
the death of tenant for life, it is no longer voidable, but
sure. [326] The latter branch, or that which tends to the
increase of a particular estate, is the same in all respects
with that species of release which operates by way of en-
largement.
9. A surrender, sursnmrcdditlo, or rendering up, is of a
nature directly opposite to a release; for as that operates
by the greater estate's descending upon the less, a surren-
der is the falling of a less estate into a greater. It is de-
fined a yielding up of an estate for life or years to him
that hath the immediate reversion or remainder, wherein
the particular estate may merge or drown by mutual agree-
9. It should not be used if the con- many courts be made effective as
vcyance it is intended to validate was some other form of conveyance. Hop-
originally void, though it is said that -kins, Real Prop., 403.
such an instrument would now by
CHAP. XX.] OF ALIENATION BY DEED. 295
merit between them. 1 It is done by these words, " hath
surrendered, granted, and yielded up." The surrenderor
must be in possession, and the surrenderee must have a
higher estate, in which the estate surrendered may merge;
therefore tenant for life cannot surrender to him in remain-
der for years. In a surrender there is no occasion for
livery of seisin, for there is a privity of estate between the
surrenderor and the surrenderee: the one's particular es-
tate and the other's remainder are one and the same estate,
and livery having been once made at the creation of it,
there is no necessity for having it afterwards. And, for
the same reason, no livery is required on a release or con-
firmation in fee to tenant for years or at will, though a free-
hold thereby passes, since the reversion of the lessor or
confirmor, and the particular estate of the relessee or con-
firmee, are one and the same estate; and where there is
already a possession, derived from such a privity of estate,
any further delivery of possession would be vain and
nugatory.
10. An assignment is properly a transfer, or making over
to another, of the right one has in any estate; but it is
usually applied to an estate for life or years. And it dif-
fers from a lease only in this, that by a lease one grants an
interest less than his own, reserving to himself a reversion;
in assignments he parts with the whole property, and the
assignee stands to all intents and purposes in the place of
the assignor. 2 [327]
1. Privity of estate is necessary, ing a thing not in existence, as to
and the surrender can be made only build a wall upon the premises, tha
to the holder of the next immediate assignee will not be bound; but the
esate. Hopkins, Real Prop., 408. assignee will be bound, if the lessee
2. This is not universally true; for has covenanted for himself and as-
there is a variety of distinctions when signs. Where the lessee covenants for
the assignee is bound by the covenants himself, his executors and adminis-
of the assignor, and when he is not. trators, to reside upon the premises,
The general rule is, that he is bound this covenant binds his assignee, for
&;/ all covenants which run icith the it runs with, or is appurtenant to,
land; 6 not by collateral covenants the thing demised. 2 Hen. Bl. 133.
which do not run with the land. As The assignee in no case is bound by
if a Irssee covenants for himself, ex- the covenant of the lessee, to build
cutors and administrators, concern- a house for the lessor any where off
206 OF ALIENATION BY DEED. [Boox IT.
11. A defeasance is a collateral deed, made at the same
time with a feoffment or other conveyance, containing cer-
tain conditions, upon the performance of which the estate
then created may be defeated or totally undone. And in
this manner mortgages were in former times usually made;
the mortgagor enfeoffing the mortgagee, and he at the same
time executing a deed of defeasance, whereby the feoff-
ment was rendered void on repayment of the money bor-
rowed at a certain day. 3 And this, when executed at the
same time with the original feoffment, was considered as
part of it by the ancient law, and, therefore, only indulged,
no subsequent secret revocation of a solemn conveyance,
executed by livery of seisin, being allowed in those days
of simplicity and truth, though, when uses were after-
wards introduced, a revocation of such uses was permitted
by the courts of equity. But things that were merely ex-
ecutory, or to be completed by matter subsequent (as rents,
of which no seisin could be had till the time of payment),
and so also annuities, conditions, warranties, and the like r
were always liable to be recalled by defeasances made sub-
sequent to the time of their creation.
II. Conveyances which have their force and operation by
virtue of the statute of uses.
Uses and trusts are in their original of a nature very
similar, or rather exactly the same, answering more to the
fidci-comtiiissnm* than the iisus fnictus 5 of the civil law,
the premises, or to pay money to a ing the kingdom, provided Ihe assign-
stranger. 5 Co. 16. The assignee is ment be executed before his depart-
not bound by a covenant broken before ure. 1"B. & P. 21. The same prin-
assignment. 3 Burr. 1271. See Com. ciple prevails in equity. See 2 Bridg.
Dig. Covenant. But if an underlease Eq. Dig. 138, 1 Vern. 87, 2 Vern.
is made even for a day less than the 103, 8 Ves. 95, 1 Sch. & Lefroy, 310.
whole term, the underlessee is not But the assignee's liability commences*
liable for rent or covenants to the upon acceptance of the lease, though
original lessee, like an assignee of the he never enter. 1 B. & P. 238.
whole term. Dougl. 183, 56. An as- 3. The conveyance and defeasance
signee is liable for rent only whilst of a mortgage are now in practice
he continues in possession under the combined (though not necessarily so)
assignment. And he is held not to in one instrument,
be guilty of a fraud, if he assigns 4. A trust,
even to a beggar, or to a person leav- 5. A usufruct.
CHAP. XX.] OF ALIENATION BY DEED. 297
which latter was the temporary right of using a thing with-
out having the ultimate property or full dominion of the
substance. But the fidei-commissum, which usually was cre-
ated by will, was the disposal of an inheritance to one, in
confidence that he should convey it or dispose of the profits
at the will of another. [328] In our law, a use is a confi-
dence reposed in another who was tenant of the land, or
terre-tenant, that he should dispose of the land according to
the intentions of cestuy que use, or him to whose use it was
granted, and suffer him to take the profits. As, if a feoff-
ment was made to A and his heirs, to the use of (or in trust
for) B and his heirs, here at the common law A, the terre-
tenant, had the legal property and possession of the land,
but B, the cestuy que use, was in conscience and equity to
have the profits and disposal of it.
This notion was transplanted into England from the civil
law, about the close of the reign of Edward III., by means of
the foreign ecclesiastics, who introduced it to evade the
statutes of mortmain, by obtaining grants of lands, not to
religious houses directly, but to the use of the religious
houses, which the clerical chancellors of those times held to
be fidei-commissa and binding in conscience, and therefore
assumed the jurisdiction which Augustus had vested in his
praetor, of compelling the execution of such trusts in the
Court of Chancery.
Originally it was held that the chancery could give no
relief but against the very person himself intrusted for
ccstuy que use, and not against his heir or alienee. [329]
This was altered in the reign of Henry VI. with respect to
the heir, and afterwards the same rule, by a parity of rea-
son, was extended to such alienees as had purchased either
without a valuable consideration, or with an express notice
of the use. But a purchaser for a valuable consideration,
without notice might hold the land discharged of any trust
or confidence. And also it was held that neither the king
nor queen on account of their dignity royal, nor any corpo-
ration aggregate on account of its limited capacity, could
be seised to any use but their own; that is, they might hold
the lands, but were not compellable to execute the trust.
298 OF ALIENATION BY DEED. [ BOOK IT.
[330] And if the feoffee to uses died without heir, or com-
mitted a forfeiture or married, neither the lord who entered
for his escheat or forfeiture, nor the husband who retained
the possession as tenant by the-curtesy, nor the wife to
whom dower was assigned, were liable to perform the use,
because they were not parties to the trust, but came in by
act of law, though doubtless their title in reason was no-
better than that of the heir.
On the other hand the use itself, or interest of cestuy
que use, was learnedly refined upon with many elaborate
distinctions. And, 1. It was held that nothing could be
granted to a use whereof the use is inseparable from the
possession, as annuities, ways, commons, and authorities,
quae ipso usu consumuntur* or whereof the seisin could
not be instantly given. 2. A use could not be raised with-
out a sufficient consideration. For where a man makes a
feoffment to another, without any consideration, equity
presumes that he meant it to the use of himself, unless he
expressly declares it to be to the use of another, and then
nothing shall be presumed contrary to his own expressions.
But if either a good or a valuable consideration appears,
equity will immediately raise a use correspondent to sucli
consideration. 3. Uses were descendible according to the
rules of the common law in the case of inheritances in pos-
session, for in this and many other respects aequitas sequitur
legcm, and cannot establish a different rule of property from
that which the law has established. 4. Uses might be as-
signed by secret deeds between the parties, or be devised
by last will and testament; for as the legal estate in tho
soil was not transferred by these transactions, no livery of
seisin was necessary, and as the intention of the parties was
the leading principle in this species of property, any instru-
ment declaring that intention was allowed to be binding in
equity. [331] But ccstny quc use could not at common law
aliene the legal interest of the lands without the concur-
rence of his feoffee, to whom he was accounted by law to be
only tenant at sufferance. 5. Uses were not liable to any
of the feodal burthens, and particularly did not escheat for
6. Which is consumed in the use itself.
CHAP. XX.] Or ALIENATION BY DEED. 299
felony or other defect of blood; for escheats, &c., are the
consequence of tenure, and uses are held of nobody. But
the land itself was liable to escheat whenever the blood of
the feoffee to uses was extinguished by crime or by defect,
and the lord (as was before observed) might hold it dis-
charged of the use. 6. No wife could be endowed, or hus-
band have his curtesy, of a use, for no trust was declared
for their benefit at the original grant of the estate; and
therefore it became customary, when most estates were put
in use, to settle before marriage some joint estate to the
use of the husband and wife for their lives, which was the
original of modern jointures. 7. A use could not be ex-
tended by writ of elcgit, or other legal process, for the debts
of ccstuy que use; for, being merely a creature of equity,
the common law, which looked no farther than to the person
actually seised of the land, could award no process
against it.
[On account of the inconveniences arising from the rules
above stated, various statutes were enacted, the provisions
of which] all tended to consider ccstuy que use as the real
owner of the estate, and at length that idea was carried into
full effect by the statute 27 Hen. VIII. c. 10, which is
usually called the statute of uses, or, in conveyances and
pleadings, the statute for transferring uses into possession,
which, after reciting the various inconveniences before men-
tioned and many others, enacts, that " when any person
shall be seised of lands, &c., to the use, confidence, or trust
of any other person or body politic, the person or corpora-
tion entitled to the use in fee-simple, fee-tail for life, or
years, or otherwise, shall from thenceforth stand and be
seised or possessed of the land, &c., of and in the like estates
as they have in the use, trust, or confidence, and that the
estate of the person so seised to uses shall be deemed to be
in him or them that have the use, in such quality, manner,
form, and condition, as they had before in the use." [333]
The statute thus executes the use; that is, it conveys the
possession to the use, and transfers the use into possession,
thereby making ccstuy que use complete owner of the lands
and tenements, ae well at law as in equity.
300 OF ALIENATION BY DEED. [BOOK IT.
The statute having thus not abolished the conveyance to
uses, but only annihilated the intervening estate of the
feoffee, and turned the interest of ccxliuj qne use into a
legal instead of an equitable ownership, the courts of com-
mon law began to take cognizance of uses, instead of send-
ing the party to seek his relief in chancery. And, con-
sidering them now as merely a mode of conveyance, very
many of the rules before established in equity were adopted
with improvements by the judges of the common law. The
same persons only were held capable of being seised to a
use; the same considerations were necessary for raising it;
and it could only be raised of the same hereditaments as
formerly. But as the statute, the instant it was raised,
converted it into an actual possession of the land, a
great number of the incidents that formerly attended it
in its fiduciary state were now at an end. The land could
not escheat or be forfeited by the act or defect of the
feoffee, nor be aliened to any purchaser discharged, of the
use, nor be liable to dower or curtesy on account of the
seisin of such feoffee, because the legal estate never rests
in him for a moment, but it is instantaneously transferred
to cestuy qiie use as soon as the use is declared. And, as
the use and the land were now convertible terms, they
became liable to dower, curtesy, and escheat, in conse-
quence of the seisin of cestuy que use, who was now become
the tcrre-tenant also, and they likewise were no longer de-
visable by will.
The various necessities of mankind induced also the judges
very soon to depart from the rigor and simplicity of the
rules of the common law, and to allow a more minute and
complex construction upon conveyances to uses than upon
others. [334] Hence it was adjudged that the use need
not always be executed the instant the conveyance is made,
but, if it cannot take effect at that time, the operation of
the statute may wait till the use shall arise upon some
future contingency, to happen within a reasonable period
of time, and in the mean while the ancient use shall remain
in the original grantor; as, when lands are conveyed to the
use of A and B, after a marriage shall be had between
CHAP. XX.]
OF ALIENATION BY DEED.
301
them, or to the use of A and his heirs till B shall pay him
a sum of money, and then to the use of B and his heirs,
which doctrine, when devises by will were again introduced
and considered as equivalent in point of constructions to
declarations of uses, was also adopted in favor of executory
devises. But herein these, which are called contingent, or
spring-ing uses, 7 differ from an executory devise, in that
7. Mr. Sugdcn devotes a learned
and instructive note, of considerable
length (annexed to the second chapter
of his edition of Gilbert on Uses), to
an elucidation of this subject. Mr.
Sugden says, shifting, secondary and
springing uses, are frequently con-
founded with each other, and with
future or contingent uses. They may
perhaps be thus classed: 1st, Shift-
ing or secondary uses, which take ef-
fect in derogation of some other es-
tate, and are either limited expressly
by the deed, or are authorized to be
created by some person named in the
deed. 2ndly, Springing uses, confin-
ing this class to uses limited to arise
on a future event, where no preceding
use is limited, and which do not take
effect in derogation of any other in-
terest than that which results to the
grantor, or remains in him, in the
meantime. 3dly, Future or contin-
gent uses, are properly uses to take
effect as remainders; for instance, a
use to the first unborn son of A., after
a previous limitation to him for life,
or for years, determinable on his life,
is a future or contingent use; but
yet does not answer the notion of
cither a shifting or a springing use.
Contingent uses naturally arose, after
the statute of 27 Hen. VIII., in imi-
ta'ion of contingent remainders.
The first class, that is, shifting or
secondary uses, are at this day so
common that they pass without obser-
vation. In every marriage settl ment,
the first use is to the owner in fee
until marriage, and after the mar-
riage to other uses. Here, the owner,
in the first instance, takes the fee,
which upon the marriage ceases, and
the new use arises. But a shifting use
cannot be limited on a shifting use;
and shifting uses must be confined
within such limits as are not to tend
to a perpetuity. (See ante, chap. 11.)
But a shifting use may be created
after an estate-tail, to take effect at
any period, however remote; because
the tenant in tail for the time being
may, by a recovery, defeat the shift-
ing use.
As to the second class, or springing
uses, before the statute of Hen. VIII.
there was no mischief in an independ-
ent original springing use, to com-
mence at a distant period, because
the legal estate remained in the trus-
tee. After the statute, too, the use
was held to result to, or remain in,
the person creating the future use,
according to the mode of conveyance
adopted, till the springing use arose.
This resulting use the statute exe-
cuted, so that the estate remained in,
the settlor till the period when the
use was to rise; which might be at
any time within the limits allowed
by law, in case of an executory de-
vise. When springing uses are raised
by conveyances not operating by
transmutation of possession, as such
conveyances have only an equitable
effect until the s'atute and use meet,
302 OF ALIENATION BY DEED. [BOOK IT.
there must be a person seised to such uses at the time when
the contingency happens, else they can never be executed
by the statute; and therefore if the estate of the feoffee to
such use be destroyed by alienation or otherwise before
the contingency arises, the use is destroyed forever;
whereas by an executory devise the freehold itself is trans-
ferred to the future devisee. And in both these cases a
fee may be limited to take effect after a fee, because,
though that was forbidden by the common law in favor
of the lord's escheat, yet when the legal estate was not
extended beyond one fee-simple, such subsequent uses (af-
ter a use in fee) were before the statute permitted to be
limited in equity, and then the statute executed the legal
estate in the same manner as the use before subsisted. It
was also held that a use, though executed, may change from
one to another by circumstances ex post facto, as if A makes
a feoffment to the use of his intended wife and her eldest
son for their lives, upon the marriage the wife takes the
whole use in severalty, and upon the birth of a son the use
is executed jointly in them both. [335] This is sometimes
called a secondary, sometimes a shifting use. And when-
ever the use limited by the deed expires or cannot vest,
it returns back to him who raised it, after such expiration
or during such impossibility, and is styled a resulting use.
As if a man makes a feoffment to the use of his intended
a springing use may be limited by and the future use is limited by way
thtm at once; but where the convey- of remainder, it will be subject to the
ance is one which does operate by rules of common law, and, if the pre-
transmutation of possession (as a fe- vious estate is not sufficient to sup-
ofl'ment, fine, recovery or lease and port it, will be void. (See ante, p.
release), two objects must be attended 168.)
to, first, to convey the estate accord- Future uses have been counte-
ing to the rules of common law; sec- nanced, and springing uses restrained,
ondly, to raise the use out of the by what is now a firm rule of law,
seisin created by the conveyance, namely, that if such a construction
Now, the common law does not admit can be put upon a limitation in use,
of a freehold being limited to com- as that it may take effect by way of
mence in futuro. (See anle, p. 143.) remainder, it shall never take effect
As to the third class, or future or as a springing use. (Southcot v. S^o-
continrjcnt i/srs, where an estate is wel, 1 Mod. 226. 237: 2 Mod. 207;
limited previously to a future use, Goodtitle v. Billington, Dougl. 758.)
CHAP. XX.] OF ALIENATION BY DEED. 303
wife for life, with remainder to the use of his first-born son
in tail; here, till he marries, the use results back to himself;
after marriage, it is executed in the wife for life; and, if she
dies without issue, the whole results back to him in fee.
It was likewise held that the uses originally declared may
be revoked at any future time, and new uses be declared of
the land, provided the grantor reserved to himself such a
power at the creation of the estate ; whereas the utmost that
the common law would allow was a deed of defeasance
coeval with the grant itself, and therefore esteemed a part
of it, upon events specially mentioned. And, in case of
such a revocation, the old uses were held instantly to
cease, and the new ones to become executed in their stead.
By this equitable train of decisions in the courts of law,
the power of the Court of Chancery over landed property
was greatly curtailed and diminished. But one or two
technical scruples, which the judges found it hard to get
over, restored it with tenfold increase. They held, in the
first place, that ' ' no use could be limited on a use, ' ' and
that when a man bargains and sells his land for money,
which raises a use by implication to the bargainee, the
limitation of a further use to another person is repugnant,
and therefore void. [336] And therefore on a feoff ment
to A and his heirs to the use of B and his heirs in trust
for C and his heirs, they held that the statute executed
only the first use, and that the second was a mere nullity?
not adverting that the instant the first use was executed
in B, he became seised to the use of C, which second use
the statute might as well be permitted to execute as it did
the first, and so the legal estate might be instantaneously
transmitted down through a hundred uses upon uses, till
finally executed in the last cestiuj que use. Again, as the
statute mentions only such persons as were seised to the
use of others, this was held not to extend to terms of years
or other chattel interests whereof the termor is not seised,
but only possessed, and therefore if a term of one thousand
years be limited to A, to the use of (or in trust for) B, the
statute does not execute this use, but leaves it as at com-
mon law. And lastly (by more modern resolutions), where
304 OF ALIENATION BY DEED. [BooK IT,
lands are given to one and his heirs in trust to receive
and pay over the profits to another, this use is not executed
by the statute, for the land must remain in the trustee to
enable him to perform the trust.
Of the two more ancient distinctions the courts of equity
quickly availed themselves. In the first case it was evident
that B was never intended by the parties to have any
beneficial interest, and in the second the ccstuy que u*<'
of the term was expressly driven into the Court of Chan-
cery to seek his remedy, and therefore that court deter-
mined, that though these were not uses which the statute
could execute, yet still they were trusts in equity which in
conscience ought to be performed. To this the reason of
mankind assented, and the doctrine of uses was revived
under the denomination of trusts, and thus by this strict
construction of the courts of law a statute made upon great
deliberation and introduced in the most solemn manner has
had little other effect than to make a slight alteration in
the formal words of a conveyance.
However, the courts of equity in the exercise of this new
jurisdiction have wisely avoided in a great degree those
mischiefs which made uses intolerable. [337] The statute
of frauds, 29 Car. II. c. 3, having required that every dec-
laration, assignment, or grant of any trust in lands or
hereditaments (except such as arise from implication or
Construction of law) shall be made in writing signed by
the party, or by his written will, the courts now consider a
trust estate (either when expressly declared or resulting
by such implication) as equivalent to the legal ownership,
governed by the same rules of property, and liable to every
charge in equity, which the other is subject to in law, and
by a long series of uniform determinations, for now near a
century past, with some assistance from the legislature,
they have raised a new system of rational jurisprudence by
which trusts are made to answer in general all the benefi-
cial ends of uses without their inconvenience or frauds.
The trustee is considered as merely the instrument of con-
veyance, and can in no shape affect the estate unless by
alienation for a valuable consideration to a purchaser witli-
CHAP. XX.] OF ALIENATION BY DEED. 305
out notice, which, as ccstuy que 'use is generally in posses-
sion of the land, is a thing that can rarely happen. The
trust will descend, may be aliened, is liable to debts, to
executions on judgments, statutes, and recognizances (by
the express provision of the statute of frauds), to forfeiture,
to leases, and other incumbrances, nay, even to the cur-
tesy of the husband, as if it was an estate at law. It has
not yet indeed been subjected to dower, more from a cau-
tious adherence to some hasty precedents than from any
well-grounded principle. It hath also been held not liable
to escheat to the lord in consequence of attainder or want
of heirs, because the trust could never be intended for his
benefit. But let us now return to the statute of uses.
The only service, as was before observed, to which this
statute is now consigned, is in giving efficacy to certain new
and secret species of conveyances, introduced in order to
render transactions of this sort as private as possible, and
to save the trouble of making livery of seisin, the only
ancient conveyance of corporal freeholds. 8 But this now
has given way to
12. A covenant to stand seised to uses is a conveyance
by which a man seised of lands covenants in consideration
of blood or marriage that he will stand seised of the same
to the use of his child, wife, or kinsman, for life, in tail, or
in fee. 9 [338] Here the statute executes at once the estate,
for the party intended to be benefited, having thus acquired
the use, is thereby put at once into corporal possession of
the land without ever seeing it, by a kind of parliamentary
magic. But this conveyance can only operate when made
upon such weighty and interesting considerations as those
of blood or marriage.
13. A conveyance by a bargain and sale of lands is a kind
of real contract whereby the bargainer for some pecuniary
8. The Statute of Uses is in force viz., trusts implied by law for the
in many states, having been re-en- prevention of fraud and active trusts 4
acted or regarded as a part of the See, generally, Hopkins, Real Prop.,
common law. Some states, however, 252-289.
following New York, have abolished 9. Practically obsolete in the Unifed
all uses and trusts except as per- States. Hopkins, Real Prop., 410.
mitted in certain cases by statute,
20
30G OF ALIENATION BY DEED. [BOOK IT.
consideration bargains and sells, that is, contracts to con-
vey the land to the bargainee, and becomes by such a bar-
gain a trustee for, or seised to the use of the bargainee;
and then the statute of uses completes the purchase, or, as
it hath been well expressed, the bargain first vests the use,
and then the statute vests the possession. 1 But as it was
foreseen that conveyances thus made would want all those
benefits of notoriety which the old common law assurances
were calculated to give, to prevent, therefore, clandestine
conveyances of freeholds, it was enacted in the same session
of parliament, by statute 27 Hen. VIII. c. 16, that such
bargains and sales should not inure to pass a freehold un-
less the same be made by indenture and enrolled within
six months in one of the courts of Westminster Hall or with
the custos rotulorum of the county. Clandestine bargains
and sales of chattel interests, or leases for years, were
thought not worth regarding, as such interests were very
precarious till about six years before, which also occasioned
them to be overlooked in framing the statute of uses, and
therefore such bargains and sales are not directed to be
enrolled. But how impossible is it to foresee and provide
against all the consequences of innovations! [339] Thi<
omission has given rise to.
14. Coneyances by lease and release, first invented by
Serjeant Moore soon after the statute of uses, and now tl: >
most common of any, were thus contrived: A lease, or
rather bargain and sale upon some pecuniary considera-
tion, for one year is made by the tenant of the freehold
to the lessee or bargainee. Now this, without any enrol-
ment, makes the bargainer stand seised to the use of the
bargainee, and vests in the bargainee the use of the term
for a year, and then the statute immediately annexes the
possession. He, therefore, being thus in possession, is
1. See Hopkins, Real Prop., 410. common law conveyances (except fe-
Many deeds in common use at the offments in some states) may still be
present time are in form deeds of employed, the statutory forms not be-
bargain and sale. The statutes in ing mandatory. Hopkins, Real Prop ,
many states have provided short 411. In Illinois title registration by
forms of conveyance, either warranty the so-called Torrens system is op-
de.ds or quit-claim deeds; but the tional. Id., 412.
CHAP. XX.] OF ALIENATION BY DEED.
capable of receiving a release of the freehold and reversion,
which, we have seen before, must be made to a tenant in
possession, and accordingly, the next day a release is
granted to him. This is held to supply the place of livery
of seisin, and so a conveyance by lease and release is said
to amount to a feoffment. 2
15. To these may be added deeds to lead or declare the
uses of other more direct conveyances, as feoffments, fines,
and recoveries, of which we shall speak in the next chapter;
and
16. Deeds of revocation of uses, hinted at in .a former
page [335] and founded in a previous power, reserved at
the raising of the uses to revoke such as were then declared
and to appoint others in their stead, which is incident to
the power of revocation. And this may suffice for a speci-
men of conveyances founded upon the statute of uses, and
will finish our observations upon such deeds as serve to
transfer real property.
Before we conclude, it will not be improper to subjoin a
few remarks upon such deeds as are used not to convey, but
to charge or incumber lands, and to discharge them again;
of which nature are obligations or bonds, recognizances, and
defeasances upon them both. [340]
1. An obligation or bond is a deed whereby the obligor
obliges himself, his heirs, executors, and administrators to
pay a certain sum of money to another at a day appointed.
If this be all, the bond is called a single one, simplex obli-
gatio. 3 But there is generally a condition added, that if the
obligor does some particular act, the obligation shall be void,
or else shall remain in full force; as payment of rent, per-
formance of covenants in a deed, or repayment of a principal
sum of money borrowed of the obligee with interest, which
principal sum is usually one half of the penal sum specified
in the bond. In case this condition is not performed, the
bond becomes forfeited, or absolute at law, and charges the
2. This sort of a conveyance would has become obsolete. See Hopkins,
undoubtedly be efficient to pass title Real Prop., 411.
at the present time; but as it requires 3. A simple obligation,
the execution of two instruments, it .
308 OF ALIENATION BY DEED. [Boox II.
obligor while living; and after his death the obligation de-
scends upon his heir, who (on defect of personal assets) is
bound to discharge it, provided he has real assets, by descent
as a recompense. So that it may be called, though not a
direct, yet a collateral charge upon the lands. How it affects
1he personal property of the obligor will toe more properly
considered hereafter.
If the condition of a bond be impossible at the time of
making it, or be to do a thing contrary to some rule of law
that is merely positive, or be uncertain or 'insensible, the
condition alone is void, and the bond shall stand single and
unconditional; for it is the folly of the obligor to enter into
such an obligation, from which he can never be released.
If it be to do a thing that is malum in se? the obligation
itself is void; for the whole is an unlawful contract, and
the obligee shall take no advantage from such a transaction.
And if the condition be possible at the time of making it,
and afterwards becomes impossible by the act of God, the
act of law, or the act of the obligee himself, there the
penalty of the obligation is saved; for no prudence or fore-
sight of the obligor could guard against such a contingency.
[341] On the forfeiture of a bond, or its becoming single,
the whole penalty was formerly recoverable at law; but here
the courts of equity interposed, and would not permit a
man to take more than in conscience he ought, viz., his
principal, interest, and expenses, in case the forfeiture
accrued by non-payment of money borrowed, the damages
sustained upon non-performance of covenants, and the lik :>.
And the like practice having gained some footing in tho
courts of law, the statute 4 & 5 Anne, c. 16, at length en-
acted, in the same spirit of equity, that, in case of a bond
conditioned for the payment of money, the payment or
tender of the principal sum due, with interest and costs,
even though the bond be forfeited and a suit commenced
thereon, shall be a full satisfaction and discharge. 5
2. A recognizance is an obligation of record, which a man
4. Bad in itself. ment of money but for manifold other
5. Bond? are in common use in this lawful purposes. They may be exe-
country not only to secure the pay- cutcd not only by individuals, but are
CHAP. XX.] OF ALIENATION BY DEED.
enters into before some court of record or magistrate duly
authorized, with condition to do some particular act, as to
appear at the assizes, to keep the peace, to pay a debt, or
the like. It is in most respects like another bond, the differ-
ence being chiefly this: that the bond is the creation of a
fresh debt or obligation de novo; Q the recognizance is an
acknowledgment of a former debt upon record, the form
whereof is' 'that A B doth acknowledge to owe to our lord
the king, to the plaintiff, to C. D, or the. like, the sum of ten
pounds," which condition to be void on performance of the
thing stipulated; in which case the king, the plaintiff, C D,
&c., is called the recognizee, "is cm cognoscitur/"* as he that
enters into the recognizance is called the cognizor, " is qui
cofjnoscit." 8 This, being either certified to or taken by the
officer of some court, is witnessed only by the record of that
court, and not by the party's seal, so that it is not in strict
propriety a deed, though the effects of it are greater than
a common obligation, being allowed a priority in point oi ?
payment, and binding the lands of the cognizor from the
time of enrolment on record. 9 [342]
There are also other recognizances, of a private kind, in nature of a
statute staple, by virtue of the statute 23 Hen. VIII. c. 6, which have been
already explained, and shown to be a charge upon real property.
3. A defeasance on a bond or recognizance, or judgment
recovered, is a condition which, when performed, defeats
also a common means of securing cor- cree), takes place of a recognizance,
porate debts. The literature upon (Littleton v. Hibbins. Cro. Eliz. 793;
this subject is voluminous. See the Searle v. Lane, 2 Freem. 104; s. c.,
title Bonds, Municipal Bonds, etc., in 2 Vern. 89; Perry v. Phelps, 10 Ves.
Bender's Law Catalogue (1914). 34.) Between decrees and judg-
6. From the beginning or anew. ments, the right to priority of pay-
7. He to whom it is acknowledged, ment is determined by their real pri-
8. He who acknowledge. ority of date, without regard to the
9. Signing is unnecessary at com- legal fiction of relation to the first
mon law. A recognizance has priority day of Term. (Darston v. Earl of
in point of payment, over a common Oxford, 3 P. Wms. 401, n.; Joseph v.
obligation; but a judgment, or decree Mott, Prec. in Cha. 79; Morrice v.
(not being a mere interlocutory de- Bank of England, 3 Swanst. 577.)
OF ALIENATION BY DEED. [BOOK IT.
or undoes it, in the same manner as a defeasance of an
estate before mentioned. 1 It differs only from the common
condition of a bond in that the one is always inserted in
the deed or bond itself, the other is made between the same
parties by a separate, and frequently a subsequent deed.
This, like the condition of a bond, when performed, dis-
charges and disincumbers the estate of the obligor.
1. Which see.
CHAP. XXI.] OF ALIENATION BY RECORD. 311
CHAPTER XXL
OF ALIENATION BY MATTER OF RECORD.
Assurances by matter of record are such as do not en-
tirely depend on the act or consent of tlfe parties them-
selves, but the sanction of a court of record is called in to
substantiate, preserve, and be a perpetual testimony of the
transfer of property from one man to another, or of its
establishment when already transferred. [344] Of this
nature are, 1. Private acts of parliament; 2. The king's
grants; 3. Fines; 4. Common recoveries.
I. Private acts of parliament are, especially of late years,
become a very common mode of assurance. 1
For it may sometimes happen that, by the ingenuity of some and the
blunders of other practitioners, an estate is most grievously entangled
by a multitude of contingent remainders, resulting trusts, springing uses,
executory devises, and the like artificial contrivances, a confusion un-
known to the simple conveyances of the common law, so that it is out
of the power of either the courts of law or equity to relieve the owner.
Or it may sometimes happen that by the strictness or omissions of
family-settlements the tenant of the estate is abridged of some reason-
able power (as letting leases, making a jointure for a wife, or the like),
which power cannot be given him by the ordinary judges either in com-
mon law or equity. Or it may be necessary in settling an estate to se-
cure it against the claims of infants or other persons under legal dis-
abilities who are not bound by any judgments or decrees of the ordinary
courts of justice. In these or other cases of the like kind the transcend-
ent power of parliament is called in to cut the Gordian knot, and by a
particular law, enacted for this very purpose, to unfetter an estate, to
give its tenant reasonable powers, or to assure it to a purchaser against
1. Not in use in this country as a seems desirable. See the subject fully
mere private mode of conveyance, considered in Cooley's Const. Lim.
though the legislature may, where not (7th Ed.), 140-151 and notes,
prohibited by constituional provisions, Statutes may convey public lands
interfere in special cases of persons as in case of grants in aid of railroads
under disability by statutes empow- and for other public purposes, either
ering guardians and other trustees to directly or they" may prescribe rules
eell lands in cases where the general and regulations for passing the title
laws are not applicable or do not ac- or may authorize the issuance of pat-
complish fully all that in some cases ents therefor, etc.
312 OF ALIENATION BY KECORD. [BOOK II.
the remote or latent claims of infants or disabled persons, by settling
a proper equivalent in proportion to the interest so barred. [345]
A law thus made, though it binds all parties to the bill, is yet locked
upon rather as a private conveyance than as the solemn act of the leg-
islature. [346] It is not, therefore, allowed to be a public, but a mere
private statute; it is not printed or published among the other laws of
the session; it hath been relieved against when obtained upon fraudulent
suggestions; it hath been holden to be void if contrary to law and rea-
son; and no judge or jury is bound to take notice of it unless the same
be specially set forth and pleaded to them. It remains, however, en-
rolled among the public records of the nation, to be forever preserved
as a perpetual testimony of the conveyance or assurance so made or
established.
II. The king's grants are also matter of public record.
These grants, whether of lands, honors, liberties, franchises,
or aught besides, are contained in charters or letters patent,
that is, open letters, litcrae patents; so called because they
are not sealed up, but exposed to open view, with the great
seal pendant at the bottom, and are usually directed or ad-
dressed by the king to all his subjects at large. 2
As to the construction of the king's grants when made.
1. A grant made by the king at the suit of the grantee shall
be taken most beneficially for the king and against the party ;
whereas the grant of a subject is construed most strongly
against the grantor. 3 Wherefore it is usual to insert in the
king's grants that they are made, not at the suit of the
grantee, but "ex speciali gratia, certa scientia, et mero mot it
regis"* and then they have a more liberal construction. 2.
A subject 's grant shall be construed to include many things
besides what are expressed, if necessary for the operation
of the grant. Therefore in a private grant of the profits of
land for one year, free ingress, egress, and regress, to cut
2. See preceding note. A patent is See, generally, Hopkins, Real Prop.,
the formal method of conveying pub- 402, 404. Patents for public lands of
lie land entered under the United the several states are executed in the
Sta'es homestead and other laws au- same manner but are signed by the
thorizing private entry of public governor and bear the state seal,
lands. It is signed- by the president 3. This is a general rule of con-
of the United Stated or by some one struction.
authorized to act for him and sealed 4. By special favor, certain knowl-
\vith the seal of the United States, edge and mere motion of the king.
CHAP. XXI.] OF ALIENATION BY RECORD. 313
and carry away those profits, are also inclusively granted.
But the king's grant shall not inure to any other intent
than that which is precisely expressed in the grant. As,
if he grants land to an alien, it operates nothing; for such
grant shall not also inure to make him a denizen, that so
he may be capable of taking by grant. [348] 3. When it
appears from the face of the grant that the king is mistaken
or deceived, either in matter of fact or matter of law, as in
case of false suggestion, misinformation, or misrecital of
former grants; or if his own title to the thing granted be
different from what he supposes; or if the grant be in-
formal; or if he grants an estate contrary to the rules of
law, in any of these cases the grant is absolutely void.
For instance, if the king grants lands to one and his heirs
male, this is merely void; for it shall not be an estate-tail,
because there want words of procreation, to ascertain the
body out of which the heirs shall issue. Neither is it a fee-
simple, as in common grant it would be, because it may
reasonably be supposed that the king meant to give no more
than an estate-tail; the grantee is therefore (if anything)
nothing more than tenant at will. 5
III. A fine of lands and tenements.
1. A fine may be described to be an amicable composition
or agreement of a suit, either actual or fictitious, by leave
of the king or his justices, whereby the lands in question,
become, or are acknowledged to be, the right of one of the
parties. [349] In its original it was founded on an actual
suit, commenced at law for recovery of the possession of
land or other hereditament, and the possession thus gained
by such composition was found to be so sure and effectual
that fictitious actions were, and continue to be every day
commenced, for the sake of obtaining the same security.
The manner in which they should be levied or carried on is as follows:
(1) The party to whom the land is to be conveyed or assured com-
mences an action or suit at law against the other, generally an action
of covenant, by suing out a writ of praecipe, called a writ of covenant,
the foundation of which is a supposed agreement or covenant that the
5. This method of conveyance has
become entirely obsolete in the United
States. See Hopkins, Real Prop., 51.
314 OF ALIENATION BY RECORD. [BOOK IT.
one shall convey the lands to the other, on the breach of which agree-
ment the action is brought. [350] The suit being thus commenced, then
follows,
(2) The licentia concordandi, or leave to agree the suit. For as soon
as the action is brought, the defendant, knowing himself to be in the
wrong, is supposed to make overtures of peace and accommodation to
the plaintiff, who, accepting them, but having, upon suing out the writ,
given pledges to prosecute his suit, which he endangers if he now de-
serts it without license, he therefore applies to the court for leave to
make the matter up.
(3) Next comes the concord, or agreement itself, after leave obtained
from the court, which is usually an acknowledgment from the deforciants,
or those who keep the other out of possession, that the lands in ques-
tion are the right of the complainant. And from this acknowledgment or
recognition of right the party levying the fine is called the cognizor, and
he to whom it is levied the cognizee. [351] This acknowledgment must
be made either openly in the Court of Common Pleas or before the Lord
Chief Justice of that court, or else before one of the judges of that
court, or two or more commissioners in the country, empowered by a
special authority called a writ of dedimus potestatemp which judges and
commissioners are bound by statute, 18 Edw. I. st. 4, to take care that
the cognizors be of full age, sound memory, and out of prison. If there
be any feme-covert among the cognizors, she is privately examined
whether she does it willingly and freely, or by compulsion of her hus-
band.
By these acts all the essential parts of a fine are completed, and if the
cognizor dies the next moment after the fine is acknowledged, provided
it be subsequent to the day on which the writ is made returnable, still
the fine shall be carried on in all its remaining parts; of which the next is
(4) The note of the fine, which is only an abstract of the writ of cov-
enant, and the concord, naming the parties, the parcels of land, and the
agreement. This must be enrolled of record in the proper office, by
direction of the statute 5 Hen. IV. c. 14.
(5) The fifth part is the foot of the fine, or conclusion of it, which
includes the whole matter, reciting the parties, day, year, and place,
and before whom it was acknowledged or levied. Of this there are in-
dentures made or engrossed at the chirographer's office, and delivered
to the cognizor and the cognizee, usually beginning thus, " haec est finalis
concordia, this is the final agreement," and then reciting the whole pro-
ceeding at length. And thus the fine is completely levied at common law.
2. Fines thus leiied are of four kinds: 1. What in our law French is
called a fine " sur cognizance de droit, come ceo que il ad de son done,"
or a fine upon acknowledgment of the right of the cognizee, as that
which he hath of the gift of the cognizor.- [352] 2. A fine " sur cogni-
zance tie droit tantunu" or upon acknowledgment of the right merely,
6. We give the authority.
CHAP. XXI.] OF ALIENATION BY RECORD. 315
not with the circumstance of a preceding gift from the cognizor. .This
is commonly used to pass a reversionary interest, which is in the cog-
nizor. [353] 3. A fine "sur concessit" 7 is where the cognizor, in order
to make an end of disputes, though he acknowledges no precedent right,
yet grants to the cognizee an estate de novo, usually for life or years,
by way of supposed composition. 4. A fine " sur done, grant, et render,"
is a double fine, comprehending the fine sur cognizance de droit come ceo,
&c., and the fine sur concessit, and may be used to create particular
limitations of estate; whereas the fine sur cognizance de droit come ceo,
&c., conveys nothing but an absolute estate, either of inheritance or at
least of freehold.
3. We are next to consider the force and effect of a fine. These prin-
cipally depend, at this day, on the common law and the two statutes,
4 Hen. VII. c. 24, and 32 Hen. VIII. c. 36. The ancient common law with
respect to this point is very forcibly declared by the statute, 18 Edw.
I., in these words: [354] "And the reason why such solemnity is re-
quired in the passing of a fine is this: because the fine is so high a bar,
and of so great force, and of a nature so powerful in itself, that it pre-
cludes not only those which are parties and privies to the fine, and
their heirs, but all other persons in the world who are of full age, out
of prison, of sound memory, and within the four seas the day of the
fine levied, unless they put in their claim on the foot of the fine within
a year and a day;" [which by the statute of 4 Hen. VII. c. 24, was ex-
tended to five years after proclamations made, except as to] feme-co-
verts, infants, prisoners, persons beyond the seas, and such as are not of
whole mind, who have five years allowed to them and their heirs after
the death of their husbands, their attaining full age, recovering their
liberty, returning into England, or being restored to their right mind.
The statute 32 Hen. VIII. c. 36,' declares that a fine levied by any per-
son of full age, to whom or to whose ancestors lands have been en-
tailed, shall be a perpetual bar to them and their heirs claiming by force
of such entail, unless the fine be levied by a woman after the death of
her husband, of lands which were, by the gift of him or his ancestors,
assigned to her in tail for her jointure, or unless it be of lands entailed
by act of parliament or letters-patent, and whereof the reversion be-
longs to the crown. [355] From this view of the common law, regulated
by these statutes, it appears that a fine is a solemn conveyance on rec-
ord from the cognizor to the cognizee, and that the persons bound by a
fine are parties, privies, and strangers.
The parties are either the cognizors or cognizees, and these are im-
mediately concluded by the fine, and barred of any latent right they
might have, even though under the legal impediment of coverture. And,
indeed, as this is almost the only act that a feme-co\ert, or married
woman, is permitted by law to do (and that because she is privately
7. In the grant.
316 OF ALIENATION BY RECOKD. [BOOK II.
examined as to her voluntary consent, which removes the general sus-
picion of compulsion by her husband), it Is therefore the usual and al-
most the only safe method whereby she can join in the sale, settlement,
or incumbrance of any estate.
Privies to a line are such as are any way related to the parties who
levy the fine and claim under them by any right of blood or other right
of representation. Such as are the heirs general of the cognizor, the
issue in tail since the statute of Henry VIII., the vendee, the devisee,
and all others who must make title by the persons- who levied the fine.
Strangers to a fine are all other persons in the world, except only
parties and privies. [356] And these are also bound by a fine, unless,
within five years after proclamations made, they interpose their claim,
provided they are under no legal impediments, and have then a present
interest in the estate. The impediments, as hath before been said, are
coverture, infancy, imprisonment, insanity, and absence beyond sea; and
persons who are thus incapacitated to prosecute their rights have five
years allowed them to put in their claims after such impediments are
removed. Persons also that have not a present but a future interest
only, as those in remainder or reversion, have five years allowed them to
claim in, from the time that such right accrues. And if within that
time they neglect to claim, or (by the statute 4 Anne, c, 16) if they do
not bring an action to try the right within one year after making such
claim, and prosecute the same with effect, all persons whatsoever are
barred of whatever right they may have, by force of the statute of
non-claim.
But, in order to make a fine of any avail at all, it is necessary that the
parties should have some interest or estate in the lands to be affected
by it. Else it were possible that two strangers, by a mere confederacy,
might without any risk defraud the owners by levying fines of their
lands; for if the attempt be discovered, they can be no sufferers, but
must only remain in statu quo:$ whereas if a tenant for life levies a
fine, it is an absolute forfeiture of his estate to the remainder-man or
reversioner, if claimed in proper time. It is not, therefore, to be sup-
posed that such tenants will frequently run so great a hazard; but if
they do, and the claim is not duly made within five years after their
respective terms expire, the estate is for ever barred by it. Yet where a
stranger, whose presumption cannot be thus punished, officiously inter-
feres in an estate which in nowise belongs to him, his fine is of no effect,
and may at any time be set aside (unless by such as are parties or privies
thereunto) by pleading that " partes finis nihit habuerunt." [357] And
even if a tenant for years, who hath only a chattel interest and no free-
hold in the land, levies a fine, it operates nothing, but is liable to be de-
feated by the same plea. Wherefore, when a lessee for years is disposed
to levy a fine, it is usual for him to make a feoffment first to displace
the estate of the reversioner, and create a new freehold by disseisin.
8. In the same state as before.
CHAP. XXL] OF ALIENATION" BY RECORD. 317
IV. Common recoveries 9 were invented by the ecclesi-
astics to elude the statutes of mortmain, and afterwards,
encouraged by the finesse of the courts of law in 12 Edw.
IV., in order to put an end to all fettered inheritances, and
bar" not only estates-tail, but also all remainders and re-
versions expectant thereon.
1. A common recovery is so far like a fine that it is a
suit or action, either actual or fictitious, and in it the lands
are recovered against the tenant of the freehold, which
recovery, being a supposed adjudication of the right, binds
all persons, and vests a free and absolute fee-simple in the
recoveror.
Let us suppose David Edwards to be tenant of the freehold, and de-
sirous to suffer a common recovery in order to bar all entails, remaind-
ers, and reversions, and to convey the same in fee-simple to Francis
Golding. [358] To effect this, Golding is to bring an action against him
for the lands; and he accordingly sues out a writ called a praecipe quod
reddat,i because those were its initial or most operative words when the
law proceedings were in Latin. In this writ the demandant, Golding,
alleges that the defendant Edwards (here called the tenant) has no legal
title to the land, but that he came into possession of it after one Hugh
Hunt had turned the demandant out of it. The subsequent proceedings
are made up into a record or recovery roll, in which the writ and com-
plaint of the demandant are first recited; whereupon the tenant appears
and calls upon one Jacob Morland, who is supposed at the original pur-
chase to have warranted the title to the tenant, and thereupon he prays
that the said Jacob Morland may be called in to defend the title which h?
so warranted. This is called the voucher, vocatio, or calling of Jacob
Morland to warranty, and Morland is called the vouchee. Upon this
Jacob Morland, the vouchee, appears, is impleaded, and defends the
title. Whereupon Golding, the demandant, desires leave of the court to
imparl, or confer with the vouchee in private, which is (as usual) al-
9. See in general, Com. Dig. Re- where the nature and operation of
covery; Bac. Ab. Fines and Recov- common recoveries is stated and ex-
eries; 1 Prest. on Conv., 1 vol. 1 to plained. Common recoveries are en-
200; Cru. Dig. index, Recovery; tirely obsolete in the United States.
Cruise on Fines and Recoveries; Both fines and common recoveries
Fearne's Con. Rem.; Vin. Ab. Recov- have, however, so much general in-
ery; 5 T. R. 107, n.; 2 Saund. 42, n. terest to the scholarly lawyer that
7, and id. index, tit. Recovery; and -space has been here given to their
as to pleading a recovery, see 2 Chitty treatment.
on Pleadings (4th Ed.), 582 to 5S6, 1. Command him to restore.
318 OF ALIENATION BY RECORD. [Boox II.
lowed him. ' And soon afterwards the demandant, Golding, returns to
court, but Morland, the vouchee, disappears, or makes default. Where-
upon judgment is given for the demandant, Golding, now called the re-
coveror, to recover the lands in question against the tenant, Edwards,
who is now the recoveree; and Edwards has judgment to recover of
Jacob Morland lands of equal value, in recompense for the lands so
warranted by him, and now lost by his default, which is agreeable to
the doctrine of warranty. [359] This is called the recompense, or
recovery in value. But Jacob Morland having no lands of his own, being
usually the crier of the court (who, from being frequently thus vouched,
is called the common vouchee}, it is plain that Edwards has only a nomi-
nal recompense for the land so recovered against him by Golding, which
lands are now absolutely vested in the said recoveror by judgment of
law, and seisin thereof is delivered .by the sheriff of the county. So that
this collusive recovery operates merely in the nature of a conveyance
in fee-simple from Edwards, the tenant in tail, to Golding, the purchaser.
The recovery here described is with a single voucher only; but some-
times it is with double, treble, or further voucher, as the exigency of the
case may require. And indeed it is now usual always to have a recovery
with double voucher at the least, by first conveying an estate of free-
hold to any indifferent person against whom the praecipe is brought, and
then he vouches the tenant in tail, who vouches over the common vouchee.
For if a recovery be had immediately against tenant in tail, it bars only
such estate in the premises of which he is then actually seised; whereas
if the recovery be had against another person, and the tenant in tail
be vouched, it bars every latent right and interest which he may have
in the lands recovered. If Edwards, therefore, be tenant of the free-
hold in possession, and John Barker be tenant in tail in rema : nde~,
here Edwards doth first vouch Barker, and then Barker vouches Jacob
Morland, the common vouchee, who is always the last person vouched,
and always makes default; whereby the demandant, Golding, recovers
the land against the tenant, Edwards, and Edwards recovers a recom-
pense of equal value against Barker, the first vouchee, who recovers the
like against Morland, the common vouchee, against whom such ideal
recovery in value is always ultimately awarded.
This supposed recompense in value is the reason why the issue in ta'l
IF held to be barred by a common recovery. [360] For if the recoveree
should obtain a recompense in lands from the common vouchee (which
there is a possibility in contemplation of law, though a very improbable
one, of his doing), these lands would supply the place of those so re-
covered from him by collusion, and would descend to the issue in tail.
This reason will also hold with equal force as to most remainder men
end reversioners, to whom the possibility will remain and revert as a
full recompense for the realty, which they were otherwise entitled to;
but it will not always hold, and therefore, as Pigot says, the judges have
teen even astuti in inventing other reasons to maintain the authority of
recoveries. And in particular it hath been said that though the estate-
CHAP. XXI.] OF ALIENATION BY RECOKD.
tail is gone from the recoveree, yet it is not destroyed, but only transferred,
and still subsists, and will ever continue to subsist (by construction of
law) in thg recoveror, his heirs and assigns; and as the estate-tail so
continues to subsist forever, the remainders or reversions expectant on
the determination of such an estate-tail can never take place.
2. The force and effect of common recoveries may appear from what
has been said to be an absolute bar, not only of all estates-tail, but of
remainders and reversions expectant on the determination of such es-
tates. So that a tenant in tail may by this method of assurance convey
the lands held in tail to the recoveror, his heirs and assigns, absolutely
free and discharged of all conditions and limitations in tail and of all
remainders and reversions. But by statute 34 and 35 Hen. VIII. c. 20,
no recovery had against tenant in tail of the king's gift, whereof the re-
mainder or reversion is in the king, shall bar such estate-tail, or the
remainder or reversion of the crown. And by the statute 11 Hen. VII. c.
20, no woman, after her husband's death, shall suffer a recovery of lands
settled on her by her husband, or settled on her husband and her by
any of his ancestors. [362] And by statute 14 Eliz. c. 8, no tenant for
life of any soft can suffer a recovery so as to bind them in remainder
or reversion. For which reason, if there be tenant for life, with re-
mainder in tail and other remainders over, and the tenant for life is
desirous to suffer a valid recovery, either he or the tenant to the praedpe
by him made must vouch the remainder-man in tail, otherwise the re-
covery is void. But if he does vouch such remainder-man, and he ap-
pears and vouches the common vouchee, it is then good; for if a man be
vouched and appears and suffers the recovery to be had against the ten-
ant to the praedpe, it is as effectual to bar the estate-tail as if he him-
self were the recoveree.
In all recoveries it is necessary that the recoveree or tenant to the
vraecipe, as he is usually called, be actually seised of the freehold, else
the recovery is void; for all actions to recover the seisin of lands must
be brought against the actual tenant of the freehold, else the suit will
lose its effect, since the freehold cannot be recovered of him who has
it not.
Before I conclude this head, I must add a word concerning deeds to
lead or to declare the use of fines and of recoveries. [363] For if they
be levied or suffered without any good consideration, and without any
uses declared, they, like other conveyances, inure only to the use of him
who levies or suffers them. If these deeds are made previous to the
fine or recovery, they are called deeds to lead the uses; if subsequent,
deeds to declare them. As if A, tenant in tail, with reversion to himself
in fee, would settle Ills estate on B for life, remainder to C in tail, re-
mainder to D in fee, that is what by law he has no power of doing effectu-
ally while his own estate-tail is in being. He therefore usually, after
making the settlement proposed, covenants to levy a fine, or, if there
be any intermediate remainders, to suffer a recovery, to E, and d'rects
that the same shall inure to the uses in such settlement mentioned. This
320 OF ALIENATION BY RECORD. [BOOK IT.
is now a deed to lead the uses of the fine or recovery, and the fine when
levied, or recovery when suffered, shall inure to the uses so specific i,
and no other. For though E, the cognizee or recoverer, hath a fee simple
vested in himself by the fine or recovery, yet by the operation of this
deed he becomes a mere instrument or conduit-pipe, seised only to the use
of B, C, and D in successive order, which use is executed immediately
by force of the statute of uses. [364] Or if a fine or recovery be had
without any previous settlement, and a deed be afterwards made between
the parties, declaring the uses to which the same shall be applied, this
will be equally good as if it had been expressly levied or suffered in con-
sequence of a deed directing its operation to those particular uses. For
by statute 4 and 5 Anne, c. 16, indentures to declare the uses of fines and
recoveries, made after the fines and recoveries had and suffered, shall
be good and effectual in law, and the fine and recovery shall inure to
such uses and be esteemed to be only in trust, notwithstanding any
doubts that had arisen on the statute of frauds, 29 Car. II. c. 3, to the
contrary.
CHAP. XXIL] OF ALIENATION BY SPECIAL CUSTOM. 321
CHAPTER XXIL
OF ALIENATION BY SPECIAL CUSTOM. 1
We are next to consider assurances by special custom, obtaining only
in particular places, and relative only to a particular species of real
property. [365] This, therefore, is a very narrow title, being confined to
copyhold lands and snch customary estates as are holden in ancient <!<-
mesnes or in manors of a similar nature, which being of a very peculiar
kind, and originally no more than tenancies in pure or privileged villen-
age, were never alienable by deed, for as that might tend to defeat the
lord of his seigniory, it is therefore a forfeiture of a copyhold. Nor are
they transferable by matter of record, even in the king's courts, but only
in the court baron of the lord. The method of doing this is generally by
surrender, though in some manors, by special custom, recoveries may be
suffered of copyholds; but these differing in nothing material from re-,
coveries of free land, save only that they are not suffered in the kins's
courts, but in the court baron of the manor, I shall confine myself to
conveyances by surrender and their consequences.
Surrender, sursumredditio, is the yielding up of the estate by the tenant
into the hands of the lord for such purposes as in the surrender are ex-
pressed: as, it may be, to the use and behoof of A and his heirs; to the
use of his own will; and the like. The process in most manors is that
the tenant comes to the steward, either in court or, if the custom per-
mits, out of court, or else to two customary tenants of the same manor,
provided there be also a custom to warrant it, and there, by delivering
up a rod, a glove, or other symbol, as the custom directs, resigns into
the hands of the lord, by the hands and acceptance of his said steward,
or of the said two tenants, all his interest and title to the estate, in
trust to be again granted out by the lord to such persons and for such
uses as are named in the surrender and the custom of the manor will
warrant. [366] If the surrender be made out of court, then at the next
or some subsequent court the jury or homage must present and find it
upon their oaths, which presentment is an information to the lord or his
steward of what has been transacted out of court. Immediately upon such
surrender in court, or upon presentment of a surrender made out of
court, the lord by his steward grants the same land again to cestuy que
1. Although we have no copyhold hold; 1 Prest. on Conv. index, Copy-
lands in this country and therefore hold; Watkins on Copyhold, and
this chapter has no application here, Scriven on Copyhold; 2 Saund. in-
still its historical value warrants its dex, tit. Copyhold, and tit. Surren-
preservation in finer type. See in ders; and 1 Thomas Co. Lit. 653 to
general, Com. Dig.: Bac. Ab.; Vin. 676.
Ab. Copyhold; Cru. Dig. index, Copy-
21 ' ' ' > V = .....
322 OF ALIENATION BY SPECIAL CUSTOM. [BOOK II.
use, who is sometimes, though rather improperly, called the surren-
deree, to hold by the ancient rents and customary services, and there-
upon admits him tenant to the copyhold, according to the form and effect
of the surrender, which must be exactly pursued. And this is done by
delivering up to the new tenant the rod, or glove, or the like, in the name
and as the symbol of corporal seisin of the lands and tenements, upon
which admission he pays a fine to the lord according to the custom of
the manor, and takes the oath of fealty.
This method of conveyance is so essential to the nature of a copyhold
estate, that it cannot properly be transferred by any other assurance.
No feoffment of grant has any operation thereupon. If I would ex-
change a copyhold estate with another. I cannot do it by an ordinary deed
of exchange at the common law, but we must surrender to each other's
use, and the lord will admit us accordingly. If I would devise a copy-
hold, I must surrender it to the use of my last will and testament, and
in my will I must declare my intentions and name a devisee, who will
then be entitled to admission. [368] A fine or recovery had of copyhold
lands in the king's court may, indeed, if not duly reversed, alter the
tenure of the lands and convert them into frank fee, which is denned in
.be old book of tenures to be "land pleadable at the common law;" but
upon an action on the case, in the nature of a writ of deceit, brought by
the lord in the king's court, such fine or recovery will be reversed, the
lord will recover his jurisdiction, and the lands will be restored to their
former state of copyhold.
1. A surrender, by an admittance subsequent whereto the conveyance
is to receive its perfection and confirmation, is rather a manifestation
of the alienor's intention than a transfer of any interest in possession.
For, till admittance of cestuy que use, the lord taketh notice of the sur-
renderor as his tenant, and he shall receive the profits of the land to
his own use, and shall discharge all services due to the lord. Yet the
interest remains in him not absolutely, but sub modo; for he cannot
pass away the land to any other, or make it subject to any other in-
cumbrance than it was subject to at the time of the surrender. But no
manner of legal interest is vested in the nominee before admittance. If
he enters, he is a trespasser and punishable in an action of trespass, and
if he surrenders to the use of another, such surrender is merely void,
and by no matter ex post facto 2 ca n be confirmed. Yet though upon the
original surrender the nominee hath but a possibility, it is, however,
such a possibility as may whenever he pleases be reduced to a certainty,
for he cannot either by force or fraud be deprived or deluded of th'e
effects and fruits of the surrender. But if the lord refuse to admit him,
he is compellable to do it by a bill in chancery or a mandamus? and the
surrender can in no wise defeat his grant, his hands being forever bound
from disposing of the land in any other way, and his mouth forever
stopped from revoking or countermanding his own deliberate act. [369]
2. Happening afterwards. 3. We command.
CHAP. XXII.] OF ALIENATION BY SPECIAL CUSTOM. 323
2. As to the presentment: that, by the general custom of manors, is to
be made at the next court baron immediately after the surrender, but by
special custom in some places it will be good, though made at the second
or other subsequent court. And it is to be brought into court by the
same persons that took the surrender, and then to be presented by the
homage, and in all points material must correspond with the true tenor
of the surrender itself. And, therefore, if the surrender be conditional
and the presentment be absolute, both the surrender, presentment, and
admittance thereupon are wholly void, the surrender as being never
truly presented, the presentment as being false, and the admittance as
being founded on such untrue presentment.
3. Admittance is the last stage or perfection of copyhold assurance.
[370] And this is of three sorts: first, as admittance upon a voluntary
grant from the lord; secondly, an admittance upon surrender by the
former tenant; and thirdly, an admittance upon a descent from the an-
cestor.
In admittances, even upon a voluntary grant from the lord, when copy-
hold lands have escheated or reverted to him, the lord is considered as
an instrument. For though it is in his power to keep the lands in his
own hands, or to dispose of them at his pleasure by granting an absolute
fee-simple, a freehold, or a chattel interest therein, and quite to change
their nature from copyhold to socage tenure, so that he may well be
reputed their absolute owner and lord, yet if he will still continue to
dispose of them as copyhold, he is bound to observe the ancient custom
precisely 'in every point, and can neither in tenure nor estate introduce
any kind of alteration, for that were to create a new copyhold; where-
fore in this respect the law accounts him custom's instrument.
In admittances upon surrender of another, the lord is to no intent re-
puted as owner, but wholly as an instrument, and the tenant admitted
shall likewise be subject to no charges or incumbrances of the lord;
icr nis claim to the estate is solely under him that made the surrender.
And as in admittances upon surrender, so in admittances upon descents,
by the death of the ancestor the lord is used as a mere instrument, and
as no manner of interest passes into him by the surrender or the death
of his tenant, so no interest passes out of him by the act of admittance.
[371] And therefore neither in the one case nor the other is any respect
had to the quantity or quality of the lord's estate in "the manor. For
whether he be tenant in fee or for years, whether he be in possession by
right or by wrong, it is not material, since the admittances made by him
shall not be impeached on account of his title, because they are judicial,
or rather ministerial acts, which every lord in possession is bound to
perform.
Admittances, however, upon surrender differ from admittances upon
descent in this, that by surrender nothing is vested in cestuy quc use
before admittance, no more than in voluntary admittances; but upon
dissent the heir is tenant by copy immediately upon the death of his
324 v -'*.j OF ALIENATION BY SPECIAL CUSTOM. [BOOK IT.
ancestor, not indeed to all intents and purposes, for he cannot be sworn
on the homage nor maintain an action in the lord's court as tenant:
but to most intents the law taketh notice of him as of a perfect tenant
of the land instantly upon the death of his ancestor, especially where he
is concerned with any stranger. He may enter into the land before ad-
mittance; may take the profits; may punish any trespass done upon the
ground, nay, upon satisfying the lord for his fine due upon the descent,
may surrender into the hands of the lord to whatever use he pleases.
By the custom of every manor, however, either upon pain of forfeiture
of their copyhold or of incurring some great penalty, the heirs of copy-
holders are enforced to come into court and be admitted according to the
custom, within a short time after notice given of their ancestor's .de-
cease. [372]
CHAP. XXIII.] OF ALIENATION BY DEVISE. 325
CHAPTER XXIII.
OF ALIENATION BY DEVISE.
The last method of conveying real property is by devise,
or disposition contained in a man's last will and testament. 1
[3-73]
It seems sufficiently clear that before the Conquest lands
were devisable by will. But upon the introduction of the
military tenures, the restraint of devising lands naturally
took place as a branch of the feodal doctrine of non-aliena-
tion without the consent of the lord. And by the common
law of England since the Conquest, no estate greater than
for term of years could be disposed of by testament, except
only in Kent and in some ancient burghs, and a few par-
ticular manors where the Saxon immunities by special in-
dulgence subsisted. [374] And though the feodal restraint
on alienations by deed vanished very early, yet this on wills
continued for some centuries after, from an apprehension of
infirmity and imposition on the testator in extremis, which
made such devises suspicious. [375]
But when ecclesiastical ingenuity had invented the doc-
trine of uses as a thing distinct from the land, uses began to
be devised very frequently, and the devisee of the use could
in chancery compel its execution. But when the statute of
uses had annexed the possession to the use, these uses, being
now the very land itself, became no longer devisable; which
might have occasioned a great revolution in the law of devises,
had not the statute of wills been made about five years after,
viz., 32 Hen. VIII. c. 1, explained by 34 Hen. VIII. c. 5, which
enacted that all persons being seised in fee-simple (except
feme-coverts, 2 infants, idiots, and persons of non-sane mem-
ory) might by will and testament in writing devise to any
other person, except to bodies corporate, two thirds of their
lands, tenements, and hereditaments, held in chivalry, and
1. For definitions, see Schouler on 2. This disability has been removed
Wills & Administration, introductory by statute in some of the states. Con-
chapter, 1-3. suit the local statutes.
326 OF ALIENATION BY DKVISE [Booic IT.
the whole of those held in socage; which now, through the
alteration of tenures by the statute of Charles II., amounts
to the whole of their landed property except their copyhold
tenements.
Corporations were excepted in these statutes to prevent
the extension of gifts in mortmain ; but now, by construction
of the statute 43 Eliz. c. 4, it is held that a devise to a cor-
poration for a charitable use is valid, as operating in the
nature of an appointment rather than of a bequest. [376]
With regard to devises in general, experience soon
showed how difficult and hazardous a thing it is, even in
matters of public utility, to depart from the rules of the
common law. Innumerable frauds and perjuries were
quickly introduced by this parliamentary method of in-
heritance; for so loose was the construction made upon this
act by the courts of law, that bare notes in the handwriting
of another person were allowed to be good wills within the
statute. To remedy which the statute of frauds and per-
juries, 29 Car. II. c. 3, 3 directs that all devises of lands and
tenements shall not only be in writing [printing will suffice],
but signed 4 by the testator or some other person in his
presence and by his express direction, 5 and be subscribed
in his presence by three or four credible witnesses. 53 - And
a solemnity nearly similar is requisite for revoking a devise
by writing, though the same may be also revoked by burn-
ing, cancelling, tearing, or obliterating thereof by the de-
visor, 6 or in his presence and with his consent; as likewise
3. This statute has furnished a is a sufficient signing. Schouler on
model which has been followed more Wills, 146, 150 and notes.
or less closely in probably all the 5. The legal effect of this is the
states. The same formalities, as a same as if written by the testator
rule, are required in a testament of himself. Schouler on Wills, 148.
chattels in this country as in the case Xo seal is required in the absence
of devises of land and tenements. of a special statute requiring a seal.
4. Some of the statutes require the 5a. In this country some of the
will to be subscribed, that is, signed states require only two witnesses,
at the end of the will. Whatever the Consult the local statutes,
provisions it is good practice to have 6. Provided it is done with the in-
the testator attach his signature to tention to revoke the will. Schouler
every page of the will as well as at on Wills, 188-198 and notes.
the end. Signature by mark or cross
CHAP. XXIII.] OF ALIEXATIOX BY DEVISE. 327
impliedly, by such a great and entire alteration in the cir-
cumstances and situation of the devisor as arises from marr
riage and the birth of a child. 7
In the construction of this last statute, it has been ad-
judged that the testator's name written with his own hand
at the beginning of his will, as: "I, John Mills, do make
this my last will and testament: " is a sufficient signing,
without any name at the bottom, though the other is the
safer way. 8 [377] It has also been determined that, though
the witnesses must all see the testator sign, or at least
acknowledge the signing, yet they may do it at different
times. But they must all subscribe their names as wit-
nesses in his presence, lest by any possibility they should
mistake the instrument. 9 And in one case, determined by
the Court of King's Bench, the judges were extremely strict
in regard to the credibility, or rather the competency, of the
witnesses, for they would not allow any legatee, nor by
consequence a creditor, where the legacies and debts were
charged on the real estate, to be a competent witness to the
devise, as being too deeply concerned in interest not to
wish the establishment of the will, for, if it were established,
he gained a security for his legacy or debt from the real
estate, whereas otherwise he had no claim but on the per-
sonal assets. This occasioned the statute 25 Geo. II. c. 6,
which restored both the competency and the credit of such
legatees, by declaring void all legacies given to witnesses,
7. This rule has been adopted in operative only after the death of the
many states though not in all. See testator, a mistake in this respect
Scliouler on Wills, 206-209 and notes. cannot be remedied.
8. A different construction would Under the statute of Car. 2, puoli-
prevail where the statute iises the cation was not necessary and it ap-
word "subscribed." See note, supra. pears to be settled both in England
9. The method of execution includ- and the United States that independ-
ing the witnessing the testator sign ent of statutory provision requiring
and the number of and the manner publication, a will may be duly exe-
in which the witnesses shall attest cuted by a testator without any for-
the will, are all variously prescribed mal announcement of a testamentary
"by statute in the several states. The purpose. Schouler on Wills, 154, 15.6,
provisions of the statute should be 157 and notes; Jarman on Wills (5th
fully complied with: for, as a will is Ed.), p. *80; Id. (6th Ed.), p. *96.
328 OF ALIENATION BY DEVISE [BOOK II.
and thereby removing all possibility of their interest affect-
ing their testimony. 1 The same statute likewise established
the competency of creditors, by directing the testimony of
all such creditors to be admitted, but leaving their credit
(like that of all other witnesses) to be considered, on a view
of all the circumstances, by the court and jury before whom
such will shall be contested. [378] And in a much later
case the testimony of three witnesses who were creditors was
held to be sufficiently credible, though the land was charged
with the payment of debts, and the reasons given on the
former determination were said to be insufficient.
Another inconvenience was found to attend this new
method of conveyance by devise, in that creditors by bond,
and other specialties which affected the heir, provided he
had assets by descent, were now defrauded of their securities,
not having the same remedy against the devisee of their
debtor. To obviate which, the statute 3 & 4 W. & M. c. 14,
hath provided that all wills and testaments, limitations,,
dispositions, and appointments of real estates, by tenants in
fee-simple or having power to dispose by will, shall (as-
against such creditors only) be deemed to be fraudulent and
void, and that such creditors may maintain their actions
jointly against both the heir and the devisee. 2
A will of lands made by the permission and under the
control of these statutes is considered by the courts of law
not so much in the nature of a testament as of a conveyance
declaring the uses to which the land shall be subject: with
this difference, that in other conveyances the actual sub-
scription of the witnesses is not required by law, though
it is prudent for them so to do, in order to* assist their
1. As to the competency of attest- 2. In this country the order ol pro-
ing witnesses, see the local statutes, cedure in the payment of debts and
In most of the states witnesses to claims against an estate is, as a rule,
wills are by statute rendered incap- definitely settled by statute whether
able of taking any beneficial interest the estate be testate or intestate, and
under the will, unless there be the the claims of creditors of the deceased,
statutory number of competent wit- whether by bond or otherwise, are
nesses without them. Schouler on prior to those of legatees and devisees.
Wills, 174; 1 Jarman on Wills, 71, Consult local statutes.
Bigelow's note; Stim. Am. Stat. Law,
2C50.
CHAP. XXIII. ] Or ALIENATION BY DEVISE. 329
memory when living, and to supply their evidence when
dead; but in devises of land such subscription is now abso-
lutely necessary by statute, in order to identify a convey-
ance which in its nature can never be set up till after the
death of the devisor. And upon this notion, that a devise
affecting 1 lands is merely a species of conveyance, is founded
this distinction between such devises and testaments of per-
sonal chattels; that the latter will operate upon whatever
the testator dies possessed of, the former only upon such
real estate as were his at the time of executing and publish-
ing his will. Wherefore no after-purchased lands will pass
under such devise unless, subsequent to the purchase or
contract, the devisor republishes his will. 3 [379]
General rules and maxims for the construction and ex-
position of common assurances.
1. That the construction be favorable, and as near the
minds and apparent intents of the parties, as the rules of
law will admit. 4 For the maxims of law are, that "" verba
intentioni decent inservire;" 5 and "benigne inter pretamut
chartas, propter simpUcitatem laicorum"* And therefore
the construction must also be reasonable, and agreeable to
common understanding.
2. That quoties in verbis nulla est ambiguitas ibi nulla
expositio contra verba fienda est, 7 but that where the inten-
tion is clear, too minute a stress be not laid on the strict and
precise signification of words; nam qui liacrct in lit era,
Jiacret in cortice. 8 Therefore, by a grant of a remainder a
reversion may well pass, and e cotiverso. 9 And another
3. In some of the states real prop- 5. Words ought to serve the inten-
crty acquired after the execution of tion.
the will, will pass by such will, if 6. We interpret deeds liberally on
such appears to be the intention of account of the simplicity of the laity,
the testator. In others the common Co. Litt., 36a; Broom's Leg. Max.,
law rule to the contrary has been fol- *48.
lowed See Hopkins, Real Prop., 474 7. When there is no ambiguity in
-and notes; 1 Stim. Am. St. Law, the words, there should be no con-
2634. struction contrary to the words.
4. This is the universal and car- 8. For whoever sticks to the letter,
dinal rule of construction. Schouler sticks to the bark. Co. Litt., 283b;
on Wills, 228. Broom's Leg. Max., *611.
9. Conversely.
330 OF ALIENATION BY DEVISE [BooK IT.
maxim of law is, that "mala grammaticd non vitiat
<-li(irtam;"* neither false English nor bad Latin will destroy
a deed.
3. That the construction be made upon the entire deed,
jind not merely upon disjointed parts of it. "Nam ex antc-
ccdcntibus et conseqncntiltus fit optima inter prctatio."'
And therefore that every part of it be (if possible) made to
take effect, and no word but what may operate in some shape
or other. "Sam rerba debcnt intelligi cum cffectu, ut rex
magis valcat quern pereat. 3 [380]
4. That the deed be taken most strongly against him that
is the agent or contractor, and in favor of the other party.
"Verb a fortius accipuntur contra proferentem/'* As, if
tenant in fee-simple grants to any one an estate for life,
generally it shall be construed an estate for the life of the
grantee. But here a distinction must be taken between
an indenture and a deed-poll ; for the words of an indenture,
executed by both parties, are to be considered as the words
of them both; for, though delivered as the words of one
party, yet they are not his words only, because the other
party hath given his consent to every one of them. But in
a deed-poll executed only by the grantor, they are the words
of the grantor only, and shall be taken most strongly
against him. And in general, this rule, being a rule of
some strictness and rigor, is the last to be resorted to, and
is never to be relied upon but where all other rules of ex-
position fail.
5. That if the words will bear two senses, one agreeable
to and another against law, that sense be preferred which
is most agreeable thereto. As if tenant in tail lets a lease
to have and to hold during life generally, it shall be con-
strued to be a lease for his own life only, for that stands
with the law; and not for the life of the lessee, which is
beyond his power to grant.
1. Incorrect grammar does not viti- with effect that the matter may be-
a'.e a deed. strengthened rather than perish.
2. The best interpretation is made 4. Words are to be construed more
from both the antecedent and follow- strongly against the one using them,
ing parts. Co. Litt., 3Ca; Broom's Leg. Max.,.
3. Words ought to be understood *529.
CHAP. XXIII.] OF ALIENATION BY DEVISE.
331
6. That in a deed if there be two clauses so totally re-
pugnant to each other that they cannot stand together, the
first shall be received and the latter rejected: wherein it
differs from a will ; for there, of two such repugnant clauses
the latter shall stand. [381] Which is owing to the differ-
ent natures of the two instruments, for the first deed and
the last will are always most available in law. 5 Yet in both
cases we should rather attempt to reconcile them.
7. That a devise be most favorably expounded to pursue,
if possible, the will of the devisor, who for want of advice
or learning may have omitted the legal or proper phrases;
and therefore many times the law dispenses with the want
of words in devises that are absolutely requisite in all other
instruments. 6 Thus, a fee may be conveyed without words
5. Such was held to be the law in
the time of Lord Coke. (See accord-
ingly 6 Ves. 102, 5 Ves. 247, 407.)
But now where the same estate is de-
vised to A. in fee, and afterwards to
B. in fee in the same will, they are
construed to take the estate as joint-
tenants, or tenants in common, ac-
cording to the limitations of the es-
tates and interests devised. 3 Atk.
493; Harg. Co. Litt., 112b, n. 1.
6. In the celebrated case of Perrin
v. Blake. Burr. 2579, the question was,
whither the manifest intention of the
testator to give to the first taker an
estate for life only ought to prevail,
or that he should have an estate-tail
from the construction which would
have clearly been put upon the same
words if they had been used in a deed?
The devise in substance was as fol-
lows: The testator declared, it is my
intent and meaning, that none of my
children should sell or dispose of my
estate for longer term than his own
life; and to that intent I give my ?on
John Williams my estate during his
natural life, remainder to my brother-
in-law during the life of my son John
Williams (the design of that being to
support the contingent remainder);
remainder to the heirs of the body of
John Williams. Lord Mansfield and
two other judges of the court of king's
bench determined, that John Williams
took an estate for life only; but upon
a writ of error to the exchequer-cham-
ber, the decision was reversed, and
six out of eight of the other judges
held, that John Williams took an es-
tate-tail, which of consequence gave
him an absolute power of selling or
disposing of the estate as he pleased.
It has since been observed by a
learned judge, that as one of the
judges held that John Williams took
an estate-tail, because he was of opin-
ion that such might be presumed to
be the testator's intention, no argu-
ment in future can be drawn from
this case; because one-half of the
judges relied upon the ground of in-
tention alone. It is the first and great
rule in the exposition of wills, and to
which all other rules must bend, that
the intention of the testator, expressed
in his will, shall prevail, provided it
be consistent ivith the rules of law;
332
OF ALIENATION BY DEVISE
[BOOK IT.
of inheritance, and an estate-tail without words of pro-
creation. By a will also an estate may pass by mere impli-
cation, without any express words to direct its course. As
where a man devises lands to his heir at law after the
death of his wife : here, though no estate is given to the wife
in express terms, yet she shall have an estate for life by
implication, for the intent of the testator is clearly to post-
pone the heir till after her death, and if she does not take
it, nobody else can. So also where a devise is of black-acre
to A and of white-acre to B in tail, and if they both die
without issue, then to C in fee: here A and B have cross-
remainders by implication, and on the failure of cither's issue
the other or his issue shall take the whole, and C's remainder
over shall be postponed till the issue of both shall fail. And
in general, where any implications are allowed, they must be
such as are necessary (or at least highly probable), and not
merely possible implications. [382] And herein there is no
distinction between the rules of law and of equity; for the
will, being considered in both courts in the light of a limita-
tion of uses, is construed in each with equal favor and be-
nignity, and expounded rather on its own particular circum-
stances than by any general rules of positive law.
that is, provided it can be effectuated
consistently with the limits and
bounds which the law prescribes. To
argue that the intention shall be frus-
trated by a rule of construction of
certain words, is to say that the in-
tention shall be defeated by the use
of the very words which the testator
has adopted as the best to communi-
cate his intention, and of which the
sense is intelligible to all mankind.
See, also, Co. Litt., 376b, note 1, by
Mr. Butler; 4 Ves. Jr. 412; 2 Ves.
248; 3 Bro. C. C. 61.
CHAP. XXIV.] OF THINGS PERSONAL. 333
CHAPTER XXIV.
OF THINGS PERSONAL.
Under the name of things personal are included all sorts
of things movable, which may attend a man's person wher-
ever he goes. [384]
But things personal by our law do not only include things
movable, but also something more, the whole of which is
comprehended under the general name of chattels, which, Sir
Edward Coke says, is a French word signifying goods. [385]
The appellation is in truth derived from the technical Latin
word catalla, which primarily signified only beasts of. hus-
bandry, or (as we still call them) cattle, but in its secondary
sense was applied to all movables in general. In the Grand
Coustumicr of Normandy a chattel is described as a mere
movable, but at the same time it is set in opposition to a fief
or feud; so that not only goods, but whatever was not a
feud, were accounted chattels. And it is in this latter,
more extended, negative sense that our law adopts it; the
idea of goods, or movables only, being not sufficiently com-
prehensive to take in everything that the law considers as
a chattel interest. 1 [386] For since, as the commentator
on the Coustumier observes, there are two requisites to make
a fief or heritage : duration as to time, and immobility with
regard to place; whatever wants either of these qualities is
not, according to the Normans, an heritage, or fief ; or, accord-
ing to us, is not a real estate: the consequence of which in
both laws is that it must be a personal estate, or chattel.
Chattels, therefore, are distributed by the law into two
kinds, chattels real, and chattels personal.
1. Chattels real are such as concern, or savor of, the
realty, as terms for years of land, wardships in chivalry
(while the military tenures subsisted), the next presentation
to a church, estates by a statute-merchant, statute-staple,
elegit, or the like. 2 And these are called real chattels, as
1. See 1 Bouvicr Law Diet. Chat- 2. See 1 Bouvier Law Diet. A box
tels; Co. Litt., 118. with the title deeds of land is said to
334 OF THINGS PERSONAL. [BOOK II.
being interests issuing out of or annexed to real estates, of
which they have one quality, viz., immobility, which denomi-
nates them real, but want the other, viz., a sufficient legal,
indeterminate duration, and this want it is that constitutes
them chattels. The utmost period for which they can last
is fixed and determinate, either for such a space of time cer-
tain, or till such a particular sum of money be raised out of
such a particular income, so that tliey are not equal in the
eye of the law to the lowest estate of freehold, a lease for
another's life; their tenants were considered, upon feodal
principles, as merely bailiffs or farmers, and the tenant of
the freehold might at any time have destroyed their interest
till the reign of Henry VIII.
2. Chattels personal are, properly and strictly speaking,
thing's movable, which may be annexed to or attendant on
the person of the owner, and carried about with him from
one part of the world to another. [387] Such are animals,
household stuff, money, jewels, corn, garments, and every-
thing else that can properly be put in motion and trans-
ferred from place to place. 3
be a chattel real in England. See 1 any article is a chattel or not is
Bouvier Law Diet. Chattels; Co. Litt., whether on the death of the owner it
118; 2 Kent Com. 278; Ewell on Fix- passes to his .administrator or exec-
tures (2d Ed.), *230. utor; if so, it is a chattel interest.
3. The real criterion as to whether
CHAP. XXV.] OF PROPERTY IN THINGS PERSONAL. 335
CHAPTER XXV.
OF PROPERTY IX THINGS PERSONAL.
Property in chattels personal may be either in possession,
which is where a man hath not only the right to enjoy, but
hath the actual enjoyment of the thing, or else it is in
action, where a man hath only a bare right without any
occupation or enjoyment. [389] And of these the former,
or property in possession, is divided into two sorts: an abso-
lute and a qualified property.
I. Property in possession absolute is where a man hath
solely and exclusively the right and also. the occupation of
any movable chattels, so that they cannot be transferred
from him, or cease to be his, without his own act or default.
Such may be all inanimate things, as goods, plate, money,
jewels, implements of war, garments, and the like; such also
may be all vegetable productions, as the fruit or other parts
of a plant when severed from the body of it, or the whole
plant itself when severed from the ground.
Animals are distinguished into such as are domitae and
such as are ferae naturae: some being of a tame, and others
of a wild disposition. [390] In such as are of a nature
tame and domestic (as horses, kine, sheep, pouHry, and the
like), a man may have as absolute a property as in any
inanimate beings. The .stealing or forcible abduction of
such property as this is also felony, for these are things of
intrinsic value, serving for the food of man, or else for the
uses of husbandry. But in animals ferae naturae a man
can have no absolute property. 1
Of all tame and domestic animals, the brood belongs to
the owner of the dam or mother, the English law agreeing
with the civil, that "parties sequitur r$ntrem" 2 in the brute
creation, though for the most part in the human species it
disallows that maxim. And therefore in the laws of England
as well as Rome, " si equam meam equus tuns praegnantcm
fecerit, non cst tnum sed me nm quod natum cst." s And for
1. Sre post, p. *391, note. 3. If my mare becomes witli foal by
2. The offspring follows the dam. your horse, the offspring is not yours
336 \1 OF PROPERTY IN THINGS PERSONAL [
this Puffendorf gives a sensible reason, not only because the
male is frequently unknown, but also because the dam, during
the time of her pregnancy, is almost useless to the proprietor,
and must be maintained with great expense and care; where-
fore as her owner is the loser by her pregnancy, he ought to
be the gainer by her brood. An exception to this rule is in
the case of young cygnets, which belong equally to the owner
of the cock and hen, and shall be divided between them. But
here the reasons of the general rule cease, and " cessante
ratione cessat et ipsa lex;"* for the male is well known by
his constant association with the female; and for the same
reason the owner of the one doth not suffer more disadvant-
age during the time of pregnancy and nurture than the owner
of the other. [391]
II. Other animals that are not of a tame and domestic
nature are either not the objects of property at all, or else
fall under our other division, namely, that of qualified, lim-
ited, or special property, which is such as is not in its nature
permanent, but may sometimes subsist and at other times
not subsist. In discussing which subject I shall in the first
place show how this species of property may subsist in such
animals as are ferae naturae, or of a wild nature; and then
ho\v it may subsist in any other things when under particular
circumstances.
First, then, a man may be invested with a qualified, but
not an absolute property in all creatures that are ferae
naturae, either per industriam, propter impotentiam, or
propter privilegium. 5
1. A qualified property may subsist in animals ferae
naturae per industriam hominis by a man's reclaiming and
making them tame by art, industry, and education, or by
so confining them within his own immedite power that they
cannot escape and use" their natural liberty. 6 Our law ap-
but mine. But it is otherwise in the 5. By industry, by weakness or by
case of a bailment for hire; for dur- privilege.
ing the period of hiring the hirer shall 6. See, generally, Ewell on Fixtures
have th'e increase. Concklin v. Ha- (2d Ed., 1905), *241 and notes, where
vens, 12 John. 314. the cases are fully collected.
4. The reason ceasing, the law it-
sdf ceases.
CHAP. XXV.] OF PROPERTY ix THINGS PERSONAL. 337
prebends the most obvious distinction to be between such
animals as we generally see tame, and are therefore seldom,
if ever, found wandering at large, which it calls domitae
naturae, and such creatures as are usually found at liberty,
which are therefore supposed to be more emphatically ferae
naturae, though it may happen that the latter shall be some-
times tamed and confined by the art and industry of man.
[392] Such as are deer in a park, hares or rabbits in an
enclosed warren, doves in a dove-house, pheasants or part-
ridges in a mew, hawks that are fed and commanded by their
owner, and fish in a private pond or in trunks. These are
no longer the property of a man than while they continue in
his keeping or actual possession; but if at any time they
regain their natural liberty, his property instantly ceases, 7
unless they have animum revertendi* which is only to be
known by their usual custom of returning. The law there-
fore extends this possession farther than the mere manual
occupation, for my tame hawk that is pursuing his quarry
in my presence, though he is at liberty to go where he pleases,
is nevertheless my property, for he hath animum revcrtendi.
So are my pigeons that are flying at a distance from their
home (especially of the carrier kind), and likeAvise the deer
that is chased out of my park or forest, and is instantly pur-
sued by the keeper or forester; all of which remain still in
my possession, and I still preserve my qualified property in
them. But if they stray without my knowledge, and do not
return in the usual manner, it is then lawful for any stranger
to take them. But if a deer, or any wild animal reclaimed,
hath a collar or other mark put upon him, and goes and re-
turns at his pleasure, or if a wild swan is taken and marked
and turned loose in the river, the owner's property in him
still continues, and it is not lawful for any one else to take
him ; but otherwise if the deer has been long absent without
returning, or the swan leaves the neighborhood. Bees also
are ferae naturae; but when hived and reclaimed a man may
have a qualified property in them by the law of nature as well
as by the civil law. And to the same purpose, not to say in
7. Cooley on Torts (Students' Ed., 8. The disposition to return.
1907), 413 and notes.
22
338 OF PROPERTY IN THINGS PERSONAL. [BOOK IT.
the same words, with the civil law, speaks Bracton. Occu-
pation, that is, hiving or including them, gives the property
in bees; for though a swarm lights upon my tree, I have no
more property in them till I have hived them than I have in
the birds which make their nests thereon, and therefore if
another hives them he shall be their proprietor. 9 But a
swarm which fly from and out of my hive are mine so long
as I can keep them in sight, and have power to pursue them ;
and in these circumstances no one else is entitled to take
them. 1 [393] But it hath been also said that with us the
only ownership in bees is ratione soli; and the charter of
the forest which allows every freeman to be entitled to the
honey found within his own woods, affords great counte-
nance to this doctrine, that a qualified property may be had
in bees, in consideration of the property of the soil whereon
they are found.
In all these creatures reclaimed from the wildness of their
nature, the property is not absolute, but defeasible, a prop-
erty that may be destroyed if they resume their ancient wild-
ness and are found at large. For if the pheasants escape
from the mew, or the fishes from the trunk, and are seen
wandering at large in their proper element, they become
ferae naturae again, and are free and open to the first occu-
paat that hath ability to seize them. But while they thus
continue my qualified or defeasible property, they are as
much under the protection of the law as if they were abso-
lutely and indefeasibly mine, and an action will lie against
any man that detains them from me or unlawfully destroys
them. It is also as much felony by common law to steal
such of them as are fit for food as it is to steal tame animals ; 2
but not so if they are only kept for pleasure, curiosity, or
whim, as dogs, bears, cats, apes, parrots, and singing-birds,
because their value is not intrinsic, but depending only on
the caprice of the owner, though it is such an invasion of
property as may amount to a civil injury, and be redressed
9. The right to cut the tree is in Fisher v. Steward, 1 Smith (N. H.),
the own; r of the soil and therefore 60, 61.
such property as wild bees are suscep- 1. Cooley on Torts, 414.
tible of is in him also. Cooley on 2. See Criminal Law, post.
Torts (Students' Ed.), 413 and note;
CHAP. XXV.J OF PROPERTY IN THINGS PERSONAL. 339
by a civil action. [394] Yet to steal a reclaimed hawk
is felony both by common law and statute, which seems to
be a relic of the tyranny of our ancient sportsmen. And
among our elder ancestors, the ancient Britons, another spe-
cies of reclaimed animals, viz., cats, were looked upon as
creatures of intrinsic value, and the killing or stealing one
was a grievous crime, and subjected the offender to a fine,
especially if it belonged to the king's household, and was the
custos horrei regii, for which there was a -very peculiar
forfeiture.
2. A qualified property may also subsist with relation to
animals ferae naturae, ratione impotentise, on account of
their own inability. 3 As when hawks, herons, or other
birds build in my trees, or coneys or other creatures make
their nests or burrows in my land, and 'have young ones
there, I have a qualified property in those young ones till
such time as they can fly or run away, and then my prop-
erty expires; but till then it is in some cases trespass, and
in others felony, for a stranger to take them away. For
here, as the owner of the land has it in his power to do
what lie pleases with them, the law therefore vests a prop-
erty in him of the young ones, in the same manner as it
does of the old ones if reclaimed and confined, for these
cannot through weakness, any more than the others through
restraint, use their natural liberty and forsake him.
3. A man may, lastly, have a qualified property in ani-
mals ferae naturae, propter privilegium, that is, lie may
have the privilege of hunting, taking, and killing them in
exclusion of other persons. 4 [395] Here he has a transient
property in these animals, usually called game, so long as
they continue within Kis liberty, and may restrain any
stranger from taking them therein; but the instant they
depart into another liberty this qualified property ceases. 5
3. See, generally, Ewell'on Fixtures land of another, the property in him
(2d Ed.), *241 and notes. is in the owner of the land. Under
4. See Ewell on Fixtures (2d Ed.), the civil law the property passed to
*241. the captor and such is believed to ba
5. "As regards beasts of the chase, the recognized rule in America even
the English rule is that if the hunter when the capture has been effected by
shoots and captures a beast on the means of a trespass on another's
340 Or PROPERTY IN THINGS PERSONAL. [BOOK IT.
The manner in which this privilege is acquired will be
shown in a subsequent chapter.
The qualified property which we have hitherto considered
extends only to animals ferae naturae when either re-
claimed, impotent, or privileged. Many other things may
also be the objects of qualified property. It may subsist in
the very elements of fire or light, of air and of water. A-
man can have no absolute permanent property in these, as
he may in the earth and land, since these are of a vague
and fugitive nature, and therefore can admit only of a
precarious and qualified ownership, which lasts so long as
they are in actual use and occupation, but no longer. If
a man disturbs another and deprives him of the lawful
enjoyment of these, if one obstructs another's ancient win-
dows, 6 corrupts the air of his house or gardens, fouls his
water, or unpens and lets it out, or if he diverts an ancient
watercourse that used to run to the other's mill or meadow,
the law will animadvert hereon as an injury, and protect
the party injured in his possession. But the property in
them ceases the instant they are out of possession, for when
no man is engaged in their actual occupation they become
again common, and every man has an equal right to appro-
priate them to his own use.
Property may also be of a qualified or special nature, on
account of the peculiar circumstances of the owner, whon
the thing itself is very capable of absolute ownership [396] ;
as in case of bailment, 7 or delivery of goods to another per-
son for a particular use, as to a carrier to convey to Lon-
don, to an innkeeper to secure in his inn, or the like. Hero
there is no absolute property in either the bailor or the
bailee, the person delivering or him to whom it is delivered ;
for the bailor hath only the right and not the immediate
possession, the bailee hath the possession and only a tem-
porary right. But it is a qualified property in them both,
and each of them is entitled to an action in case the goods
land." Cooley on Torts (Students' 6. This doctrine is not deemed ap-
Kd.)i 414 and cases cited. See, also, plicable to this country. Parker v.
Evvell on Fixtures (2d Ed.), *241, Foote, 19 Wend. 309.
242 and notes. 7. See post, *451.
CHAP. XX\ 7 .] OF PROPERTY ix THINGS PERSONAL. 341
be damaged or taken away: the bailee on account of his
immediate possession, the bailor because the possession of
the bailee is, immediately, his possession also. So also in
case of goods pledged or pawned upon condition either to
repay money or otherwise: both the pledger and pledgee
have a qualified, but neither of them an absolute, property
in them. The pledger's property is conditional, and de-
pends upon the performance of the condition of repayment,
&c., and so too is that of the pledgee, which depends upon
its non-performance. The same may be said of goods dis-
treined for rent or other cause of distress, which are in the
nature of a pledge, and are not at the first taking the abso-
lute property of either the distreinor or party distreined
upon, but may be redeemed, or else forfeited by the sub-
sequent conduct of the latter. But a servant who hath the
care of his master's goods or chattels, as a butler of plate,
a shepherd of sheep, and the like, hath not any property
or possession, either absolute or qualified, but only a mere
charge or oversight. 8
We will proceed next to take a short view of the nature
of property in action, or such where a man hath not the
occupation, but merely a bare right to occupy the thing in
question, the possession whereof may, however, be recov-
ered by a suit or action at law, from whence the thing so
recoverable is called a thing, or chose in action. [397]
Thus money due on a bond is a chose in action, for a prop-
erty in the debt vests at the time of forfeiture mentioned in
the obligation, but there is no possession till recovered by
course of law. If a man promises or covenants with me
to do any act, and fails in it, whereby I suffer damage, the
recompense for this damage is a chose in action; for though
a right to some recompense vests in me at the time of dam-
8. The common law actions of tro- see the leading case of Armory v.
ver, replevin and trespass are posses- Jjelamire, 1 Strange, 504; 1 Smith's
sory in their nature, i. e., founded Lead. Cases, *470 et seq., and cases
upon a right of possession. The collected in the notes. The subject will
bailor, not being in possession, may be further considered under the head
maintain case for an injury to his of Pleading, post, in this volume and
in'erest in the nature of a reversion. also in volume 2 of this series.
As to possessory actions in general,
342 OF PROPERTY IN THINGS PERSONAL. [Boo K II.
age done, yet what and how large such recompense shall
be can only be ascertained by verdict, and the possession
can "only be given me by legal judgment and execution. In
the former of these cases the student will observe that the
property or right of action depends upon an express con-
tract or obligation to pay a stated sum, and in the latter it
depends upon an implied contract that if the covenantor
does not perform the act he engaged to do, he shall pay
me the damages I sustain by this breach of covenant. And
hence it may be collected that all property in action depends
entirely upon contracts, either express or implied, which
are the only regular means of acquiring a chose in action.
And having thus distinguished the different degree or <jtin-
titij of dominion or property to which things personal are
subject, we may add a word or two concerning the time of
their enjoyment and the number of their owners.
First, as to the time of enjoyment. [398] By the rules
of the ancient common law there could be no future prop-
erty to take place in expectancy, created in personal goods
and chattels. But yet in last wills and testaments such
limitations of personal goods and chattels, in remainder af-
ter a bequest for life, were permitted. And therefore if a
man either by deed or will limits his books or furniture'
to A for life, with remainder over to B, this remainder is
good. But where an estate- tail in things personal is given
9. Choses in action are either ex is assignable, but not mere personal
contractu or ex dclicto, i. e., arising torts as for slander or assault and
out of torts or wrongs, though the battery.
term is sometimes used in the nar- Prior to 'the statute 3 & 4 \Vm. 4,
rower sense of the text. By the com- c. 42, see. 2, the remedy for a tort to
mon law choscs in action were not the property of another, real or per-
ns^ignable, using the term in the com- sonal, by an action in form ex dclicto,
711OH law sense of a transfer such as such as trespass, trover or case for
enables the assignee to sue in his own waste, etc., could not have been en-
name. But latterly the assignee could forced against the personal represen-
suo in the name of Ihe assignor for tations of the tortfeasor; and even
the use of the assignee even at law; now no action can be maintained
and now by statute he may sue in against them for a personal tort com-
many states in his own name. As to mitted by him. See Broom's Legal
torts the distinction is taken that a Maxims, *811, 820. (Actio personalia
tort which relates to property and mnritur cum persona), a personal
ben fits the estate of the wrongdoer action dies with the person.
CJIAP. XXV 7 .] OF PK.OPEKTY IN THINGS PERSONAL. 343
to the first or any subsequent possessor, it vests in him the
total property, and no remainder over shall be permitted
on such a limitation. 1
Next, as to the number of owners. [399] Things personal
may belong to their owners, not only in severalty, but also
in joint-tenancy, and in common as well as real estates.
They cannot indeed be vested in coparcenary, because they
do not descend from the ancestor to the heir, which is neces-
sary to constitute coparceners. But if a horse or other per-
sonal chattel be given to two or more absolutely, they are
joint-tenants hereof, and unless the jointure be severed,
the same doctrine of survivorship shall take place as in
estates of lands and tenements. 2 And in like manner if the
jointure be severed, as by either of them selling his share,
the vendee and the remaining part-owner shall be tenants
in common, without any jus accrescendi or survivorship.
So- also if 1007. be given by will to two or more, equally to
be divided between them, this makes them tenants in com-
mon, as the same words would have done in regard to real
estates. But, for the encouragement of husbandry and
trade, it is held that a stock on a /arm, though occupied
jointly, and also a stock used in a joint undertaking by
way of partnership in trade, shall always be considered as
common, and not as joint property, and there shall be no
survivorship therein.
1. At this day chattels real and the legatees will, at common law, take
personal cannot be directly entailed, as joint-tenants. 2 P. Wins. 347, 529,
but they may by deed of trust be as 4 Bro. C. C. 15, 3 Ves. J. 628, 632,
effectually settled to one for life with 6 Ves. J. 130.
remainders over, as an estate of in- When the legacies are given in di-
heritance, if it be not attempted to vided shares, as so much of a sum of
render them unalienable beyond the money to B. and so much to C., the
period allowed by law. See Gilb. Uses legatees will be considered as tenants
and Trusts, by Sugden, 121, note 4, in common; as in instances where
and Mr. Hargrave's note 5 to Co. Litt. legacies are given to two or more per-
20a. See, also, Gillespie v. Miller, 5 sons, " share and share alike." or " to
John. Ch. 21; Underbill v. Tripp, 24 and among them," or "to them re-
How. Pr. 51. spectively," or " to be equally divided
2. \Vhen legacies are given to two amongst them," such words will cre-
of more persons in undivided shares, ate a tenancy in common. 3 Atk.
as 10(M. "to A. and B." or to the 731, 2 Atk. 441, 2 Atk. 121, 1 Atk.
children of C.; or in case of a bequest 494, 3 Bro. C. C. 25, 5 Ves. J. 510.
to two without words of severance, See ante, *179 ct scq. and notes..
34: t TITLE TO THINGS PERSONAL, ETC. [BOOK II.
CHAPTER XXVI.
OF TITLE TO THINGS PERSONAL BY OCCUPANCY.
We are next to consider the title to things personal, or
the various means of acqiririnf/ and of losing such property
as may be had therein. [400] And these methods of ac-
quisition or loss are principal!}' twelve: 1. By occupancy.
2. By prerogative. 3. By forfeiture. 4. By custom. 5. By
succession. 6. By marriage. 7. By judgment 8. By
gift or grant. 9. By contract, 10. By bankruptcy. 11. By
testament. 12. By administration.
I. And first, a property in goods and chattels may be
acquired by occupancy.
1. Thus, in the first place, it hath been said that any-
body may seize to his own use such goods as belong to an
alien enemy. [401]. But this, however generally laid down
by some of our writers, must in reason and justice bo
restrained to such captors as are authorized by the public
authority or the state, residing in the crown, and to such
goods as are brought hito this country by an alien enemy,
after a declaration of war, without a safe-conduct or pass-
port. And therefore it hath been holden that where a
foreigner is resident in England, and afterwards a war
breaks out between his country and ours, his goods are not
liable to be seized. It hath also been adjudged that if an
enemy take the goods of an Englishman, which are after-
wards retaken by another subject of this kingdom, the
former owner shall lose his property therein, and it shall
be indefeasibly vested in the second taker, unless they were
retaken the same day, and the owner before sunset puts in
his claim of property, which is agreeable to the law of
nations as understood in the time of Grotius, even with
regard to captures made at sea, which were held to be tlio
property of the captors after a possession of twenty-four
hours, though the modern authorities require that before
the property can be changed, the goods must have been
brought into port, and have continued a night intra presidio,
CHAP. XXVI.] TITLE TO THINGS PERSONAL, ETC. 345
in a place of safe custody, so that all hope of recovering
them was lost. 1 [402]
And as in the goods of an enemy, so also in his person,
a man may acquire a sort of qualified property by taking
him a prisoner in war; at least till his ransom be paid.
2. Thus again, whatever movables are found upon the
surface of the earth or in the sea, and are unclaimed by
any owner, are supposed to be abandoned by the last pro-
prietor, and, as such, are returned into the common stock
and mass of things, and therefore they belong, as in a state
of nature, to the first occupant or fortunate finder, unless
they fall within the description of waifs, or estrays, or
wreck, or hidden treasure; for these, we have formerly
seen, are vested by law in the king, and form a part of
the ordinary revenue of the crown.
3. Thus, too, the benefit of the elements, the light, the
air, and the water, can only be appropriated by occupancy.
If I have an ancient window overlooking my neighbor's
ground, he may not erect and blind to obstruct the light, 2
but if I build my house close to his wall, which darkens it r
I cannot compel him to demolish his wall, for there the
first occupancy is rather in him than in me. If my neigh-
bor makes a tanyard so as to annoy and render less salu-
brious the air of my house or gardens, the law will furnish
me with a remedy; but if he is first in possession of the air,
1. Sentence of condemnation by a it has taken place merely as a con-
court of competent jurisdiction, a sequence of taking a ship as prize,
prize court, is necessary. Questions although the ship has been acquitted,
respecting the seizure of property as 1 Le Caux v. Eden, Dougl. 594. For
prizes, seldom arise in the common the law respecting seizures and cap-
law or equity courts, they being, in tures, and the modes of acquiring and
general, cognizable only in the admi- losing property thereby, see the ad-
ralty courts (United States Courts); miralty decisions of Sir Wm. Scott,
and when a ship is bona fide seized collected and arranged in 1 Clmty's
as prize, the owner cannot sustain an Commercial L. 377 to 512, and ?
action in a court of common law for Wooddes. 435 to 457.
the seizure, though she be released 2. The English law as to ancient
without any suit being instituted lights has been held inapplicable to
against her, his remedy, if any, being this country in some of the states and
in the court of admiralty, 2 Marsh, followed in others. See Washburn on
R. 133; and the same rule applies to Easements, *498 et seq.
the imprisonment of the person when
34:0 TITLE TO THINGS PERSONAL, ETC. [Booic II.
and I fix my habitation near him, the nuisance is of my own
seeking, and may continue. 3 [403] If a stream be unoccu-
pied I may erect a mill thereon and detain the water; yet
not so as to injure my neighbor's prior mill or his meadow,
for he hath by the first occupancy acquired a property in
the current.
4. With regard likewise to animals ferae naturae, 4 all man-
kind had, by the original grant of the Creator, a right to
pursue and take any fowl or insect of the air, any fish or
inhabitants of the waters, and any beast or reptile of the
field; and this natural right still continues in every indi-
vidual, unless where it is restrained by the civil laws of
the country. And when a man has once so seised them
they become, while living, his qualified property, or if dead
are absolutely his own; so that to steal them or otherwise
invade this property is, according to their respective value,
sometimes a criminal offence, sometimes only a civil in-
jury. The restrictions which are laid upon this right by
the laws of England relate principally to royal fish, as
whale and sturgeon, and such terrestrial, aerial, or aquatic
animals as go under the denomination of game, 5 the taking
of which is made the exclusive right of the prince and such
of his subjects to whom he has granted the same royal
privilege. But those animals which are not expressly so
reserved are still liable to be taken and appropriated by
any of the king's subjects, upon their own territories, in
the same manner as they might have taken even game itself
till these civil prohibitions were issued.
5. To this principle of occupancy also must be referred
the method of acquiring a special personal property in
corn growing on the ground or other emblements, 6 by any
possessor of the land who hath sown or planted it, whether
he be owner of the inheritance or of a less estate, which em-
blements are distinct from the real estate in the land, and
subject to many, though not all, the incidents attending
3. Contra, Susquehanna Fertilizer 4. See ante, *390.
Co. v. Malone, 73 Md. 268; Hale v. 5. See ante.
Barlow, 4 C. B. (N. S.) 336; Cooley 6. See ante, p. *122, 144.
on Torts (Students' Ed.), 573, 574.
CHAP. XXVI. ] TITLE TO THINGS PERSONAL, ETC. 347
personal chattels. [404] They were devisable by testa-
ments before the statute of wills, and at the death of the
owner shall vest in his executor and not his heir; they are
forfeitable by outlawry in a personal action, and by the
statute 11 Geo. II. c. 19, though not by the common law,
they may be destreined for rent-arrere.
6. The doctrine of property arising from accession is
also grounded on the right of occupancy. By the Roman
law, if any given corporeal substance received afterwards
an accession by natural or by artificial means, as by the
growth of vegetables, the pregnancy of animals, the em-
broidering of cloth, or the conversion of wood or metal
into vessels and utensils, the original owner of the thing
was entitled by his right of possession to the property of
it under such its state of improvement; but if the thing
itself by such operation was changed into a different spe-
cies, as by making wine, oil, or bread out of another's
grapes, olives, or wheat, it belonged to the new operator,
who was only to make a satisfaction to the former pro-
prietor for the materials which he had so converted. And
these doctrines are implicitly copied and adopted by our
Bracton, and have since been confirmed by many resolutions
of the courts. 7 [405] It hath even been held that if one
7. This also has long been the law as he can trace and identify his own,
of England; for it is laid down in the may reclaim it. If one has willfully
Year-books, that whatever alteration as a trespasser taken the property of
of form any property has undergone, another and altered it in form or sub-
the owner may seize it in its new stance by an expenditure of his own
shape, if he can prove the identity labor or money, he will not be suf-
of the original materials; as if leather fered to acquire a title by his wrong-
be made into shoes, cloth into a coat, ful action as against the original
or if a tree be squared into timber, owner reclaiming his property. There-
or silver melted or beat into a differ- fore, one whose trees have been con-
ent figure. 5 Hen. VIT. fo. 15, -12 verted into shingles by a trespasser
Hen. VIII. fo. 10. The cases referred may reclaim his property in shingles,
to, Bro. Ab. Propertie, 23 Moor. 20, . . . Indeed the doctrine has been
Poph. 38, are very explicit; see, also, carried so far that in Xew York it
2 Campb 576, Com. Dig. Pleader, 3 has been held that one whose grain
M. 28, Bac. Ab. Tresp. E. 2. has been taken by a willful trespasser
Judge Cooley in his work on Torts and converted into alcoholic liquors
uses the following language: "In is entitled to demand and recover the
general the owner of property, so long new product." Cooley on Torts (Stu-
348 TITLE TO THINGS PERSONAL, ETC. [BOOK IT.
takes away and clothes another's wife or son, and after-
wards they return home, the garments shall cease to be his
property who provided them, being annexed to the person
of the child or woman,
7. But in the case of confusion of goods, where those of
two persons are so intermixed that the several portions can
bo no longer distinguished, the English law partly agrees
with and partly differs from the civil. If the intermixture
be by consent, I apprehend that in both laws the proprietors
have an interest in common in proportion to their respec-
tive shares. But if one wilfully intermixes his money,
corn, or hay with that of another man without his appro-
bation or knowledge, or casts gold in like manner into
another's melting-pot or crucible, the civil law, though it
gives the sole property of the whole to him who has not
interfered in the mixture, yet allows a satisfaction to the
other for what he has so improvidently lost. But our
law, to guard against fraud, gives the entire property, with-
out any account, to him whose original dominion is in-
vaded and endeavored to be rendered uncertain without his
own consent. 8
8. There is still another species of property, which (if it
subsists by the common law), being grounded on labor and
invention, is more properly reducible to the head of occu-
pancy than any other. And this is the right which an
author may be supposed to have in his own original literary
composition, so that no other person without his leave may
publish or make profit of the copies. When a man by the
exertion of his rational powers has produced an original
work, he seems to have clearly a right to dispose of that
dents' Ed.), 117, US; Church v. Lee, Cooley on Torts (Students' Ed.), 118
5 John. 348; Burris v. Johnson, 1 J< and cases cited.
J. Marsh, 196 Silsbury v. McCoon, 8. But if the goods are practically
3 N. Y. 379. of the same kind a*nd quality, the in-
Some cases hold that in trover for jured party is only entitled to take
the value where the trespass is by his proportion from the common mass,
mistake and innocent, the owner is It is only where the mixture is wrong-
only entitled to recover the value of ful and the separation of the goods
the property as part of the realty or is practically impossible, that the law
immediately after severance and not permits the injured party to take the
its value in its improved state as whole. Cooley on Torts (Students'
where the trespass is willful. See Ed.), 115 and cases cited.
CHAP. XXVI.] TITLE TO THINGS PERSONAL, ETC. ' ^ 349
identical work as he pleases; and any attempt to vary the
disposition he has made of it appears to be an invasion
of that right. [406] -Now the identity of a literary com-
position consists entirely in the sentiment and the language;
the same conceptions, clothed in the same words, must
necessarily be the same composition. And whatever
method be taken of exhibiting that composition to the jear
or the eye of another, by recital, by writing, or by printing,
in any number of copies or at any period of time, it is al-
ways the identical work of the author which is so exhib-
ited, and no other man (it hath been thought) can have a
right to exhibit it, especially for profit, without the au-
thor's consent. This consent may perhaps be tacitly given
to all mankind when an author suffers his work to be pub-
lished by another hand without any claim or reserve of
right, and without stamping on it any marks of ownership,
it being then a present to the public, like building a church
or bridge, or laying out a new highway; but in case the
author sells a single book, or totally grants the copyright,
it hath been supposed, in the one case, that the buyer hath
no more right to multiply copies of that book for sale than
he hath to imitate for the like purpose the ticket which is
bought for admission to an opera or a concert, and that, in
the other, the whole property, with all its exclusive rights,
is perpetually transferred to the grantee. On the other
hand, it is urged that, though the exclusive property of
the manuscript and all which it contains undoubtedly be-
longs to the author before it is printed or published, yet,
from the instant of publication, the exclusive right of an
author or his assigns to the sole communication of his ideas
immediately vanishes and evaporates, as being a right of
too subtle and unsubstantial a nature to become the subject
of property at the common law, and only capable of being
guarded by positive statutes and special provisions of the
magistrate.
The Roman law adjudged that if one man wrote any-
thong on the paper or parchment of another, the writing
should belong to the owner of the blank materials, meaning
thereby the mechanical operation of writing, for which h
directed the scribe to receive a satisfaction; for in works of
350 TITLE TO THINGS PERSONAL, ETC. [BOOK II.
genius and invention, as in painting on another man's can-
vas, the same law gave the canvas to the painter. 9 [407]
But whatever inherent copyright might have been sup-
posed to subsist by the common law, the statute 8 Anne,
Cy 19 (amended by statute 15 Geo. III. c. 53), hath now de-
clared that the author and his assigns shall have the sole
liberty of printing and reprinting his works for the term
of fourteen years, and no longer, and hath also protected
that property by additional penalties and forfeitures; di-
recting further, that if at the end of that term the author
himself be living, the right shall then return to him for
another term of the same duration, 1 and a similar privilege
is extended to the inventors of prints and engravings, for
the term of eight-and-twenty years, by the statutes 8 Geo.
II, c. 13, and 7 Geo. III. c. 38, besides an action for dam-
ages, with double costs, by statute 17 Geo. III. c. 57. All
which parliamentary protections appear to have been sug-
gested by the exception in the statute of monopolies, 21
Jac. I. c. 3, which allows a royal patent of privilege to be
granted for fourteen years to any inventor of a new manu-
facture, for the sole working or making of the same; by vir-
tue whereof it is held, that a temporary property therein
becomes vested in the king's patentee. 2
9. " In the case of Miller v. Taylor, constitutes an abandonment of his
4 Burr. 2303, it was held that an ex- rights; and a restricted publication
elusive and permanent copyright in is not such an abandonment. A pub-
authors subsisted by the common law. lication to constitute an abandonment
But afterwards, in the case of Don- must be literally one which puts the
aldson v. Becket. 4 Burr. 2408, before production before the general public,
the House of Lords, it was held tiiat See, generally. Cooley on Torts (Stu-
no copyright subsists in authors after dents' Ed. ) , 353 and cases cited,
the expiration of the several terms 1. See note (9). supra.
crea'ed by the statute of Queen Anne." 2. As to United Slates patents, see
See Drone on Copyright, 1; Wheaton Act of Congress, 1909. which
v. Peters, 8 Pet. 591 : Rev. Stat. U. S., grant a monopoly to an inventor for
4948-4972; 5 & 6 Viet., ch. 45; 45 28 years upon compliance with the
& 40 Viet., ch. 40. statutory requirements which are
The author of any literary, dra- therein fully set forth. Patents, copy-
nmtic or musical composition or work rights and trade-marks constitute a
of art has, however, at common law special branch of practice and have
a property in his production which a voluminous literature. See Bender's
the law will protect so long as he has Law Catalogue (19-14), pages 79 and
not made such a publication of it as 80.
('HAP. XXVIL] OF TITLE BY PREROGATIVE. . 351
CHAPTEK XXVIL
OF TITLE BY PREROGATIVE AND FORFEITURE.
II. A second method of acquiring property in personal
chattels is by the king's prerogative, whereby a right may
accrue either to the crown itself or to such as claim under
the title of the crown, as by the king's grant or by pre-
scription, which supposes an ancient grant. [408]
Such, in the first place, are all tributes, taxes, 1 and cus-
toms, whether constitutionally inherent in the crown, as
flowers of the prerogative and branches of the census re-
galls, or ancient royal revenue, or whether they be occa-
sionally created by authority of parliament. In these the
king acquires and the subject loses a property the instant
they become due. If paid, they are a chose in possession;
if unpaid, a chose in action. Hither, also, may be referred
all forfeitures, fines, and amercements due to the king,
which accrue by virtue of his ancient prerogative or by
particular modern statutes. And in either case the owner
of the thing forfeited and the person fined or amerced lose
and part with the property of the forfeiture, fine, or amerce-
ment the instant the king or his grantee acquires it.
In these several methods of acquiring property by pre-
rogative there is also this peculiar quality, that the king
cannot have a joint property with any person in one entire
chattel, or such a one as is not capable of division or separa-
tion; but where the titles of the king and a subject concur,
the king shall have the whole: in like manner as the king
cannot, either by grant or contract, become a joint-tenant
of a chattel real with another person, but by such grant
or contract shall become entitled to the whole in severalty.
[409] Thus, if a horse be given to the king and a private
person, the king shall have the sole property; if a bond be
made to the king and a subject, the king shall have the
whole penalty, the debt or duty being one single chattel.
1. Taxation and special assessments have a voluminous literature. See
also constitute another specialty and Bender's Law Catalogue, 104, 105.
352 OF TITLE BY PREROGATIVE. [BOOK If.
And so if two persons have the property of a horse between
them, or have a joint debt owing them on bond, and one of
them assigns his part to the king or is attainted, whereby
his moiety is forfeited to the crown, the king shall havo
the entire horse and entire debt.
[As to the acquisition of property in wreck, in treasure-trove, in waifs,
in estrays, in royal tish, in swans, and the like, which are not transferred
to the sovereign from any former owner, but are originally inherent in
him by the rules of law, and are derived to particular subjects as royal
franchises by his bounty, see the Eighth Chapter of the former Book.]
There is also a kind of prerogative copyright subsisting
in certain books, which is held to be vested in the crown
upon different reasons. [410] Thus, 1. The king, as the
executive magistrate, has the right of promulgating to the
people all acts of state and government. This gives him
the exclusive privilege of printing at his own press, or that
of his grantees, all acts of parliament, proclamations, and
orders of council. 2. As supreme head of the church he hath
a right to the publication of all liturgies and books of divine
service. 3. He is also said to have a right by purchase
to the copies of such law-books, grammars, and other com-
positions as were compiled or translated at the expense of
the crown. And upon these two last principles combined
the exclusive right of printing the translation of the Bible
is founded.
There still remains another species of prerogative prop-
erty, founded upon a very different principle from any that
have been mentioned before: the property of such animals
ferae naturae as are known by the denomination of game, 2
with the right of pursuing, taking, and destroying them,
which is vested in the king alone, and from him derived to
such of his subjects as have received the grants of a chase,
a park, a free warren, or free fishery. By the law of natuiv
every man, from the prince to the peasant, has an equal
right of pursuing and taking to his own use all such crea-
2. The right to take game is vari- also the statutes ot the United State*,
ously regulated by statute in the sev- See Ewell on Fixtures (2d Ed.), *241
ral states. See the local statutes and notes; also ante, notes.
CHAP. XXVII.] Or TITLE BY PREROGATIVE. 353
tures as are ferae naturae, and therefore the property of
nobody, but liable to be seized by the first occupant. And
so it was held by the imperial law even so late as Justinian's
time. [411] But it follows from the very end and consti-
tution of society that this natural right, as well as many
others belonging to man as an individual, may be restrained
by positive laws enacted for reasons of state, or for the
supposed benefit of the community. This restriction may
be either with respect to the place in which this right may
or may not be exercised; with respect to the animals that are
the subject of this right; or with respect to the persons al-
lowed or forbidden to exercise it. And in consequence of
this authority we find that the municipal laws of many
nations have exerted such power of restraint: have in gen-
eral forbidden the entering on another man's grounds for
any cause without the owner's leave; have extended their
protection to such particular animals as are usually the
objects of pursuit; and have invested the prerogative of
hunting and taking such animals in the sovereign of the
state only, and such as he shall authorize.
Upon the Norman Conquest the right of pursuing 'and
taking all beasts of chase or venary, and such other animals
as were accounted game, was then held to belong to the king,
or to such only as were authorized under him. [415] And
this as well upon the principles of the 'feodal law, that the
king is the ultimate proprietor of all the lands in the king-
dom, they being all held to him as the chief lord, or lord
paramount of the fee, and that therefore he has the right
of the universal soil to enter thereon and to chase and take
such creatures at his pleasure, as also upon another maxim
of the common law, which we have frequently cited and
illustrated, that these animals are bona vaeantia, and, having
no other owner, belong to the king by his prerogative. As,
Uierefore, the former reason was held to vest in the king a
right to pursue and take them anywhere, the latter was
supposed to give the king and such as he should authorize a
sole and exclusive right.
As the king reserved to himself the forests for his own
exclusive diversion, so he granted out from time to time
23
354 OF TITLE BY PREROGATIVE. [BOOK II.
other tracts of lauds to his subjects under the names of
chases or parks, or gave them license to make such in their
o\Vn grounds, which indeed are smaller forests in the hands
of a subject, but not governed by the forest laws ; and by tKe
common law no person is at liberty to take or kill any beasts
of chase but such as hath an ancient chase or park, unless
they be also beasts of prey. [416]
As to all inferior species of game, called beasts and fowls
of warren, the liberty of taking or killing them is another
franchise of royalty, derived likewise from the crown, and
called free warren, a word which signifies preservation or
custody, as the exclusive liberty of taking and killing fish in
a public stream or river is called a free fishery; of which,
however, no new franchise can at present be granted by the
express provision of Magna Carta, c. 16. [417] The princi-
pal intention of granting to any one these franchises or lib-
erties was in order to protect the game, by giving the grantee
a sole and exclusive power of killing it himself, provided
he prevented other persons. And no man but he who has
a chase or free warren, by grant from the crown or prescrip-
tion, which supposes one, can justify hunting or sporting
upon another man's soil; nor indeed, in thorough strictness
of common law, either hunting or sporting at all. It is
true that, by the acquiescence of the crown, the frequent
grants of free warren in ancient times, and the introduction
of new penalties of late by certain statutes for preserving
the game, this exclusive prerogative of the king is little
known or considered, every man that is exempted from these
modern penalties looking upon himself as at liberty to do
what he pleases with the game; whereas the contrary is
strictly true, that no man, however well qualified he may
vulgarly be esteemed, has a right to encroach on the royal
prerogative by the killing of game, unless he can show a
particular grant of free warren, or a prescription which pre-
sumes a grant, or some authority under an act of parliament.
[418]
Upon the whole it appears that the king, by his preroga-
tive, and such persons as have under his authority the royal
franchises of chase, park, free warren, or free fishery, are the
CHAP. XXV1L] OF TITLE BY FORFEITURE. 355
only persons who may acquire any property, however fugi-
tive and transitory, in these animals ferae naturae while
living, which is said to be vested in them, as was observed in
a former chapter, propter prlcilcgium. [419] And it must
also be remembered that such persons as may thus lawfully
hunt, fish, or fowl ratione prii;ilcgii, have (as has been said)
only a qualified property in these animals, it not being abso-
lute or permanent, but lasting only so long as the creatures
remain within the limits of such respective franchise or lib-
erty, and ceasing the instant they voluntarily pass out of it.
It is held, indeed, that if a man starts any game within his
own grounds, and follows it into another's and kills it there,
the property remains in himself. And this is grounded on
reason and natural justice, for the property consists in the
possession, which possession commences by the finding it in
his own liberty, and is continued by the immediate pursuit.
And so if a stranger starts game in one man's chase or free
warren, and hunts it into another liberty, the property con-
tinues in the owner of the chase or Avarren, this property
arising from privilege, and not being changed by the act of a
mere stranger. Or if a man starts game on another's private
grounds and kills it there, the property belongs to him in
whose ground it was killed, because it was also started there,
the property arising ratione soli. [Blades v. Higgs, 11 H. L.
Oas. 621.] Whereas if, after being started there, it is killed
in the grounds of a third person, the property belongs not to
the owner of the first ground, because the property is local,
nor yet to the owner of the second, because it was not started
in his soil, but it vests in the person who started and 'killed
it, though guilty of trespass against both the owners.
III. I proceed now to a third method whereby a title to
goods and chattels may be acquired and lost, viz., by for-
feiture, as a punishment for some crime or misdemeanor in
the party forfeiting, and as a compensation for the offence
and injury committed against him to whom they are for-
feited. 3 [420]
3. See post, Book 4, Criminal Law.
35G OF TITLE BY FORFEITUIIE. [BOOK II.
In the variety of penal laws with which the subject Is at present en-
cumbered, it were a tedious and impracticable task to reckon up the
various forfeitures inflicted by special statutes for particular crimes and
misdemeanors. I shall therefore confine myself to those offences only
by which all the goods and chattels of the offender are forfeited.
Goods and chattels, then, are totally forfeited by conviction of high
treason or misprision of treason; of petit treason; of felony in general, and
particularly of felony de se,* and of manslaughter, nay, even by convic-
tion of excusable homicide; by outlawry for treason of felony; by convic-
tion of petit larceny; by flight in treason or felony, even though the party
be acquitted of the fact; by standing mute when arraigned of felony; by
drawing a ioeapon on a judge, or striking any one in the presence of the
king's courts; by praemunire; by pretended prophecies, upon a second con-
viction; by owling ; by the residing abroad of artificers, and by challenging
to fight on account of money won at gaming. [421]
And this forfeiture commences from the time of conviction, not the
time of committing the fact, as in forfeitures of real property.
4. Suicide.
CHAP. XXVIIL] OF TITLE BY CUSTOM. 357
CHAPTER XXVIIL 1
OF TITLE BY CUSTOM.
IV. A fourth method of acquiring property in things personal or chat-
tels is by custom, whereby a right vests in some particular persons,
either by the local usage of some particular place, or by the almost
general and universal usage of the kingdom. [422] It were endless should
I attempt to enumerate all the several kinds of special customs which
may entitle a man. to a chattel interest in different parts of the king-
dom; I shall herefore content myself with making some observations on
three sorts of customary interests which obtain pretty generally through-
out most parts of the nation, and are therefore of more universal concern,
viz. heriots, mortuaries, and heirlooms.
1. Heriots are usually divided into two sorts: heriot-service and heriot-
custom. The former are such as are due upon a special reservation in a
grant or lease of lands, and therefore amount to little more than a mere
rent; the latter arise upon no special reservation whatsoever, but de-
pend merely upon immemorial usage and custom. And they are defined
to be a customary tribute of goods and chattels payable to the lord of
the fee on the decease,, of the owner of the land.
This heriot is sometimes the best live beast or avcrium which the ten-
ant dies possessed of, sometimes the best inanimate good, under which
a jewel or piece of plate may be included; but it is always a personal
chattel, which, immediately on the death of the tenant who was the owner
of it, being ascertained by the option of the lord, becomes vested in him
as his property, and is no charge upon the lands, but^ merely on the
goods and chattels. [424] [Not applicable to this country.]
2. Mortuaries are a sort of ecclesiastical heriots, being a customary
gift claimed by and due to the minister in very many parishes on the
death of his parishioners. [425] After the lord's heriot or best good was
taken out, the second best chattel was reserved to the church as a
mortuary.
The variety of customs with regard to mortuaries giving frequently a
handle to exactions on the one side and frauds or expensive litigations
on the other, it was thought proper by statute 21 Hen. VIII. c. 6, to re-
duce them to some kind of certainty. [427] For this purpose it is en-
acted that all mortuaries or corse-presents to parsons of any parish shall
be taken in the following manner, unless where by custom less or none
at all is due: viz. for every person who does not leave goods to the value
of ten marks, nothing; for every person who leave goods to the value
of ten marks and under thirty pounds, 3. id.; if above thirty pounds and
under forty pounds, 6 s - 8^-; if above forty pounds, of what value soever
1. Retained principally for its historical value.
358 OF TITLE BY CUSTOM. - 7 [BOOK IT.
they may be, 10*. and no more. And no mortuary shall throughout the
kingdom be paid for the death of any feme-covert, nor for any child, nor
for any one of full age that is not a housekeeper, nor for any wayfar-
ing man, but such wayfaring man's mortuary shall be paid in the parish
to which he belongs. And upon this statute stands the law of mortuaries
to this day. [Not applicable to this country.]
3. Heirlooms are such goods and personal chattels as, contrary to the
nature of chattels, shall go by special custom to the heir along with the
inheritance, and not to the executor of the last proprietor. [Not applic-
able to this country.] 2 The termination loom is of Saxon original, in
which language it signifies a limb or member, so that an heirloom is
nothing else but a limb or member of the inheritance. They are gen-
erally such things as cannot be taken away without damaging or dis-
membering the freehold; otherwise the general rule is that no chattel
interest whatsoever shall go to the heir, notwithstanding it be expressly
limited to a man and his heirs, but shall vest in the executor. But deer
in a real authorized park, fishes in a pond, doves in a dove-house, etc.,
though in themselves personal chattels, yet they are so annexed to and
so necessary to the well-being of the Inheritance, that they shall accom-
pany the land wherever it vests, by either descent or purchase. 3 [428]
For this reason also I apprehend it is that the ancient jewels of the crown
are held to be heirlooms, for they are necessary to maintain the state
and support the dignity of the sovereign for the time being.
Charters likewise and deeds, court-rolls-, and other evi-
dences of the land, together with the chests in which they
are contained, shall pass together with the land to the heir,
in the nature of heirlooms, and shall not go to the executor. 4
By special custom also in some places carriages, utensils, and other
household implements may be heirlooms; but such custom must be
strictly proved.
On the other hand, by almost general custom, whatever
is strongly affixed to the freehold or inheritance and can-
not be severed from thence without violence or damage,
2. See Ewell on Fixtures (2d Ed.), own muniments of title; and a certi-
*232-239 and cases in notes. fied copy of the record of deeds being
3. See Ewell on Fixtures (2d Ed.), competent evidence, the rule of the
*2U-245 and notes. text has lost much of its importance.
4. Ewell on Fixtures (2d Ed.), See Ewell on Fixtures (2d Ed.) , *228.
*229. Land warrants authorizing the loca-
In this country where the statutes tion of public lands are real estate
everywhere provide for the recording and pass to the heir unless specifically
of deeds of conveyance in public of- devised. Atwood v. Beck, 21 Ala. 590.
flees, the raritor usually retains his
CHAP. XXVIIL] OF TITLE BY CUSTOM. 359
" quod db aedibus non facile revclUtur" is become a member
of the inheritance, and shall thereupon pass to the heir, as
chimney-pieces, pumps, old fixed or dormant tables,
benches, and the like. 5
Other personal chattels there are which also descend to the heir in the
nature of heirlooms, as a monument or tombstone in a church, or the
coat-armor of his ancestor there hung up, with the pennons and other
ensigns of honor suited to his degree. [429] In this case, albeit the free-
hold of the church is in the parson, and these are annexed to that free-
hold, yet cannot the parson or any other take them away or deface them,
but is liable to an action from the heir. Pews in the church are some-
what of the same nature, which may descend by custom immemorial,
without any ecclesiastical concurrence, from the ancestor to the heir. 6
But though the heir has a property in the monuments
and escutcheons of his ancestors, 7 yet he has none in their
bodies or ashes, 8 nor can he bring any civil action against
such as indecently, at least, if not impiously, violate and
disturb their remains when dead and buried. The parson,
indeed, who has the freehold of the soil, may bring an ac-
tion of trespass against such as dig and disturb it; and if
any one in taking up a dead body steals the shroud or other
apparel, it will be felony, for the property remains in the
executor, or whoever was at the charge of the funeral. 9
But to return to heirlooms; these, though they be mere chattels, yet
cannot be devised away from the heir by will; but such a devise is void
even by a tenant in fee-simple. For though the owner might during his
life have sold or disposed of them, as he might of the timber of the
estate, since as the inheritance was his own he might mangle or dis-
member it as he pleased, yet they being at his death instantly vested in
the heir the devise which is subsequent, and not to take effect till after
his death shall be postponed to the custom whereby they have already
descended.
5. Sae note on fixtures under head 8. There is no property in a corpse.
-" Waste." Guthrie v. Weaver, 1 Mo. App. 13G ;
6. See the local statutes. Right of Ewell on Fixtures (2d Ed.), *239.
pewholder generally considered as a 9. See post, Criminal Law, Book 4.
quasi-easemerit. Consult the local statutes.
7. See Ewell on Fixtures (2d Ed.),
*234.
OF TITLE BY SUCCESSION. [BOOK II.
CHAPTER XXIX.
OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT.
V. The fifth method of gaining a property in chattels,
either personal or real, is by succession, which is, in strict-
ness of law, only applicable to corporations aggregate 1 of
many, as dean and chapter, mayor and commonalty, master
and fellows, and the like, in which one set of men may, by
succeeding another set, acquire a property in all the goods,
movables, and other chattels of the corporation. [430]
The true reason whereof is because in judgment of law a
corporation never dies, and therefore the predecessors who
lived a century ago, and their successors now in being, are
one and the same body corporate, which identity is a
property so inherent in the nature of a body politic, that
even when it is meant to give anything to be taken in suc-
cession by such a body, that succession need not be ex-
pressed, but the law will of itself imply it. So that a gift
to such a corporation, either of lands or of chattels, without
naming their successors, vests an absolute property in them
so long as the corporation subsists.
But with regard to sole corporations 2 a considerable dis-
tinction must be made. [431] For if such sole corporation
be the representative of a number of persons, as the mas-
ter of an hospital, who is a corporation for the benefit of
the poor brethren, an abbot, or prior, by the old law before
the Reformation, who represented the whole convent,
such sole corporations as these have, in this respect, the
same powers as corporations aggregate have to take per-
sonal property or chattels in succession. And therefore a
bond to such a master, abbot, or dean, and his successors is.
good in law, and the successor shall have the advantage of
it for the benefit of the aggregate society of which he is in.
law the representative. Whereas in the case of sole corpo-
rations, which represent no others but themselves, as
1. See ante, Corporations, notes. 2. See ante.
CHAP. XXIX.] Or TITLE BY SUCCESSION. 361
bishops, parsons, and the like, no chattel interest can regu-
larly go in succession; and, therefore, if a lease for years
be made to the Bishop of Oxford and his successors, in such
case his executors or administrators, and not his successors,
shall have it. For the word successors, when applied to a
person in his political capacity, is equivalent to the word
heirs in his natural, and as such a lease for years, if made
to John and his heirs, would not vest in his heirs but his
executors;. so if it be made to John, Bishop of Oxford, and
his successors, who are the heirs of his body politic, it shall
still vest in his executors, and not in such his successors.
The reason of this is obvious: for besides that the law
looks upon goods and chattels as of too low and perishable
a nature to be limited either to heirs or such successors as
are equivalent to heirs, it would also follow that if any
such chattel interest, granted to a sole corporation and his
successors, were allowed to descend to such successor, the
property thereof must be in abeyance from the death of the
present owner until the successor be appointed; and this is
contrary to- the nature of a chattel interest, which can never
be in abeyance or without an owner, but a man's right
therein, when once suspended, is gone forever. [432] This
is not the case in corporations aggregate, where the right is
never in suspense, nor in the other sole corporations before
mentioned, who are rather to be considered as heads of an
aggregate body than subsisting merely in their owji right.
The chattel interest, therefore, in such a case is really and
substantially vested in the hospital, convent, chapter, or
other aggregate body, though the head is the visible person
in whose name every act is carried on, and in whom every
interest is therefore said, in point of form, to vest. But
the general rule with regard to corporations merely sole
is this, that no chattel can go to or be acquired by them
in right of succession.
Yet to this rule there are two exceptions. One in the
case of the king, in whom a chattel may vest by a grant of
it formerly made to a preceding king and his successors.
The other exception is where, by a particular custom, some
particular corporations sole have acquired a power of tak-
3C2 OF TITLE BY MARRIAGE. [Boon IT.
ing particular chattel interests in succession. Wherefore,
upon the whole, we may close this head with laying down
ih is general rule: that such right of succession to chattels,
is universally inherent by the common law in all aggregate
corporations, in the king, and in such single corporations as
represent a number of persons, and may by special custom
belong to certain other sole corporations for some particular
purposes, although generally, in sole corporations, no sucli
right can exist. [433]
VI. A sixth method of acquiring property in goods and
chattels is by marriage, whereby those chattels which be-
longed formerly to the wife are by act of law vested in the
husband, with the same degree of property and with the
same powers as the wife when sole had over them. 3
This depends entirely on the notion of an unity of person
between the husband and wife, it being held that they are
one person in law, so that the very being and existence of
the woman is suspended during the coverture, or entirely
merged or incorporated in that. of the husband. And
hence it follows that whatever personal property belonged
to the wife before marriage, is by marriage absolutely
vested in the husband. In a real estate, he only gains a
title to the rents and profits during coverture, for that,
depending upon feodal principles, remains entire to the
wife after the death of her husband, or to her heirs if she
dies before him, unless, by the birth of a child, he becomes
tenant for life by the curtesy. 4 But in chattel interests the
sole and absolute property vests in the husband, to be dis-
posed of at his pleasure, if he chooses to take possession
of them; for unless he reduces them to possession, by ex-
ercising some act of ownership upon them, no property
vests in him, but they shall remain to the wife or to her
representatives after the coverture is determined.
There is, therefore, a very considerable difference in the
acquisition of this species of property by the husband ac-
3. The rules under this head have 4. Considered ante.
been extensively changed by s'atuta
in many of the states. See ante.
CHAP. XXIX.] OF TITLE .BY MARRIAGE. 3G3
cording to the subject-matter: viz. whether it be a chattel
real or chattel personal; and, of chattels personal, whether
it be in possession or in action only. [434] A chattel real
vests in the husband, not absolutely, but sub modo. As, in
case of a lease for years, the husband shall receive all the
rents and profits of it, and may, if he pleases, sell, surrender,
or dispose of it during the coverture; 5 if he be outlawed
or attainted, it shall be forfeited to the king; 6 it is liable to
execution for his debts; and, if he survives his wife, it is to
all intents and purposes his own. Yet if he has made no
disposition thereof in his lifetime, and dies before his wife,
he cannot dispose of it by will; for the husband having
made no alteration in the property during his life, it never
was transferred from the wife, but after his death she shall
remain in her ancient possession, and it shall not go to his
executors. So it is also of chattels personal (or choses) in
action, as debts upon bond, contracts, and the like: these
the husband may have if he pleases; that is, if he reduces
them into possession by receiving or recovering them at
law. And upon such receipt or recovery thfey are abso-
lutely and entirely his own, and shall go to his executors or
administrators, or as he shall bequeath them by will, and
shall not revest in the wife. But if he dies before he has
recovered or reduced them into possession, so that at his
death they still continue choses in action, they shall survive
to the wife, for the husband never exerted the power he had
of obtaining an exclusive property in them. 7 Thus in both
these species of property the law is the same in case the
wife survives the husband; but in case the husband sur-
vives the wife, the law is very different with respect to
5. Turner's Case, 1 Vern. 7; s. c., 7. See Schuyler v. Hoyle, 5 John.
1 Eq. Cas. Abr. 58; Swell's Lead. Ch. 196; Hay ward v. Hayward, 20
Oases (1st Ed.), 475; Robertson v. Pick. 517; Blount v. Bestland, 5 Ves.
Norris, 11 Ad. & Ell. N. S. 916; 515; Swell's Lead. Cases, 357-386,
Ewell's Lead. Cases, 478-487 and 408, 457 and notes treating this sub-
notes. Consult the local statutes as ject at great length. The rules of the
the common law on this subject has text are still the law in this country,
been largely changed by statute. except as changed by statutes. See
6. Outlawry and attainder no longer ante, and notes,
exist in this country.
364 OF TITLE BY MARRIAGE, "i [BOOK II.
chattels real and clioses in action: for he shall have the
chattel real by survivorship, but not the chose in action,
except in the case of arrears for rent due to the wife before
her coverture, which in case of her death are given to the
husband by statute 32 Hen. VIII. c. 37. [435] And the rea-
son for the general law is this, that the husband is in abso-
lute possession of the clmttel real during the coverture by a
kind of joint-tenancy with his wife; wherefore the law will
not wrest it out of his hands and give it to her representa-
tives, though, in case he had died first, it would have survived
to the wife, unless he thought proper in his lifetime to alter
the possession. But a chose in action shall not survive to
him, because he never was in possession of it at all during
the coverture, and the only method he had to gain posses-
sion of it was by suing in his wife 's right ; but as, after her
death, lie cannot (as husband) bring an action in her right,
because they are no longer one and the same person in law,
therefore he can never (as such) recover the possession.
But he still will be entitled to be her administrator, and
may in that ^capacity recover such things in action as be-
came due to her before or during the coverture. 8
As to chattels personal (or choses) in possession which
the wife hath in her own right, as ready money, jewels,
household goods, and the like, the husband hath therein an
immediate and absolute property, devolved to him by the
marriage, not only potentially, but in fact, which never can
again revest in the wife or her representatives. 9
In one particular instance the wife may acquire a prop-
erty in some of her husband's goods, which shall remain to
her after his death and not go to his executors. These aro
called her paraphernalia, which is a term borrowed from
the civil law, and is derived from the Greek language,
8. That in the absence of statutory 310; Buckley v. Collier, 1 Salk. 114
provisions to the contrary, the hus- (wife's earnings) ; Skillman v. Skill-
band is entitled to administer on the man, 15 X. J. Eq. 478 (wife's earn-
estate of his wife is well settled. ings); Kwi-ll's Lead. Cases, 343-356
Whitak<?r v. Whitaker, 6 John. 112; and notes. This rule lias been
Ewill's Lead. Cases (1st Ed.), 513- changed by statute in many states.
621 and notes. Consult the local statutes. See ante.
9. Whitaker v. Whitaker, 1 Den.
CHAP. XXIX.] Or TITLE BY JUDGMENT.
signifying something over and above her dower. [436] Our
law uses it to signify the apparel and ornaments of the wife
suitable to her rank and degree; and therefore even the
jewels of a peress usually worn by her have been held to be
paraphernalia. These she becomes entitled to at the death
of her husband, over and above her jointure or dower, and
preferably to all other representatives. Neither can the
husband devise by his will such ornaments and jewels of
his wife, though during his life perhaps he halth the power
(if unkindly inclined to exert it) to sell them or give them
away. But if she continues in the use of them till his death,
she shall afterwards retain them against his executors and
administrators, and all other persons except creditors,
where there is a deficiency of assets. And her necessary
apparel is protected even against the claim of creditors. 1
VII. A judgment, in consequence of some suit or action
in a court of justice, is frequently the means of vesting the
right and property of chattel interests in the prevailing
party. 2 And here w r e must be careful to distinguish be-
tween property, the right of which is before vested in the
party, and of which only possession is recovered by suit or
action, and property to which a man before had no determi-
nate title or certain claim, but he gains as well the right
as the possession by the process and the judgment of the
law. Of the former sort are all debts and choses in action.
But there is also a species of property to which a man has
not any claim or title whatsoever till after suit commenced
and judgment obtained in a court of law; where the right
and the remedy do not follow each other as in common
cases, but accrue at one arid the same time; and w r here,
before judgment had, no man can say that he has any abso-
lute property, either in possession or in action. [437] Of
this nature are,
1. Such penalties as are given by particular statutes, to
be recovered on an action -popular; or, in other words, to be
1. Consult the local statutes. or other appropriate method, or found
2. A judgment is the conclusion of by verdict or its equivalent. See post,
the law pronounced upon the facts Book 3, *395.
admitted in the record by demurrer
3GG OF TITLE BY JUDGMENT. [BOOK II.
recovered by him or them that will sue for the same. Such
as the penalty of 500/., which those persons are by several
acts of parliament made liable to forfeit that, being in par-
ticular offices or situations in life, neglect to take the oaths
to the government, which penalty is given to him or them
that will sue for the same. Now here it is clear that no
particular person, A or B, has any right, claim, or demand,
in or upon this penal sum till after action brought; for he
that brings his action and can boiia fide obtain judgment
first, will undoubtedly secure- a title to it in exclusion of
everybody else. He obtains an inchoate imperfect degree
of property by commencing his suit, but it is not consum-
mated till judgment; for it any collusion appears he loses
the priority he had gained. But, otherwise, the right so
attaches in the first informer that the king (who before
action brought may grant a pardon which shall be a bar
to all the world) cannot, after suit commenced, remit any-
thing but his own part of the penalty. For by commencing
the suit the informer has made the popular action his own
private action, and it is not in the power of the crown or
of anything but parliament to release the informer's
interest. 3
'2. Another species of property that is acquired and lost
by suit and judgment at law is that of damages 4 given to
a man by' a jury as a compensation and satisfaction for
3. See, however, Butler v. Palmer, on Torts (Students' Ed.), 126. This
1 Hill, .'!:;0; Parmelee v. Lawrence, is the rule in all cases of contract,
44 111. 415; Confiscation Cases, 7 except actions for breach of promise
Wall. 454. of marriage, and in most actions for
4. Damages are of three kinds, torts. Id., 126. Punitive, exemplary
nominal, compensatory and punitive. or vindictive damages are something
Every wrong imports a damage; and given in addition to actual compen-
if none are proved, nominal damages sation for the purpose of punishment
are receivable. See the leading case or example: and may be awarded
of Ashby v. White, Lord Raymond, when the wrong is committed Tnalic.i-
938; 1 Smith's Lead. Cases, *342 and ously or with an evil intent or is
notes; Cooley on Torts (Student*' wanton, deliberate or oppressive. Id.,
Ed.), 124; 1 Sedg. Dam., 98. 126. See, generally, Cooley on Torts
Compensatory damages are such as (Students' Ed.). 123-129; Hale on
make good the actual loss sustained Damages; Sedgwick on Damages and
by the wrong complained of. Cooley Sutherland on Damages.
CHAP. XXIX.] OF TITLE BY JUDGMENT. CG7
I
some injury sustained, as for a battery, for imprisonment,
for slander, or for trespass. [438] Here the plaintiff has
no certain demand .till after verdict ; but when the jury has
assessed his damages, and judgment is given thereupon,
whether they amount to twenty pounds or twenty shillings,
he instantly acquires, and the defendant loses at the same
time, a right to that specific sum. It is true that this is not
an acquisition so perfectly original as in the former in-
stance, for here the injured party has unquestionably a
vague and indeterminate right to some damages or other
the instant he receives the injury; and the verdict of the
jurors and judgment of the court thereupon do not in this
case so properly vest a new title in him as fix and ascertain
the old one; they do not give, but define, the right. But,
however, though strictly speaking the primary right to a
satisfaction for injuries is given by the law of nature, and
the suit is only the means of ascertaining and recovering
that satisfaction, yet, as the legal proceedings are the only
visible means of this acquisition of property, we may fairly
enough rank such damages or satisfaction assessed under
the head of property acquired by suit and judgment at law.
3. Hitherto also may be referred, upon the same principle,
all title to costs and expenses of suit which are often arbi-
trary, and rest entirely on the determination of the court
upon weighing all circumstances, both as to the quantum
and also (in the courts of equity especially, and upon mo-
tions in the courts of law) whether there shall be any costs
at all. [439] These, costs, therefore, when given by the
court to either party, may be looked upon as an acquisition
made by the judgment of law. 5
5. With us costs are only allowed statute or perhaps by some general
in actions at law where warranted by rule of court.
368 OF TITLE BY GIFT. [BOOK II.
CHAPTEE XXX.
OF TITLE BY GIFT, GRANT, AND CONTRACT.
VIII. Gifts, or grants, which are the eighth method of
transferring personal property, are thus to be distinguished
from each other, that gifts are always gratuitous, grants are
upon strnie consideration or equivalent; and they may be
divided, with regard to their subject-matter, into gifts or
grants of chattels real, and gifts or grants of chattels per-
sonal. [440] Under the head of gifts or grants of chattels
real may be included all leases for years of land, assignments,
and surrenders of those leases, and all the other methods
of conveying an estate less than freehold which were con-
sidered in the Twentieth Chapter of the present Book;
though these very seldom carry the outward appearance of
a gift, however freely bestowed, being usually expressed to
be made in consideration of blood, or natural affection, or
of five or ten shillings nominally paid to the grantor; and
in case of leases, always reserving a rent, though it be but
a peppercorn, any of which considerations will in the eye
of the law convert the gift, if executed, into a grant; if not
executed, into a contract.
Grants or gifts of chattels personal are the act of trans-
ferring the right and the possession of them, whereby one
man renounces and another man immediately acquires all
title and interest therein, which may be done either in writ-
ing or by word of mouth, attested by sufficient evidence, of
which the delivery of possession is the strongest and most
essential. [441] But this conveyance, when merely volun-
tary, is somewhat suspicious, and is usually construed to
be fraudulent if creditors or others become sufferers there-
by. And by statute 13 Eliz. c. 5, every grant Or gift of
chattels, as well as lands, with an intent to defraud cred-
itors or others, shall be void as against such persons to
whom such fraud would be prejudicial, but as against the
grantor himself shall stand good and effectual. 1
1. See ante, note.
CHAP. XXX.] OF TITLE BY CONTRACT.
A true and proper gift or grant is always accompanied
with delivery of possession, and takes effect immediately;
as. if A gives to B 100L or a flock of sheep, and puts him
in possession of them directly, it is then a gift executed in
the donee, and it is not in the donor's power to retract it,
though he did it without any consideration or recompense,
unless it be prejudicial to creditors, or the donor were under
any legal incapacity, as infancy, coverture, duress, or the
like, or if he were drawn in, circumvented, or imposed upon
by false pretenses, ebriety, or surprise. But if the gift
does not take effect by delivery of immediate possession,
it is then not properly a gift, but a contract; 2 and this a
man cannot be compelled to perform but upon good and
sufficient consideration, as we shall see under our next
division. [442]
IX. A contract, which usually conveys an interest merely
in action, is thus defined: "An agreement upon sufficient
consideration to do or not to do a particular thing. ' ' 3 From
2. Tiffany on Sales (2d Ed.), 12
and cases cited; 2 Kent Com. 438.
Gifts are of two sorts, inter vivos,
or between the living, and causa mor-
tis, by reason of death. As stated in
the text, there must be an actual de-
livery in the case of gifts inter vivos
or the title does not pass. A mere
intention or promise will not suffice.
2 Kent Com. *438. The delivery
must be according to the nature of
the thing. If it be not capable of
actual delivery, there must be some
act equivalent to it. There may be
a constructive or symbolical delivery.
2 Kent Com. *439. A chose in action
must be assigned. Id. ; Priot v. San-
derson, 1 Dev. (N. C.) 309.
The gift when perfected by delivery
and acceptance is irrevocable, unless
in fraud of creditors. 2 Kent Com.
440.
Gifts causa mortis are conditional
like legacies and must be made by the
donor in his last illness or in the con-
24
temptation and expectation of death.
If the donor recovers, the gift be-
comes void and he may revoke it any
time before death. Delivery is neces-
sary as in the cass of gifts inter vivos.
2 Kent Com. *444-446 and cases cited.
3. This is the usual definition of
a simple contract. Mr. Clark in his
work on Contracts, defines a contract
" in its broadest sense as an agree-
ment whereby one or more of the
parties acquire a right in rem or in
personam, in relation to some person,
thing, act or forbearance." Clark on
Contracts (3d Ed.), 1. "A contract
in its narrower and more proper sense
is an executory contract. It is the
result of the concurrence of agreement
and obligation, and may be defined
as an agreement enforcible at law,
made between two or more persons,
by which rights are acquired by one
or more to acts or forbearances on
the part of the other or others."
Id., 2.
370 OF TITLE BY CONTRACT. [BOOK TI.
which definition there arises three points to be contemplated
in all contracts: 1. The agreement; 2. The cons [deration:
and 3. The thing to be done or omitted, or the different
species of contracts.
First, then, it is an agreement, a mutual bargain or con-
vention; and therefore there must at least be two contract-
ing parties of sufficient ability to make a contract: as where
A contracts with B to pay him 1007-., and thereby transfers
a property in such sum to B. Which property is however
not in possession, but in action merely, and recoverable by
suit at law; wherefore it could not be transferred to another
person by the strict rules of the ancient common law, for
no chose in action could be assigned or granted over, be-
cause it was thought to be a great encouragement to liti-
giousness if a man were allowed to make over to a stranger
his right of going to law. But this nicety is now disre-
garded, though, in compliance with the ancient principle,
the form of assigning a chose in action is in the nature of a
declaration of trust and an agreement to permit the assignee
to make use of the name of the assignor, in order to recover
the possession. And, therefore, when in common accepta-
tion a debt or bond is said to be assigned over, it must still
be sued in the original creditor's name, the person to whom
it is transferred being rather an attorney than an assignee.*
But the king is an exception to this general rule, for he
might always either grant or receive a chose in action by
assignment, and our courts of equity, considering that in a
commercial country almost all personal property, must
necessarily lie in contract, will protect the assignment of a
r//o.sr in action as much as the law will that of a chose in
possession.
This contract or agreement may be either express or im-
plied. [443] Express contracts are where the terms of the
agreement are openly uttered and avowed at the time of
the making, as to deliver an ox, or ten loads of timber, or
to pay a stated price for certain goods. Implied are such
as reason and justice dictate, and which, therefore, the law
presumes that every man undertakes to perform. As, if I
4. See Assignment, considered ante.
CHAP. XXX.] OF TITLE BY CONTRACT.
employ a person to do any business for me, or perform any
work, the law implies that I undertook, or contracted to
pay him as much as his labor deserves. If I take up wares
from a tradesman without any agreement of price, the law
concludes that I contracted to pay their real value. 5 And
there is also one species of implied contracts which runs
through and is annexed to all other contracts, conditions,
and covenants, viz., that if I fail in my part of the agree-
ment, I shall pay the other party such damages as he has
sustained by such my neglect or refusal. 6
A contract may also be either executed, as if A agrees to
change horses with B, and they do it immediately, in which
case the possession and the right are transferred together,
or it may be executory, as if they agree to change next week.
Here the right only vests, and their reciprocal property in
each other's horse is not in possession, but in action; for a
contract executed (which differs nothing from a grant) con-
veys a chose in possession; a contract executory conveys only
a chose in action.
Having thus shown the general nature of a contract, wo
are, secondly, to proceed to the consideration upon which it
is founded, or the reason which moves the contracting party
to enter into the contract. [444] " It is an agreement upon
sufficient consideration." This thing, which is the price or
motive of the contract, we call the consideration; and it
must be a thing lawful in itself, or else the contract is void. 7
A good consideration is that of blood or natural affection
between near relations; the satisfaction accruing from
which the law esteems an equivalent for whatever benefit
may move from one relation to another. This considera-
tion may sometimes, however, be set aside, and the contract
becomes void, when it tends in its consequences to defraud
creditors or other third persons of their just rights. But
a contract for any valuable consideration, as for marriage,
5. As much as they are reasonably from the part which is bad, but not
worth. otherwise. See. generally, as to the
6. See ante, note on Damages. effect of illegality on the contract,
7. Where an agreement is illegal in Clark on Contracts (3d Ed.), 405-432
part only, the part which is good may and cases in notes.
be enforced, if it can be separated
372 OF TITLE BY CONTRACT. [I3ooK II.
for money, for work done, or for other reciprocal contracts,
can never be impeached at law, and if it be of a sufficient
adequate value is never set aside in equity; 8 for the person
contracted with has then given an equivalent to recompense,
and is therefore as much an owner or a creditor as any other
person.
A consideration of some sort or other is so absolutely
necessary to the forming of a contract, that a nudum
pactum [being a simple contract, for in a deed a considera-
tion is conclusively presumed], or agreement to do or pay
any thing on one side, without any compensation on -the
other, is totally void in law, and a man cannot be compelled
to perform it. 9 But any degree of reciprocity will prevent
the pact from being nude; nay, even if the thing be founded
on a prior moral obligation (as a promise to pay a just debt,
though barred by the statute of limitations), it is no longer
mid it in pactum. 1 The rule does not hold in some cases,
where the promise is authentically proved by written docu-
ments. [446] For if a man enters into a voluntary bond,
or gives a promissory note, he shall not be allowed to aver
the want of a consideration in order to evade the payment,
for every bond from the solemnity of 'the instrument, and
every note' from the subscription of the drawer [prim a
facie only in the latter case as between maker and payee]
carries with it an internal evidence of a good consideration.
8. See, however, the preceding note. sufl'tred or undertaken upon like re-
Fraud, duress, infancy, mistake and quest by the . other. See Clark < :i
many other things may constitute a Contracts (3d Ed.), 133.
defence. Clark on Contracts (3d 1. A mere moral obligation is not
Ed.), 272, 245, 297, 190 and cases a sufficient consideration to support
cited in notes. a promise unless it is based upon a
9 The author refers to simple con- preceding legal obligation which
tracts, for a seal at common law con- would be rnforcible but for the opera-
plusively presumes a consideration. tion of some positive rule of law, e. g.,
A valuable consideration is necessary the bar of the Statute of Limitations,
to support a simple contract. It may See note to Wennell v. Adney, 3 B. &
be defined as some right, interest, P 352; Eastwood v. Kenyon, 11 Adol.
profit or benefit accruing upon re- & Ell. 438; Clark on Contracts (3d
quest, express or implied to one Ed.), 136; Mills v. Wyman, 3 Pick,
party, or some forbearance, detri- 207.
ment, loss or responsibility given,
CHAP. XXX.J OF TITLE BY COXTKACT.
Courts of justice will therefore support them both as
against the contractor himself, but not to the prejudice of
creditors, or strangers to the contract. 2
We are next to consider, thirdly, the thing agreed to be
done or omitted. "A contract is an agreement upon suffi-
cient consideration to do or not to do a particular thing.".
The most usual contracts, whereby the right of chattels per-
sonal may be acquired in the laws of England, are 1. That
of sale or exchange; 2. That of bailment; 3. That of hiring
and borrowing; 4. That of debt.
1. Sale, or exchange, is a transmutation of property from
one man to another, in consideration of some price or recom-
X>ense in value, for there is no sale without a recompense:
there must be quid pro quo. If it be a commutation of goods
for goods, it is more properly an exchange; but if it be a
transferring of goods for money, it is called a sale. With
regard to the law of sales and exchanges, there is no differ-
ence. [447] I shall therefore treat of them both under the
denomination of sales only.
Where the vendor hath in himself the property of the
goods sold, he hath the liberty of disposing of them to
whomsoever he pleases, at any time and in any manner,
unless judgment has been obtained against him for a debt
or damages, and the writ of execution is actually delivered
to the sheriff. For then, by the statute of frauds, the sale
shall be looked upon as fraudulent, and the property of the
goods shall be bound to answer the debt from the time of
delivering the writ. Formerly it was bound from the teste,
or issuing of the writ, and any subsequent sale was fraud-
lent; but the law was thus altered in favor of purchasers,
though it still remains the same between the parties. And
therefore if a defendant dies after the awarding and before
the delivery of the writ, his goods are bound by it in the
hands of his executors. 3
2. In the hands of a bona fide pur- By the common law a seal is, as
chaser the defence of want of con- between the parties, conclusive evi-
sideration is not good; but as be- dence of a consideration. This rule
tween the immediate parties to a has been changed by statute in many
promissory note want of a valuable states.
consideration is a good defence. 3. In some states the goods are sub-
374
Or TITLE BY Cox TK ACT.
[BOOK II.
If a man agrees with another for goods at a certain price
he may not carry them away before he hath paid for them,
for it is no sale without payment, unless the contrary be
< -xpressly agreed. 4 And therefore, if the vendor says the
ject to the writ from the time of its
di livery to the sheriff for service, and
in others only from the time of its
lt\y. Consult the local statutes and
Looks on practice.
4. It has long been settled that de-
livery to an agent of the vendee (and
for this purpose common carriers,
packers, and wharfingers, are consid-
eied to stand in that character) is
for most purposes a delivery to the
vtndee himself. But this species of
delivery affords a security to the
vendor, upon credit, which does not
exist where the delivery is actually
made to the vendee himself; for if
the vendor discover that the vendee
is insolvent, or has become bankrupt,
he 'may seize upon the goods so sold
upon credit, and delivered into the
hands of such carrier, etc., at any
time before their actual and complete
delivery to the vendee. This branch
of the law is called stoppage in tran-
Mtu. and though not referred to in
the text, may be properly stated in
this place, from its importance in the
concerns of trade and commerce. This
law is founded upon an equitable
right in the vendor to detain the
goods until the price be paid or ten-
dered, for stoppage in transitu does
not rescind the contract of sale ( 1
Atk. 245, 3 T. R. 466, 6 East. 27):
nnd if the vendor afterwards offer to
deliver them, he may, unless he has
ro*ld them, recover the pries which
he could not do if by stopping in
transitu the sale wa rescinded. 1
Camp. 109; 6 Taunt. 162. The right
extends to every case in which the
contract is in effect a sale, and the
consignor substantially the vendor of
the goods. 3 East, 93; Amb. 399;
3 T. R. 783. It extends also to con-
tracts of exchange, as to an agree-
ment between consignor and consignee
that the latter shall return another
commodity of equal value in payment,
and the fulfilment of which engage-
ment is rendered hazardous by his in-
solvency. Sittings post M. Term,
Guildhall, 1822; 3 Ch. C. L. 346. The
consignor of goods for sale on the
joint account of himself and the con-
signee, may exercise this right in the
event of the bankruptcy or insolvency
of the latter (6 East, 371) ; but it does
not arise between principal and fac-
tor, for the property is never devcslcd
out of the principal, and the factor
as against him has only a right of
lien upon the goods, and he cannot,
after parting with them, repossess
himself of them while in transitu. 1
East, 4; 2 New. R. 64. Nor can the
surety for the payment of the price
of goods, by the vendee, though he
may have accepted the bills drawn
upon him by the consignee for that
purpose, stop the goods in transitu.
1 Bos. & Pul. 563. If a party, being
indebted to another, on the balance
of accounts, including bills of ex-
change running accepted by the lat-
ter, consign goods to him on account
of this balance, the consignor has no
right to stop them in transitu, upon
the consignee becoming insolvent be-
fore the bills are paid. 4 Campb. 31.
If a sale be legalized by license, and
the vendor be an alien enemy, he may
CHAP. XXX.] OF TITLE BY CONTRACT.
375
price of a beast is four pounds, and.tlie vendee says he will
give four pounds, the bargain is struck, and they neither
of them are at liberty to be off, provided immediate posses-
stop the goods in transitu (15 East,
419 ) ; and any authorized agent of the
consignor may exercise the right. See
1 Campb. 369. Though the consign-
ment must be on credit, at least for
some part of the price, yet partial
payment, acceptance of bills on ac-
count of, and not as actual payment,
or the vendor's being indebted to the
vendee in part of the value, will not
defeat the right to resume possession
before actual delivery to the vendee.
7 T. R. 440, 64; 3 East, 93; 2 Vern.
203. It is necessary that the con-
signee should become bankrupt or be
insolvent, for the vendor to exercise
this right. 6 Robinson Ad. R. 321.
It is not necessary that the vendor,
to exercise this right of stoppage,
should actually take possession of the
property consigned by corporal touch;
he may put in his claim or demand
of his right to the goods in transitu,
either verbally or in writing, and it
will be equivalent in law to an actual
stoppage of the goods, provided it be
made before the transit has expired.
2 B. & P. 457, 462; 2 Esp. R. 613;
Co. .B. L. 494; 1 Atk. 245; Amb. 399;
3 East, 394. This right may be exer-
cised by making out a new invoice or
bill of lading (Holt, C. N. P. 338) ; but
such a claim on the part of the con-
signee would not be sufficient to de-
vest the former of his right. 2 Esp.
613: 5 East, 175; 14 East, 308. The
iransitus in goods continues till there
has been an actual delivery to the
vendee or his agent expressly author-
ized for that purpose, with the ex-
press or implied consent of the vendor
to sanction such delivery. 3 T. R.
466; 5 East, 181. The delivery of
goods to the master on board a ship
wholly chartered by the consignee, is
not such a delivery to the vendee as
to put an end to the transitus j for
thjfi master is a carrier of both con-
signor and consignee; and till a ship
is actually at the end of her voyage,
the right of stoppage in transitu con-
tinues; and where a ship came into
port without performing quarantine,
when she ought to have done so, and
the assignees of the consignee, who
had become bankrupt, took possession
of the goods, and the ship was ordered
out of port to perform quarantine,
where an agent of the consignor
claimed the goods on behalf of his
principal, it was held that the con-
signor had properly exercised and
might claim a stoppage in transitu.
1 Esp. 210. And goods deposited in
the king's warehouses under 26 Geo.
III., c. 59, may be stopped in tran-
situ, though they have been claimed
by the consignee. 2 Esp. 663.
On the other hand, the transitus
may be determined by delivery of the
key of the warehouse where the good*
are deposited to the vendee (3 T. R.
464, 8 T. R. 199) ; or payment of rent
for such warehouse to the vendor, or
to the wharfinger with the vendor's
privity. 1 Campb. 452; 2 Camp. 243; 1
Marsh. 257, 8. And in all similar cases
of constructive delivery and accept-
ance, the right to stoppage in tran-
situ is at an end. See 7 Taun. 278 ;
2 Bar. & Cres. 540: 1 Ryan & Moody,
N. P. C. 6, and 3 Chitty's om. L.
340. See, also, Tiffany on Sales (2d
Ed.), 322-338 and notes, where the
cases are collected.
376 OF TITLE BY CONTRACT. [BOOK II.
sion be tendered by the other side. But if neither the
money be paid nor the goods delivered, nor tender made,
nor any subsequent agreement be entered into, it is no con-
tract, and the owner may dispose of the goods as he pleases.
But if any part of the price is paid down, if it be but a
penny, or any portion of the goods delivered by way of
earnest, the property of the goods is absolutely bound by
it ; and the vendee may recover the goods by action, as well
as the vendor may the price of them. [448] And such re-
gard does the law pay to earnest as an evidence of a con-
tract, that, by the same statute, 29 Car. IT. c. 3, 5 no contract
for the sale of goods, to the value of ten pounds or more,
shall be valid unless the buyer [accepts and] actually re-
ceives part of the goods sold, by way of earnest on his part,
unless he gives part of the price to the vendor by way of
earnest to bind the bargain, or in part of payment; or unless
some note in writing be made and signed by the party or
his agent who is to be charged with the contract. And with
regard to goods under the value of ten pounds no contract
or agreement for the sale of them shall be valid unless the
goods are to be delivered within one year, or unless the
contract be made in writing, and signed by the party or
his agent who is to be charged therewith. 6
As soon as the bargain is struck, the property of the goods
is transferred to the vendee, and that of the price to the
vendor; 7 but the vendee cannot take the goods until he
tenders the price agreed on. But if he tenders the money to
the vendor, and he refuses it, the vendee may seize .the
goods, or have an action against the vendor for detaining
them. And by a regular sale, without delivery, the prop-
erty is so absolutely vested in the vendee, that if A sells a
5. Called the Statute of Frauds. Mexico, North Carolina, Ohio, Penn-
6. This section (17) of the statute sylvania, Rhode Island, Tennessee,
has been re-enacted in substance in Texas, Virginia and West Virginia,
most of the states, but not in all. Tiffany on Sales, 63 note. See, gen-
Ci msult the local statutes. See Tif- erally, Browne on the Statute of
fany on Sales (2d Ed.), 62; Clark Frauds (5th Ed., 1895), and the
on C'ontracts (3d Ed.), 121 et seq. works above cited.
It is not in force in Illinois, Alabama, 7. Tiffany on Sales (2d Ed.), 2,
IVhnvur , Kentucky, Louisiana, New 119.
CHAP. XXX.] OF TITLE BY CONTRACT. 377
horse to B for ten pounds and B pays him earnest, or signs
a note in writing of the bargain, and afterwards, before
the delivery of the horse, or money paid, the horse dies in
the vendor's custody, still he is entitled to the money, be-
cause, by the contract the property was in the vendee. [449]
Thus may property in goods be transferred by sale, where
the vendor hath such property in himself.
But property may also in some cases be transferred by
sale, though the vendor hath none at all in the goods. The
general rule of law is, that all sales and contracts of any-
thing vendible, in fairs or markets overt 8 (that is, open),
shall not only be good between the parties, but also be bind-
ing on all those that have any right or property therein.
But if my goods are stolen from me, and sold, out of market
overt, my property is not altered, and I may take them
wherever I find them.
By the civil law an implied warranty was annexed to
every sale in respect to the title of the vendor, and so, too,
in our law a purchaser of goods and chattels may have a
satisfaction from the seller, if he sells them as his own and
the title proves deficient, without any express warranty
for that purpose. 9 [451] But with regard to the goodness
of the wares so purchased, the vendor is not bound to
answer, unless he expressly warrants them to be sound and
8. Tiffany on Sales (2d Ed.), 26. erty, holding under an unrecorded
As a general rule no one can con- deed, may lose his title by the prior
vey a greater title than he has. Sales record of a subsequent deed to a bonct
in market overt were an exception at fide purchaser without notice. See
common law, though not applicable the recording laws of the various,
to the United States. states.
A bona fide purchaser without no- Again, one may estop himself from
lice, of bank notes, and negotiable claiming his own personal property,
paper before maturity, constitutes if he suffers another to sell it as his
another exception. See the leading own to a bona fide purchaser. There
case of Miller v. Race, *1 Burr. 452; may be other exceptions arising un-
1 Smith's Lead. Cases, *597 and notes, der statutes. See. generally, Tiffany
A purchaser of goods whose title is on Sales (2d Ed.), 26 et seq. and
defeasible by fraud may also convey notes.
a good title to a bona fide purchaser 9. Tiffany on Sales (2d Ed.), 242,
without notice of the fraud. 243 and cases cited.
Again, the purchaser of real prop-
378
OF TITLE BY CONTRACT.
[BOOK IL
good, or unless he knew them to be otherwise, and hath
used any art to disguise them, or unless they turn out to be
different from what he represented tbem to the buyer, 1
2. Bailment is a delivery of gocds in trust, upon a con-
tract expressed or implied that the trust shall be faithfully
executed on the part of the bailee. 2 As if cloth be delivered
1. There is an implied warranty of
quality or fitness, (1) where the
buyer relying on the seller's skill an:l
judgment, buys goods for a particular
purpose made known to the vendor;
(2) where the goods are bought by
description from a seller dealing in
such goods and the buyer has no op-
portunity to examine them; (3) where
provisions are sold by a dealer for
immediate consumption. Tiffany on
Sales (3d Ed.), 352 et seq. and notes.
2. The elaborate judgment of Lord
Holt in the celebrated case of Coggs
v. Bernard (Lord Ray, 909; 1 Smith's
Lead. Cases, *283), contains the first
well-ordered exposition of the Eng-
lish law of bailments, and was im-
ported by him into the common law
from the Roman civil law. Since
then it has grown to enormous pro-
portions and includes not only ordi-
nary bailments, but the law of com-
mon carriers. The " Essay on the
Law of Bailments," by Sir Wm. Jones,
the second edition of which was pub-
lished in 1797, adopted substantially
the classification of Lord Holt, which
is still followed in treatises and cases
upon the subject.
Lord Holt distributed all bailments
into six classes, viz.:
1. Dcpositum or a naked bailment
of goods to be kept for the use of the
bailor without recompense.
2. Commodatum, where goods or
chattels that are useful are lent to
the bailee gratis to be used by him.
3. Locatio rei, where goods are de-
livered to the bailee to be used by
him for hire.
4. Yadium, which is a- pawn or
pledge.
5. Locatio operis faciendi, where
goods are delivered to be carried or
something is to be done about them
for a reward to be paid to the bailee.
6. Mandatum, a delivery of goods
to somebody, who is to carry them"
or do something about them gratis.
Bailments are again divided into
these, (1) for the exclusive benefit of
the bailor; (2) for the exclusive bene-
fit of the bailee, and (3) those for the
benefit of both parties.
In the first class of cases the bailee
is held only to slight care and is
liable only for gross negligence. De-
posits and mandates are of this sort.
In the second class, as in commo-
datum, the bailee is held to exercise
great care and is liable for slight
negligence.
In the third class the bailee is held
to exercise ordinary care and is liable
for ordinary negligence.
On grounds of public policy, inn-
keepers and common carriers, are, at
common law, held to be insurers
against everything except the act of
the bailor, the act of God or the public
enemy. In some states the innkeeper
is not regarded as an insurer, but the
loss of the goods makes him prima
facie liable; but he may show him-
self not guilty of negligence. See
local statutes. The extent to which
common carriers may limit their lia-
CHAP. XXX.] OF TITLE BY CONTRACT, 379
or (in our legal dialect) bailed to a tailor to make a suit of
clothes, he has it upon an implied contract to render it
again when made, and that in a workmanly manner. If
money or goods be delivered to a common carrier to convey
from Oxford to London, he is under a contract in law to
pay or carry them to the person appointed. If a horse or
other goods be delivered to an inkeeper or his servants, he
is bound to keep them safely, and restore them when his
guest leaves the house. [452] If a man takes in a horse
or other cattle to graze and depasture in his grounds, which
the law calls agistment, he takes them upon an implied con-
tract to return them' on demand to the owner. If a pawn-
broker receives plate or jewels as a pledge or security for
the repayment of money lent thereon at a day certain, he
has them upon an express contract or condition to restore
them, if the pledger performs his 'part by redeeming them
in due time. And so if a landlord distreins goods for rent,
or a parish officer for taxes, these for a time are only a
pledge in the hands of the distreinors, and they are bound
by. an implied contract in law to restore them on payment
of the debt, duty, and expenses, before the time of sale, or,
when sold, to render back the overplus. If a friend de-
livers anything to his friend to keep for him, the receiver
is bound to restore it on demand. And now the law seems
to be settled that such a general bailment will not charge
the bailee with any loss, unless it happens by gross neglect,
which is an evidence of fraud; but if he undertakes specially
to keep the goods safely and securely, he is bound to take
the same care of them as a prudent man would take of his
own.
In all these instances there is a special qualified property
transferred from the bailor to the bailee, together with the
possession. It is riot an absolute property, because of his
bility by notice and by contract has not insurers of the safety of their
been productive of much litigation and passengers, but are held to the utmost
the literature is too voluminous to b3 degree of care and diligence, so far
summarized. See, generally, Moore as human skill and foresight can go.
on Carriers, and Bender's Law Book Moore on Carriers, 594 et seq. and
Catalogue, 12, 13. casts cited.
Common carriers of passengers are
380 Or TITLE BY CONTRACT. [BOOK II.
contract for restitution, the bailor having still left in him
the right to a chose in action grounded upon such contract.
[453] And on account of this qualified property of the
bailee he may (as well as the bailor) maintain an action
against such as injure or take away these chattels. The
tailor, the carrier, the innkeeper, the- agisting farmer, tho
pawnbroker, the distreinor, and the general bailee may all
of them vindicate, in their own right, this their possessory
interest against any stranger or third person.
3. Hiring and borrowing are also contracts by which a
qualified property may be transferred to the hirer or bor-
rower, in which there is only this difference, that hiring
is always for a price or stipend or additional recompense,
borrowing is merely gratuitous. But the law in both cases
is the same. 3 They are both contracts whereby the posses-
sion and a transient property is transferred for a particular
time or use on condition to restore the goods so hired or
borrowed as soon as the time is expired or use performed,
together with the price or stipend (in case of hiring) either
expressly agreed on by the parties or left to be implied
by law according to the value of the service. By this
mutual contract the hirer or borrower gains a temporary
property in the thing hired, accompanied with an implied
condition to use it with moderation and not to abuse it,
and the owner or lender retains a reversionary interest in
the same, and acquires a new property in the price or
reward.
There is one species of this price or reward, the most
usual of any, when money is lent on a contract to receive
not only the principal sum again, but also an increase by
way of compensation for the use, which generally is called
interest by those who think it lawful, and usury by those
who do not so. 4 [454] If a contract which carries interest
3. Their liability for negligence is in the several states. See Tyler on
different. See supra, note. Usury, Pawns and Pledges (1873);
4. Usury is interest in excess of Webb on Usury (1899). As to the
that allowed by law. The rates of law of usury in general, SPG, also,
conventional and nonconventional in- 3 Chitty's Com. L. 87 to 91, 310 to
terest and the penalties for taking 316; R. B. Comyn on Usury; Ord.
usury are fixed by statutes and vary oil Usury, an'd Plowdcn on Usury.
CHAP. XXX.] OF TITLE BY CONTRACT.
381
be made in a foreign country, our courts will direct the
payment of interest according to the law of that country
in which the contract was made. Thus Irish, American,
Turkish, and Indian interest have been allowed in our
courts to the .amount of even twelve per cent.; for the
moderation or exorbitance of interest depends upon local
circumstances, and the refusal to enforce such contracts
would put a stop to all foreign trade. [464]
Sometimes the hazard may be greater than the rate of
interest allowed by law will compensate. [457] And this
There must be an unlawful intent,
and therefore if the usury arise from
error in computation, it will not viti-
ate. Cro. Car. 501; 2 Bla. Rep. 792;
1 Camp. 149. Exorbitant discount to
induce the acceptor to take up a bill
before it is due is not usurious, be-
cause there must be a loan or for-
bearance of payment, or some devise
for the purpose of concealing, or evad-
ing the appearance of a loan or for-
bearance. 4 East, 55; 5 *Esp. 11;
Peake, 200; 1 B. & P. 144; 4 Taunt.
810. Nor if the charge alleged to be
usurious is fairly referable to the
trouble, expense, etc., in the transac-
tion. 3 B. & P. 154; 4 M. & S. 192;
2 T. R. 238; 1 Mad. Rep. 112; 1
Camp. 177; 15 Ves. 120. Bankers
may charge their usual commission
Ixiyond legal interest. 2 T. R. 52.
Under the direction of the court, it
is the province of the jury to deter-
mine when there is usury in a trans-
action. 4 M. & S. 192; 1 Dowl. &
R. 570; 3 B. & A. 664; 2 Bla. Rep.
864. The purchase of an annuity at
ever so cheap a rate, will not prim a
facie be usurious, but if it be for
years, T7r an express agreement to re-
purchase and on' calculation more
than the principal with legal interest
is to be returned, it will. 3 B. & P.
151; 3 if. & A. 566. And if part of
the advance be in goods, it must be
shown that they were not overcharged
in price. Doug. 735; 1 Esp. 40; 2
Camp. 375; Holt, N. P. C. 256. A
loan made returnable on a certain
day, on payment of a sum beyond
legal interest, on default thereof may
be a penalty and not usurious inter-
est, the intention of the parties being
the criterion in all cases. If money
be lent on risk at more than legal in-
terest, and the casualty affects the
interest only, it is usury, not so, if it
affects the principal also. Cro. J.
508; 3 Wils. 395. The usury must be
part of the contract in its inception,
and being void in its commencement,
it is so in all its stages, Doug. 735;
1 Stark. 385; though bills of exchanga
so tainted, are by the 58 Geo. Ill,
c. 93, rendered valid in the hands of
a bona fide holder, unless he has act-
ual notice of the usury, but if the
drawer of a bill transfer it for a valu-
able consideration, he cannot set up
antecedent usury with the acceptor as
a defence. 4 Bar. & Aid. 215. A
security with legal interest only, sub-
. stituted for one that is usurious, is
valid. 1 Camp. 165 n.; 2 Taunt. 184;
2 Stark. 237 Taking usurious inter-
est on a bona fide debt, does not de-
stroy the debt. 1 H. B. 462; 1 T.
R 153; 2 Ves. 567; 1 Saund. 295.
382
OF TITLE BY CONTRACT.
[BOOK II.
gives rise to the practice of, 1. Bottomry, or r
2. Policies of insurance; 3. Annuities upon lives.
And first, bottomry 5 is in the nature of a mortgage of a
ship, when the owner takes up .money to enable him to carry
on his voyage, and pledges the keel or bottom of the ship
(part cm pro toto) as a security for the repayment. In
which case it is understood that if the ship be lost the lender
loses also his whole money, but if it returns in safety, then
he shall receive back his principal, and also the premium
or interest agreed upon, however it may exceed the legal
rate of interest. And this is allowed to be a valid contract
in all trading nations for the benefit of commerce, and by
5. See in general, Abbott on Ship-
ping, 143; 2 Holt, 398; 3 Chitty's
Com. L. 313 to 316. The general na-
ture of o respondentia bond is this,
the borrower binds himself in a large
prnal sum, upon condition that the
obligation shall be void, if he pay the
lender the sum borrowed and so much
a month from the date of the bond
till the ship arrives at a certain port,
or if the ship be lost or captured in
the course of the voyage. The re-
spondentia interest is frequently at
the rate of forty or fifty per cent, or
in proportion to the risk and profit
of the voyage. The respondentia
lender may insure his interest in the
success of the voyage, but it must
be expressly specified in the policy to
be respondentia interest (3 Burr.
1391); unless there is a particular
usage to the contrary. Park. Ins. 11.
A lender upon respondentia is not
obliged to pay salvage or average
losses, but We is entitled to receive
the whole sum advanced, provided the
ship and cargo arrive at the port of
destination: nor will he lose the bene-
fit of the bond, if an accident happens
by the default of the borrower or the
captain of the ship. Ib., 421. Nor
will a temporary capture, or any dam-
age short of the destruction of the
ship, defeat his claim. 2 Park. 626,
7; 1 M. & S. 30.
Where bottomry bonds are sealed,
and the money paid, the person bor-
rowing runs the hazard of all injuries
by storm, fire, etc., before the begin-
ning of the voyage, unless it be other-
wise provided. As, that, if the ship
shall not arrive at such a place at
such a time, etc., then the contract
hath a beginning from the time of
sealing; but if the condition be, that
if such ship shall sail from London
to any port abroad, and shall not
arrive there, etc., then, etc., the con-
tingency hath not its beginning till
the departure. Beawes Lex. Merc.
143; Park. 626. A lender on bot-
tomry or respondentia is not liable to
contribute in the case of general av-
erage, nor is he entitled to the benefit
of salvage. Park. 627, 629; 4 M. >t
Selw. 141. See, however, Marshal on
Insurance, 6 Ch. book 2. In the case
of hypothecation, the lender may re-
cover the ship itself in the admiralty
court, but not in bottomry or respon-
dentia. See 6 Moore, 397.
See in general, Park & Marshal on
Insurances, and 3 Chitty.Com. L. 445
to 536.
CHAP. XXX.] OF TITLE BY CONTRACT. 383
reason of the extraordinary hazard run by the lender. [458]
And in this case the ship and tackle, if brought home, are
answerable (as well as the person of the borrower) for the
money lent. But if the loan is not upon the vessel, but upon
the goods and merchandise, which must necessarily be sold
or exchanged in the course of the voyage, then only the bor-
rower personally is bound to answer the contract; who
therefore in this case is said to take up money at respon-
dentia.
Secondly, a policy of insurance is a. contract between A
and B, that upon A's paying a premium equivalent to the
hazard run, B will indemnify or insure him against a par-
ticular event. Insurances being contracts, the very es-
sence of which consists in observing the purest good faith
and integrity, they are vacated by any the least shadow
of fraud or undue concealment. 6 [460]
4. By a debt, a chose in action, or right to a certain sum
of money, is mutually acquired and lost. This may be
the counterpart of, and arise from any of the other species
of contracts. As in case of a sale, where the price is not
paid in ready money, the vendee becomes indebted to the
vendor for the sum agreed on, and the vendor has a prop-
erty in this price, as a chose in action, by means of this
contract of debt. Any contract, in short, whereby a de-
terminate sum of money becomes due to any person and is
not paid, but remains in action merely, is a contract of
debt. And taken in this light, it comprehends a great
variety of acquisition, being usually divided into debts of
record, debts by special, and debts by simple contract. [465]
A debt of record is a sum of money which appears to be
due by the evidence of a court of record. 7 Thus, when any
specific sum is adjudged to be due from the defendant to
6. It may also be laid down as a insurance, Arnold on Marine Insur-
general rule applicable to all sorts of ance, 2 vols. (1901) ; May on Insur-
insurance, that the party insured ance, 2 vols. (1900); Vance on In-
nnist have an interest in the subject- urance (1904); Pingrey on Surety-
matter of the insurance, and that if ship and Guaranty (2d Ed., 1913).
he has not the policy is what is called 7. At common law an action of debt
a wagering policy, and void. See, lies upon a judgment for money,
generally, as to fire, life and marine
384 OF TITLE BY CONTRACT. [BOOK TI.
the plaintiff on an action or suit at law, this is a contract
of the highest nature, being established by the sentence of
a court of judicature. Debts upon recognizance 8 are also
a sum of money, recognized or acknowledged to be due to
the crown or a subject, in the presence of some court or
magistrate, with a condition that such acknowledgment
shall be void upon the appearance of the party, his good
behavior, or the like; and these, together with statutes
merchant and statutes staple, &c., if forfeited by non-per-
formance of the condition, are also ranked among this first
and principal class of debts, viz., debts of record.
Debts by specialty, 9 or special contract, are such whereby
a sum of money becomes, or is acknowledged to be due by
deed or instrument under seal. Such as by deed of cov-
enant, by deed of sale, by lease reserving rent, or by bond
or obligation.
Debts by simple contract 1 are such where the contract
upon which the obligation arises is neither ascertained by
matter of record nor yet by deed or special instrument, but
by mere oral evidence, the most simple of any, or by notes
unsealed, which are capable of a more easy proof, and
(therefore only) better than a verbal promise. [466] It is
easy to see into what a vast variety of obligations this last
class may be branched out, through the numerous con-
tracts for money, which are not only expressed by the par-
ties, but virtually implied in law. I shall only observe at
present that, by the statute 29 Car. II. c. 3, no executor or
administrator shall be charged upon any special promise to
answer damages out of his own estate, and no person shall
be charged upon any promise to answer for the debt or
default of another, or upon any agreement in consideration
of marriage, or upon any contract or sale of any real estate,
or upon any agreement that is not to be performed within
one year from the making, unless the agreement of some
memorandum thereof be in a writing, and signed by ths
party himself or by his authority. 2
8. Enforced at common law by writ 1. Enforcible by action of debt or
of ttcire facias. assumpsit,
9. Enforcible by action of debt. 2. This section of the Statute of
CHAP. XXX.] OF TITLE BY CONTRACT. 385
But there is one species of debts upon simple contract
which deserves a more particular regard. These are debts
by bills of exchange and promissory notes.
A bill of exchange is an open letter of request from one
man to another, desiring him to pay a sum named therein
to a third person on his account; 3 by which means a man
at the most distant part of the world may have money re-
mitted to him from any trading country. In common speech
such a bill is frequently called a draft, but a bill of ex-
change is the more legal as well as mercantile expression.
The person, however, who writes this letter is called in law
the drawer, and he to whom it is written the drawee [after
he has accepted it he is called the acceptor} ; and the third
person, or negotiator, to whom it is payable (whether es-
pecially named, or the bearer generally) is called the payee.
These bills are either foreign or inland: foreign, when
drawn by a merchant residing abroad upon his correspond-
ent in England, or vice versa; and inland, when both the
drawer and the drawee reside within the kingdom. For-
merly foreign bills of exchange were much more regarded
in the eye of the law than inland ones, as being thought of
more public concern in the advancement of trade and com-
merce. But now by two statutes, the one 9 & 10 W. III.
c. 17, the other 3 & 4 Anne, c. 9, inland bills of exchange
are put upon the same footing as foreign ones; what was
Frauds has been re-enacted in sub- called "Negotiable Instruments Law"
stance in most, if not all, the states. has been enacted. With slight changes
It has occasioned so much litigation it has become the law in 47 states,
that every word of it is said to have territories and possessions of . the
cost a subsidy. See. generally, Browne United States. In 16 of these the see-
on Statute of Frauds. 5th Ed., tion numbering is the same. - This
(1895); Clark on Contracts (3d Ed.), statute is mainly declaratory of the
78-132; Tiffany on Sales (3d Ed.), common law. For a list of the states
chap. 2. in which it is effective, tables show-
3. Eaton & Gilbert Com. Paper ing the numbering of the sections in
(1903), 4. different states and the statute itself,
In 1882 Great Britain enacted a see Norton on Bills and Notes (4th
" Bills of Exchange Act" (45 & 46 Ed., 1914), pages 601 to 656. The
Viet., c. 61) ; and in many of the states statute is too voluminous to be here
of this country more recently the so- reproduced.
25 ""-*
3SG OF TITLE BY CONTRACT. [BOOK IT.
the law and custom of merchants 4 with regard to the one,
and taken notice of merely as such, being by those statutes
expressly enacted with regard to the other. J3o that now
there is not in law any manner of difference between them
[except that in the case of foreign bills protest is neces-
sary]. 5
Promissory notes, or notes of hand, are a plain and di-
rect engagement in writing to pay a sum specified at the
time therein limited to a person therein named, or some-
times to his order, or often to the bearer at large. 6 These
also, by the same statute, 3 & 4 Anne, c. 9, are made assign-
able and indorsable in like manner as bills of exchange.
[468] The payee, either of a bill of exchange or promis-
sory note, has clearly a property vested in him (not indeed
in possession but in action) by the express contract of the
drawer in the case of a promissory note, and, in the case of a
bill of exchange, by his implied contract, viz., that, provided
the drawee does not pay the bill, the drawer will : for which
reason it is usual in bills of exchange to express that the
value thereof hath been received by the drawer; in order
to shew the consideration, upon which the implied contract
of repayment arises. And this property may be transferred
and assigned from the payee to any other man; contrary to
the general rule of common law, that no chose in action is
assignable: which assignment is the life of paper credit.
In the first place, then, the payee, or person to whom or
whose order such bill of exchange or promissory note is
payable, may by indorsement, or writing his name in dorso,
or on the back of it, assign over his whole property to the
bearer, or else to another person by name, either of whom
is then called the indorsee; and he may assign the same to
4. These customs are now and long 6. Eaton & Gilbert, Com. Paper, 17.
have been a part of the general law As to other forms of commercial pa-
of the land, i. e., are a part of the per, viz., due bills and I. O. U.'s, cer-
common law. 2 Bouvier Law Diet, tificatfs of deposit, checks, bills of
Law Merchant, and authorities cited; lading, letters of credit, bonds and
Eaton & Gilbert on Commercial Pa- coupons and certificates of stock, see
per, 3 and cases cited. Eaton & Gilbert (supra), 23-38 and
5 S*e Buckner v. Finley, 2 Pet. notes. See vol. 2 of this series.
(U. S.) 586.
CHAP. XXX.] OF TITLE BY CONTRACT. 387
another, and so on m infinitutn. 7 And a promissory note,
payable to A or bearer, is negotiable without any indorse-
ment, and payment thereof may be demanded by any
bearer of it. But in case of a bill of exchange, the payee, or
the indorsee (whether it be a general or particular indorse-
ment), is to go to the drawee and offer his bill for accept-
ance; which acceptance (so as to charge the drawer with
costs) must be in writing, under or on the back of the bill. 8
f469] If the drawee accepts the bill, either verbally or in
writing, he then makes himself liable to pay it; this being
now a contract on his side, grounded on an acknowledgment
that the drawer has effects in his hands, or at least credit
sufficient to warrant the payment. If the drawee refuses
to accept the bill, and it be of the value of 20/. or upwards,
and expressed to be for value received, the payee or in-
dorsee may protest it for non-acceptance, which protest
must be made in writing, under a copy of such bill of ex-
change, by some notary public; or, if no such notary be
resident in the place, then by any other substantial inhab-
itant in the presence of two credible witnesses, and notice
of such protest must, within fourteen days after, be given
to the drawee. 9
But in case such bill be accepted by the drawee, and after
acceptance he fails or refuses to pay it within three days
after it becomes due (which three days are called days of
grace), 1 the payee or indorsee is then to get it protested
for non-payment 2 in the same manner and by the same
person who are to protest it in case of non-acceptance, and
7. See Eaton & Gilbert, Com. Pa- when the bill is payable a certain
per, 317, 352 and cases cited. time after sight. Notice must now
8. Except as changed by statute be given to the immediate indorser,
the acceptance of a bill of exchange within a reasonable time, usually the
may be verbal as well as written. next day. Eaton & Gilbert, Com. Pa-
Eaton & Gilbert Com. Paper, 594 and per, 502-507. See local statutes,
casrs collected in the notes. The usual 1. See Eaton & Gilbert, Com. Pa-
form of acceptance is by writing upon per, 476. Days of grace are abol-
the face of the bill the word " ac- ished by statute in some of the states,
eepted " with the signature of the 2. See, generally, Eaton & Gilbert,
drawee subscribed. Eaton & Gilbert, Com. Paper, 611. Rfgulated by stat-
Com. Paper, 595. ute in some states. Id.
9. Acceptance is now only necessary
383 OF TITLE BY CONTRACT. [BOOK II.
such protest must also be notified, within fourteen days
after, to the drawer. And he, on producing such protest,
either of non-acceptance or non-payment, is bound to make
good to the payee or indorsee, not only the amount of the
said bills (which he is bound to do within a reasonable time
after non-payment, without any protest, by the rules of
the common law), but also interest and all charges, to be
computed from the time of making such protest. But if
no protest be made or notified to. the drawer, and any
damage accrues by such neglect, it shall fall on the holder
of the bill. The bill when refused must be demanded of the
drawer as soon as conveniently may be; for though, when
one draws a bill of exchange, he subjects himself to the pay-
ment, if the person on whom it is drawn refuses either to
accept or pay, yet that is with this limitation, that if the
bill be not paid when due, the person to whom it is payable
shall in convenient time give the drawer notice thereof, for
otherwise the law will imply it paid. Since it would be
prejudicial to commerce if a bill might rise up to charge
the drawer at any distance of time, when in the mean time
all reckonings and accounts may be adjusted between the
drawer and the drawee. [470]
If the bill be an indorsed bill, and the indorsee cannot get
the drawee to discharge it, he may call upon either the
drawer or the indorser, or if the bill has been negotiated
through many hands, upon any of the indorsers; for each
indorser is a warrantor for the payment of the bill, 3 which
is frequently taken in payment as much (or more) upon
3. The Negotiable Instruments Law time of his indorsement valid and
of New York, 115, which is declara- subsisting and in addition he engages
tory of the common law, provides that on due presentment it shall be
that " Every indorser who indorses accepted or paid, or both, as the case
without qualification, warrants to all may be, according to its terms; and
subsequent holders in due course: that if dishonored and the neces-
'" 1. That the instrument is genu- sary proceedings on dishonor be duly
ine and in all respects what it pur- taken, he will pay the amount there-
ports to be; of to the holder or to any subsequent
"2. That he has a good title to it; indorser who may be. compelled to
,. " 3. That all prior parties had ca- pay it." Eaton & Gilbert, Com. Pa-
pacity to contract; per, 418, 424 and cases cited.
" 4. That the instrument is at tlw
CHAP. XXX.] OF TITLE BY CONTRACT. 389
the credit of the indorser as of the drawer. And if such
indorser, so called upon, has the names of one or more in-
dorsers prior to his own, to each of whom he is properly
an indorsee, he is also at liberty to call upon any of them
to make him satisfaction, and so upwards. But the first
indorser has nobody to restort to but the drawer only.
What has been said of bills of exchange is applicable
also to promissory notes that are indorsed over and nego-
tiated from one hand to another, only that in this case, as
there is no drawee, there can be no protest for non-accept-
ance; or rather, the law considers a promissory note in the
light of a bill drawn by a man upon himself and accepted
at the time of drawing. And in case of non-payment by
the drawer, the several indorsees of a promissory note have
the same remedy as upon bills of exchange against the prior
indorsers.
390 OF TITLE BY BANKRUPTCY. [BooK II.
CHAPTER XXXI.
OF TITLE BY BANKRUPTCY. 1
X. Bankruptcy; a title which we before lightly touched
upon. 2 At present we are to treat of it more minutely, as
it principally relates to the disposition of chattels, in which
the property of persons concerned in trade more usually
consists, than in lands or tenements. Let us, therefore,
first of all consider, 1. Who may become a bankrupt: 2.
What acts make a bankrupt: 3. The proceedings on a com-
mission of bankrupt: and, 4. In what manner an estate in
goods and chattels may be transferred by bankruptcy.
1. Who may become a bankrupt. 21 A bankrupt was be-
fore 3 defined to be " a trader, who secretes himself," or
" does certain other acts, tending to defraud his creditors."
He was formerly considered merely in the light of a crimi-
nal or offender. [472] But at present the laws of bank-
ruptcy are considered as laws calculated for the benefit of
trade, and founded on the principles of humanity as well
as justice; and to that end they confer some privileges, not
only on the creditors, but also on the bankrupt or debtor
himself. On the creditors, by compelling the bankrupt to
give up all his effects to their use, without any fraudulent
concealment: on the debtor, by exempting him from the rigor
of the general law, whereby his person might be confined at
the discretion of his creditor, though in reality he has nothing
to satisfy the debt: whereas the law of bankrupts taking into
consideration the sudden and unavoidable accidents to which
men in trade are liable, has given them the liberty of their
1. The United States Bankruptcy debts in any amount, no matter how
Acts of 1800, 1841, 1867, 1898, with small, may file a voluntary petition
the amendments of 1903, 1906 and in bankruptcy. Collier on Bank-
1910, will be found printed in full in ruptcy (10th Ed.), 121. Corporations
the 10th Edition of Collier on Bank- may become voluntary bankrupts. Id.
ruptcy (1914), 1337-1420. 122. As to who may be adjudged in-
2. See page *285. voluntary .bankrupts, see Id. 127. The
2a. I'nder the present act of Con- debtor must owe at least $1,000. Id.
gress (1910), any person who owes 3. Ibid.
CHAP. XXXL] OF TITLE BY BANKRUPTCY. 391
persons, and some pecuniary emoluments, upon condition
they surrender up their whole estate to be divided among
their creditors.
The first statute made concerning any English bank-
rupts was 34 Hen. VIII. c. 4, when trade began first to be
properly cultivated in England: which has been almost to-
tally altered by statute 13 Eliz. c. 7, whereby bankruptcy is
confined to such persons only as have used the trade of mer-
chandise, in gross or by retail, by way of bargaining, ex-
change, re-change, bartering, chevisance, or otherwise; or
have sought their living by buying and selling. And by
statute 21 Jac. I. c. 19, persons using the trade or profession
of a scrivener, receiving other men's monies and estates into
their trust and custody, are also made liable to the statutes
of bankruptcy; and the benefits, as well as the penal parts
of the law, are [475] extended as well to aliens and denizens
as to natural-born subjects; being intended entirely for the
protection of trade, in which aliens are often as deeply con-
cerned as natives. 4 By many subsequent statutes, but lastly
by statute 5 Geo. II. c. 30, bankers, brokers, and factors,
are declared liable to the statutes of bankruptcy; and this
upon the same reason that scriveners are included by the
statute of James I., viz., for the relief of their creditors;
whom they have otherwise more opportunities of defrauding
than any other set of dealers; and they are properly to be
looked upon as traders, since they make merchandise of
money, in the same manner as other merchants do of goods
and other moveable chattels. But by the same act, no
farmer, grazier, or drover, shall (as such) be liable to be
deemed a bankrupt : for, though they buy and sell corn, and
hay, and beasts, in the course of husbandry, yet trade is not
their principal, but only a collateral, object ; their chief con-
cern being to manure and till the ground, and make the best
advantage of its produce. A receiver of the king's taxes is
not capable, as such, of being a bankrupt ; lest the king should
be defeated of those extensive remedies against his debtors,
which are put into his hands by the prerogative. By the
same statute, no person shall have a commission of bankrunt.
4. Sec now 46 & 47 Viet., ch. 52.
392 OF TITLE BY BANKRUPTCY. [BOOK II.
awarded against him, unless at "the petition of some one
creditor, to whom he owes 100/. ; or of two, to whom he is in-
debted ISO/.; or of more, to whom altogether he is indebted
200/. For the law does not look upon persons whose debts
amount to less, to be traders considerable enough, either to
enjoy the benefit of the statutes themselves, or to entitle the
creditors, for the benefit of public commerce, to demand the
distribution of their effects. 5 [47G]
One single act of buying and selling will not make a man
a trader; but a repeated practice, and profit by it. Buying
and selling bank-stock, or other government securities, will
not make a man a bankrupt; they not being goods, wares,
or merchandise, within the intent of the statute, by which
a profit may be fairly made. Neither will buying and sell-
ing under particular restraints, or for particular purposes;
as, if a commissioner of the nav3 7 uses to buy victuals for
the fleet, and disposes of the surplus and refuse, he is not
thereby made a trader within the statutes. [477] An in-
fant, 6 though a trader, cannot be made a bankrupt; for an
infant can owe nothing but for necessaries : and the statutes
of bankruptcy create no new debts, but only give a speedier
and more effectual remedy for recovering such as were be-
fore due: and no person can be made a bankrupt for debts-
which he is not liable at law to pay. But a feme-covert in
London, being a sole trader according to the custom, is
liable to a commission of bankrupt. 7
2. By what acts a man may become a bankrupt. A
bankrupt is " a trader, who secretes himself, or does cer-
tain other acts, tending to defraud his creditors. ' ' In gen-
eral whenever such a trader, as is before described, hath
endeavored to avoid his creditors, or evade 'their just de-
mands, this hath been declared by the legislature to be an
act of bankruptcy, upon which a commission may be sued
out. For, in this extrajudicial method of proceeding, which
is allowed merely for the benefit of commerce, the law is
5. The debtor in the United States 7. They may bscome bankrupts in
must owe at least $1.000. Collier on all the states where they can con-
Uankruptcy. 127. tract debts. Id., 126.
6. Collier on Bankruptcy, 124.
CHAP. XXXI. ] OF TITLE BY BANKRUPTCY. 303
extremely watchful to detect a man whose circumstances
are declining, in the first instance, or at least as early as
possible; that the creditors may receive as large a propor-
tion of their debts as may be; and that a man may not go
on wantonly wasting his substance* and then claim the
benefit of the statutes, when he has nothing left to dis-
tribute.
To learn what the particular acts of bankruptcy are,
which render a man a bankrupt, we must consult the several
statutes, and the resolutions formed by the courts thereon.
[478] Among these may therefore be reckoned, 1. Depart-
ing from the realm, whereby a man withdraws himself from
the jurisdiction and coercion of the law, w T ith intent to de-
'fraud his creditors. 2. Departing from his own house, with
intent to secrete himself, and avoid his creditors. 3. Keep-
ing in his own house, privately, so as not to be seen or
spoken with by his creditors, except for just and necessary
cause, which is likewise construed to be an intention to de-
fraud his creditors, by avoiding the process of the law,
4. Procuring or suffering himself willing to be arrested,
or outlawed, or imprisoned, without just and lawful cause;
which is likewise deemed an attempt to defraud his cred-
itors. 5. . Procuring his money, goods, chattels, and effects,
to be attached or sequestered by any legal process; which
is another plan and direct endeavor to disappoint his cred-
itors of their security. 6. Making any fraudulent convey-
ance to a friend, or secret trustee, of his lands, tenements,
goods, or chattels; which is an act of the same suspicious
nature with the last. 7. Procuring any protection, not
being himself privileged by parliament, in order to screen
his person from arrests; which also is an endeavor to elude
the justice of the law. 8. Endeavoring or desiring, by
any petition to the king, or bill exhibited in any of the
king's courts against any creditors, to compel them to take
less than their just debts; or to procrastinate the time of
payment originally contracted for; which are an acknowl-
edgment of either his poverty or his knavery. 9. Lying in
prison for two months, or more, upon arrest or other deten-
tion for debt, without finding bail in order to obtain his
304 OF TITLE BY BANKRUPTCY. [BOOK II.
liberty. 10. Escaping from prison after an arrest for a
just debt of 100J. or upwards. [479] For, no man would
break prison, that was able and desirious to procure bail;
which brings it within the reason of the last case. 11. Neg-
lecting to make satisfaction for any just debt to the amount
of 100/. within two months after service of legal process
for such debt, upon any trader having privilege of parlia-
ment.
These are the several acts of bankruptcy, expressly de-
fined-by the statutes relating to this title, 8 which being so
numerous, and the whole law of bankrupts being an innova-
tion on the common law, our courts of justice have been
tender of extending or multiplying acts of bankruptcy by
any construction or implication.
3. The proceedings on a commission of bankrupt; so far
as they affect the bankrupt himself. [480] And these de-
pend entirely on the several statutes of bankruptcy; all
which I shall endeavor to blend together, and digest into a
concise methodical order.
And, first, there must be a petition 9 to the Lord 'Chancel-
lor by one creditor to the amount of 100/., or by two to the
amount of 1507., or by three or more to the amount of 200/. ;
which debts must be proved by affidavit, upon which he
grants a commission to such discreet persons as to him shall
seem good, who are then stiled commissioners of bankrupt.
The petitioners, to prevent malicious applications, must be
bound in a security of 2007. to make the party amends in
case they do not prove him a bankrupt. When the com-
8. The acts of bankruptcy under the (5) admitting in writing .his inabil-
United States statute consist in gen- ity to pay his debts and his willing-
eral terms of (1) fraudulently con- ness to be adjudged a bankrupt,
veying or concealing, etc., of his prop- 9. As to the petition, process,,
erty with intent to defraud his cred- pleadings and adjudication, see, gen-
itors; (2) a preference by transfer erally, Collier on Bankruptcy (10th
of his property while insolvent, of one Ed., 1914), 406 et seq. The scope of
or more of his creditors; (3) suffer- this work will not warrant the space
ing a creditor to obtain a preference necessary for a full consideration of
l>y Itgal proceedings, etc.; (4) mak- this subject. See, generally, Collier
ing a general assignment for the on Bankruptcy, which is the most re-
lt in-fit of his creditors, or being in- cent work on this subject,
solvent applying for a receiver; or
CHAP. XXXI.] OF TITLE BY BANKRUPTCY. 395
mission is awarded and issued, the commissioners are to
meet, at their own expense, and to take ah oath for the clue
execution of their commission, and to be allowed a sum not
exceeding 20s. per diem each, at every sitting. And no com-
mission of bankrupt shall abate, or be void, upon any demise
of the crown.
When the commissioners have received their commission,
they are first to receive proof of the person's being a trader,
and having committed some act of bankruptcy; and then to
declare him a bankrupt, if proved so; and to give notice
thereof in the Gazette, and at the same time to appoint three
meetings. At one of these meetings an election must be
made of assignees, or persons to whom the bankrupt's estate
shall be assigned, and in whom it shall be vested for the
benefit of the creditors; which assignees are to be chosen by
the major part, [481] in value, of the creditors who shall
then have proved their debts : but may be originally appointed
by the commissioners, and afterwards approved or rejected
by the creditors : but no creditor shall be admitted to vote in
the choice of assignees, whose debt on the balance of ac-
counts does not amount to 10/. And at the third meeting, at
farthest, which must be on the forty-second day after the
advertisement in the Gazette (unless the time be enlarged by
the Lord Chancellor), the bankrupt, upon notice also per-
sonally served upon him, or left at his usual place of abode,
must surrender himself personally to the commissioners;
which surrender (if voluntary) protects him from all arrests
till his final examination is past : and he must thenceforth in
all respects conform to the directions of the statutes of bank-
ruptcy ; or, in default of either surrender'or conformity, shall
be guilty of felony without benefit of clergy, and shall suf-
fer death, and his goods and estate shall be distributed among
his creditors. 1
In case the bankrupt absconds, or is likely to run away,
between the time of the commission issued, and the last day
of surrender, he may by warrant from any judge or justice
of the peace be apprehended and committed to the county
gaol, in order to be forthcoming to the commissioners; who
1* The rigor of the law lias in this respect been relaxed.
396 OF TITLE BY BANKRUPTCY. [BOOK TT.
are also empowered immediately to grant a warrant for seiz-
ing his goods and papers.
When the bankrupt appears, the commissioners are to
examine him touching all matters relating to his trade and
effects. They may also summon before them, and examine
the bankrupt's wife and any other person whatsoever, as to
all matters relating to the bankrupt's affairs. And in case
any of them shall refuse to answer, or shall not answer fully,
to any lawful question, or shall refuse to subscribe such their
examination, the commissioners may commit them to prison
without bail, till they submit themselves and make and sign
a full answer ; the commissioners specifying in their warrant
of commitment the question so refused to be answered. And
any gaoler permitting such person to escape or go out of
prison, shall forfeit 500?. to the creditors.
The bankrupt, upon this examination, is bound upon
pain of death, [482] to make a full discovery of all his es-
tate and effects, as well in expectancy as possession, and
how he has disposed of the same; together with all books
and writings relating thereto : and is to deliver up all in his
own power to the commissioners (except the necessary ap-
parel of himself, his wife, and his children) ; or, in case he
conceals or embezzles any effects to the amount of 20?., or
withholds any books or writings, with intent to defraud his
creditors, he shall be guilty of felony without benefit of
clergy; and his goods and estates shall be divided among
his creditors. And unless it shall appear that his inability
to pay his debts arose from some casual loss, he may, upon
conviction by indictment of such gross misconduct and neg-
ligence, be set upon the pillory for two hours, and have one
of his ears nailed to the same and cut off.
After the time allowed to the bankrupt for such discovery
is expired, any other person voluntarily discovering any part
of his estate, before unknown to the assignees, shall be enti-
tled to five per cent, out of the effects so discovered, and such
further reward as the assignees and commissioners shall
think proper. And any trustee wilfully concealing the estate
of any bankrupt, after the expiration of the two and forty
days, shall forfeit 100?.. and double the value of the estate
concealed, to the creditors.
CHAP. XXXI.] OF TITLE BY BANKRUPTCY. 397
Hitherto, every thing is in favor of the creditors; and the
law seems to be pretty rigid and severe against the bankrupt;
but, in case he proves honest, it makes him full amends for all
this rigor and severity. For, if the bankrupt hath made an
ingenuous discovery (of the truth and sufficiency of which
there remains no reason to doubt), and hath conformed in
all points to the directions of the law; and if, in consequence
thereof, the creditors, or four parts in five of them in num-
ber and value (but none of them creditors for less than 20/. ),
will sign a certificate to that purport; the commissioners are
then to authenticate such certificate under their hands and
seals, and to transmit, it to the Lord Chancellor; and he, or
two of the judges whom he shall appoint, on oath made by
the bankrupt that such certificate was obtained without
fraud, may allow the same; or disallow it, upon cause shewn
by any of the. creditors of the bankrupt. [483]
If no cause be shewn to the contrary, the certificate is al-
lowed of course; and then the bankrupt is entitled to a
decent and reasonable allowance out of his effects, for his
future support and maintenance, and to put him in a way of
honest industry. This allowance is also in proportion to his
former good behavior, in the early discovery of the decline
of his affairs, and thereby giving his creditors a larger divi-
dend. For, if his effects will not pay one-half of his debts,
or ten shillings in the pound, he is left to the discretion of the
commissioners and assignees, to have a competent sum al-
lowed him, not exceeding three per cent.; but if they pay
ten shillings in the pound, he is allowed five per cent.; if
twelve shillings and six-pence, then seven and a, half per
cent.; and if fifteen shillings in the pound, then the bankrupt
shall be allowed ten per cent.; provided that such allowance
do not, in the first case, exceed 200L, in the second, 250L,
and in the third, 3007.
Besides this allowance, he has also an indemnity granted
him, of being free and discharged for ever from all debts
owing by him at the time he became a bankrupt; even
though judgment shall have been obtained against him, and
he lies in prison upon execution for such debts; and, for
that, among other purposes, all proceedings on commissions
398 OF TITLE BY BANKRUPTCY. [BOOK II.
of bankrupt are, on petition, to be entered of record, as a
perpetual bar against actions to be commenced on this
account: though, in general, the production of the certifi-
cate, properly allowed, shall be sufficient evidence of all
previous proceedings. Thus, the bankrupt becomes a
clear man again: and, by the assistance of his allowance and
his own industry, may become a useful member of the com-
monwealth; which is the rather to be expected, as he can-
not be entitled to these benefits, unless his failures have
been owing to misfortunes, rather than to misconduct and
extravagance. [484]
4. How such proceedings affect or transfer the estate
and property of the bankrupt. At present, we are only
to consider the transfer of things personal by this operation
of law.
By virtue of the statutes before mentioned, all the personal
estate and effects of the bankrupt are considered as vested,
by the act of bankruptcy, in the future assignees of his com-
missioners, whether they be goods in actual possession, or
debts, contracts, and other choses in action: and the commis-
sioners by their warrant may cause any house or tenement
of the bankrupt to be broke open, in order to enter upon and
seize the same. And when the assignees are chosen or ap-
proved by the creditors, the commissioners are to assign
every thing over to them; and the property of every part of
the estate is thereby as fully vested in them, as it was in the
bankrupt himself, and they have the same remedies to re-
cover it.
The property vested in the assignees is the whole that
the bankrupt had in himself, at the time he committed tha
first act of bankruptcy, or that has been vested in him since,
before his debts are satisfied or agreed for. Therefore, it is
usually said, that once a bankrupt, and always a bankrupt;
by which is meant, that a plain direct act of bankruptcy once
[48G] committed cannot be purged or explained away by
any subsequent conduct, as a dubious equivocal act may be;
but that, if a commission is afterwards awarded, the com-
mission and the property of the assignee shall have a relation,
or reference, back to the first and original act of bankruptcy.
CHAP. XXXI.] OF TITLE BY BANKRUPTCY. 399
Insomuch that all transactions of the bankrupt are from that
time absolutely null and void, either with regard to the
alienation of his property, or the receipt of his debts from
such as are privy to his Bankruptcy; for they are no longer
his property, or his debts, but those of the future assignees.
And if an execution be sued out, but not served and executed
on the bankrupt's effects, till after the act of bankruptcy, it
is void as against the assignees. But the king is not bound
by this fictitious relation, nor is he within the statutes of
bankrupts, for, if, after the act of bankruptcy committed,
and before the assignment of his effects, an extent issues for
the debt of the crown, the goods are bound thereby.
The assignees may pursue any legal method of recovering
this property so vested in them, by their own authority; but
[487] cannot commence a suit in equity, nor compound any
debts owing to the bankrupt, nor refer any matters to arbi-
tration, without the consent of the creditors, or the major
part of them in value, at a meeting to be held in pursuance
of -notice in the Gazette.
When they have got in all the effects they can reasonably
hope for, and reduced them to ready money, the assignees
must, after four and within twelve months after the commis-
sion issued, give one-and-twenty days' notice to the creditors
of a meeting for a dividend or distribution; at which time
they must produce their accounts, and verify them upon
oath, if required. And then the commissioners shall direct
a dividend to be made, at so much in the pound, to all cred-
itors who have before proved, or shall then prove, their debts.
This dividend must be made equally, and in a rateable pro-
portion, to all the creditors, according to the quantity of
their debts; no regard being had to the quality of them.
Mortgages, indeed, for which the creditor has a real security
in his own hands, are entirely safe; for the commission of
bankrupt reaches only the equity of redemption. So are also
personal debts, where the creditor has a chattel in his hands,
as a pledge or pawn for the payment, or has taken the debtor's
lands or goods in execution. And, upon the equity of the
statute 8 Ann. c. 14 (which directs, that, upon all executions
of goods being on any premises demised to a tenant, one
400 OF TITLE BY BANKRUPTCY. [Boox IL
year's rent, and no more, shall, if due, be paid to the land-
lord), it hath also been held, that, under a commission of
bankrupt, which is in the nature of a statute-execution, the
landlord shall be allowed his arrears of rent to the same
amount, in preference to other creditors, even though he
hath neglected to distrain, while the goods remained on the
premises; which he is otherwise entitled to do for his entire
rent, be the quantum what it may. But, otherwise, judg-
ments and recognizances (both which are debts of record,
and therefore at other times have a priority), and also bonds
and obligations by deed or special instrument (which are
called debts by specialty, and are usually the next in or-
der), these are all put on a level with debts by mere simple
contract, and all paid part passu. 2 [488]
Within eighteen months after the commission issued, a
second and final dividend shall be made, unless all the effects
where exhausted by the first. And if any surplus remains,
after selling his estates and paying every creditor his full
debt, it shall be restored to the bankrupt.
2. Equally.
CHAP. XXXII.] OF TITLE BY TESTAMENT. 401
CHAPTEE XXXII.
OF TITLE BY TESTAMENT AND ADMINISTRATION.
XI., XII. First, as to the original of testaments and ad-
ministrations. [489] When property came to be vested in
individuals by the right of occupancy, it became necessary
for the peace of society that this occupancy should be con-
tinued, not only in the present possessor, but in those per-
sons to whom he should think proper to transfer it, which
introduced the doctrine and practice of alienations, gifts,
and contracts. [490] But these precautions would be very
short and imperfect if they were confined to the life only of
the occupier, for then, upon his death, all his goods would
again become common, and create an infinite variety of
strife and confusion. The law of very many societies has
therefore given to the proprietor a right of continuing his
property after his death, in such persons as he shall name;
and in defect of such appointment or nomination, or where
no nomination is permitted, the law of every society has
directed the goods to be vested in certain particular indi-
viduals, exclusive of all other persons. The former method
of acquiring personal property, according to the express
directions of the deceased, we call a testament; the latter,
which is also according to the will of the deceased, not ex-
pressed, indeed, but presumed by the law, we call in Eng-
land an administration, being the same which the civil law-
yers term a succession ab intestato, 1 and which answers to
the descent or inheritance of real estates.
Testaments are of very high antiquity. With us in Eng-
land this power of bequeathing is coeval with the first rudi-
ments of the law. [491] But we are not to imagine that
this power of bequeathing extended originally to all a
man's personal estate. On the contrary, Glanvil will in-
form us that by the common law, as it stood in the reign
of Henry II., a man's goods were to be divided into three
equal parts, of which one went to his heirs or lineal de-
1. From one dying without a will.
26
402 OF TITLE BY TESTAMENT. [BOOK II.
scendants, another to his wife, and the third was at his
own disposal; or if he died without a wife, he might then
dispose of one moiety, and the other went to his children.
And so e converse, 2 if he had no children the wife was enti-
tled to one moiety, and he might bequeath the other; but
if he died without either wife or issue, the whole was at his
own disposal. [492] The shares of the wife and children
were called their reasonable parts, and the writ de ration -
ubili parte bonorum 3 was given to recover them. '
This continued to be the law of the land at the time of
.}f<tf/na Carta, and in the reign of King Edward III. this
right of the wife and children was still held to be the uni-
versal or common law, though frequently pleaded as tho
local custom of Berks, Devon, and other counties; and
Sir Henry Finch lays it down expressly in the reign of
Charles I. to be the general law of the land. But this law
is at present altered by imperceptible degrees, and the de-
ceased may now, by will, bequeath the whole of his goods
and chattels, though we cannot trace out when first this
alteration began.
In case a person made no disposition of such of his goods
as were testable, whether that were only part or the whole
of them, he was and is said to die intestate; and in such
cases it is said that by the old law the king was entitled to
seize upon his goods as the parens patriac* and general
trustee of the kingdom. [404] This prerogative the king
continued to exercise for some time by his own ministers of
justice, and probably in the county court, where matters of
all kinds were determined. Afterwards the goods of intes-
tates were given to the ordinary by the crown, and he might
seize them and keep them without wasting, and also might
give, aliene, or sell them at his will and dispose of the money
/// pios usus; 5 and if he did otherwise he broke the confidence
which the law reposed in him. So that, properly, the whole
interest and power which were granted to the ordinary were
2. On the contrary. 5. In pious uses. The most pious
3. For a reasonable part of the use to which he could bestow them
goods. was usually to his own individual
4. Parent of the state. use.
CHAP. XXXIL] OF TITLE BY TESTAMENT. 403
only those of being the king's almoner within his diocese in
trust to distribute the intestate's goods in charity to the
poor, or in such superstitious uses as the mistaken zeal of
the times had denominated pious. And as he had thus the
disposition of intestates' effects, the probate of wills of
course followed; for it was thought just and natural that
the will of the deceased should be proved to the satisfaction
of the prelate, whose right of distributing his chattels for the
good of his soul was effectually superseded thereby. Thus
the popish clergy took to themselves (under the name of
the church and poor) the whole residue of the deceased's
estate after the paries ratio nab lies or two thirds, of the
wife and children were deducted, without paying even his
lawful debts or other charges thereon. [495] For which rea-
son it was enacted by the statute of Westm. 2, that the or-
dinary shall be bound to pay the debts of the intestate, so
far as his goods will extend, in the same manner that execu-
tors were bound in case the deceased had left a will, a
use more truly pious than any requiem or mass for his soul.
But though they were now made liable to the creditors of
the intestate for their just and lawful demands, yet the
residuum,, 7 after payment of debts, remained still in their
hands to be applied to whatever purposes the conscience of
the ordinary should approve. The flagrant abuses of which
power occasioned the legislature again to interpose, in order
to prevent the ordinaries from keeping any longer the ad-
ministration in their own hands or those of their immediate
dependents; and, therefore, the statute 31 Edw. III. c. 11,
provides that, in case of intestacy, the ordinary 8 shall de-
pute the nearest and most lawful friends of the deceased to
administer his goods, which administrators are put upon
the same footing with regard to suits and to accounting as
executors appointed by will. [496] This is the original of
administrators as they at present stand, who are only the.
officers of the ordinary, appointed by him in pursuance of
this statute, which singles out the next and most lawful
6. Reasonable parts. country is variously vested in pro-
7. Residue. bate, county, surrogate, orphan's
S. Probate jurisdiction in this courts, etc. See the local statutes.
404 OF TITLE BY TESTAMENT. [BOOK IT.
friend of the intestate, who is interpreted to be the next
of blood that is under no legal disabilities. The statute
21 Hen. VIII. c. 5, enlarges a little more the power of the
ecclesiastical judge, and permits him to grant administra-
tion either to the widow or the next of kin, or to both of
them at his own discretion, and where two or more persons
are in the same degree of kindred, gives the ordinary his
election to accept whichever he pleases. Upon this footing
stands the general law of administrations at this day. 9
Secondly, who may or may not make a testament, or
what persons are absolutely obliged by law to die intestate. 1
Regularly, every person hath full power and liberty to
make a will that is not under some special prohibition by
law or custom, which prohibitions are principally upon
three accounts : for want of sufficient discretion, for want of
sufficient liberty and free will, and on account of their crim-
inal conduct. [497]
1. In the first species are to be reckoned infants under the
age of fourteen if males, and twelve if females. 2 Madmen,
9. To whom the administration of signed by the testator himself and
an intestate's estate shall be granted needs no \vitm sses. They are lawful
now depends wholly upon local stat- in the province of Manitoba, in
utes. Schouler on Wills and Admin- Louisiana, Mississippi and perhaps
istration, 349, 351. other states. Schouler on Wills, 3. 4
" The fundamental principle of both and notes; La. Civ. Code, art. 1581.
English and American enactments now A "mystic testament," consists in
in force on this subject is, that the inclosing one's instruments of dispo-
right to administer whenever the de- sition in an envelope and spaling it
ceased chose no executor, shall go ac- in presence of witnesses. La. Civ.
cording to the beneficial' interest in Code, arts. 1577-1580; Schouler on
the estate; a principle which may Wills, 3 and note,
yield, however, to other considerations Nuncupative wills permit the tes-
of sound policy and convenience. tator to make a testamentary dispo-
Sehouler on Wills and Administra- sition in extremis before a sufficient
tion, 349. As to the right of a sur- number of witnesses by whose oral
viving husband or wife to administer, testimony it is subsequently estab-
see Id., 349, 350. As to the rule be- lished. Schouler on Wills, 3.
tween widow and kindr-ed, see Id., 2. The age of testamentary capacity
351, 352. is usually fixed by statute in the
1. Besid:s ordinary last wills and United States and in England at 21,
testaments there are also in some though it is less than 21 in some
states holographic and mystic wills, states. Schouler on Wills, 21.
The former is wholly written and
CHAP. XXXIL] Or TITLE BY TESTAMENT. 405
or otherwise non compotes., idiots, or natural fools, persons
grown childish by reason of old age or distemper, such as
have their senses besotted with drunkenness all these are
incapable by reason of mental disability to make any will so
long as such disability lasts. To this class may be referred
such persons as are born deaf, blind, and dumb, who, as
they have always wanted the common inlets of understand-
ing, are incapable of having animu'm test and i, s and their
testaments are therefore void. 4
2. Such persons as are intestable for want of liberty or
freedom of will are, by the civil law, of various kinds, as
prisoners, captives, and the like. But the law of England
does not make such persons absolutely intestable, but only
leaves it to the discretion of the court to judge upon the
consideration of their particular circumstances of duress,
whether or no such person could be supposed to have lib-
er um animum testandi. And w r ith regard to feme-coverts,
with us a married woman is not only utterly incapable of
devising lands, being excepted out of the statute of wills,
34 & 35 Hen. VIII. c. 5, but also she is incapable of making
a testament of chattels without the license of her husband. 5
[498] Yet by her husband's license she may make a testa-
ment, and the husband, upon marriage, frequently covenants
with her friends to allow her that license ; but such license is
more properly his assent, for unless it be given to the par-
ticular will in question it will not be a complete testament,
even though the husband beforehand hath given her per-
mission to make a will. Yet it shall be sufficient to repel
3. Testamentary capacity. of the business in which lie is en-
4. Deaf and dumb persons are not gaged, to have a recollection of the
now deemed idiots. Brower v. Fisher, property he means to dispose of, of
4 John. Ch. 441; Ewell's Lead. Cases, the persons who are the objects of
721-724. A lower degree of intellect is his bounty and the manner in which
required to make a will than to make it is to be distributed among them.
a contract. Converse v. Converse, 21 Sloan v. Maxwell, 3 N. J. Eq. 563;
Vt. 168; Swell's Lead. Cases, 652. To ' Ewell's Lead. Cases, 643 et seq. and
make a will the testator must have cases cited; Schouler on Wills, 16, 31.
a sound and disposing mind and mem- 5. Changed by statute to a greater
ory. In other words, he ought to be or less extent in many of the United
capable of understanding the nature States. Schouler on Wills, 23, 27.
OF TITLE BY TESTAMENT. [Rooic II.
the husband from his general right of administering his
wife's effects, and administration shall be granted to her
appointee with such testamentary paper annexed. So that,
in reality, the woman makes no will at all, but only some-
thing like a will, operating in the nature of an appointment,
the execution of which the husband, by his bond, agree-
ment, or covenant, is bound to allow. The queen consort is
an exception to this general rule, for she may dispose of
her chattels by will without the consent of her lord. And
any feme-covert may make her will of goods which are in
her possession in auter droit 6 as executrix or administra-
trix, for these can never be the property of the husband;
and if she has any pin-money or separate maintenance, it
is said she may dispose of her savings thereout by testa-
ment without the control of her husband. [499] But if a
feme-sole makes her will, and afterwards marries, such sub-
sequent marriage is esteemed a revocation in law, and en-
tirely vacates the will. 7
3. Persons incapable of making testaments, on account of their crimi-
nal conduct, are, in the first place, all traitors and felons, from the time
of conviction, fo'r their goods and chattels are no longer at their own
disposal, but forfeited to the king. Neither can a felo de se make a will
of goods and chattels, for they are forfeited by the act and manner of
his death; but he may make a devise of his lands, for they are not sub-
jected to any forfeiture. Outlaws also, though it be but for debt, are
incapable of making a will so long as the outlawry subsists, for their
goods and chattels are forfeited during that time. As for persons guilty
of other crimes short of felony (as usurers, libellers, and others of a
worse stamp), by the common law their testaments may be good.
Thirdly, what are the nature and incidents of a testa-
ment? A testament is " the legal declaration of a man's
intentions, which he wills to be performed after his death."
[500]
These testaments are divided into two sorts: written and
verbal, or nuncupative; of which the former is committed to
writing, the latter depends merely upon oral evidence, being
declared by the testator in extremis before a sufficient num-
ber of witnesses, and afterwards reduced to writing. A
6. In another right. 7. Consult the local statutes.
CHAP. XXXII.] OF TITLE BY TESTAMENT. 407
codicil, codicillm, a little book or writing, is a supplement
to a will, or an addition made by the testator, and annexed
to and to be taken as part of a testament, being for its ex-
planation or alteration, or to make some addition to, or else
some subtraction from, the former dispositions of the tes-
tator. This may also be either written or nuncupative.
But as nuncupative wills and codicils (which were for-
merly more in use than at present, when the art of writing
is become more universal) are liable to great impositions,
and may occasion many perjuries, the statute of frauds,
29 Car. II. c. 3, hath laid them under many restrictions,
except when made by mariners at sea, and soldiers in actual
service. 8 As to all other persons it enacts: 1. That no
written will shall be revoked or altered by a subsequent
nuncupative one, except the same be in the lifetime of the
testator reduced to writing and read over to him, and ap-
proved, and unless the same be proved to have been so done
by the oaths of three witnesses at the least, who, by statute
4 & 5 Anne, c. 16, must be such as are admissible upon trials
at common law. 2. That no nuncupative will shall in any
w r ise be good where the estate bequeathed exceeds 30/, un-
less proved by three such witnesses present at the making
thereof (the Roman law requiring seven), and unless they
or some of them were specially required to bear witness
thereto by the testator himself, and unless it was made
in his last sickness, in his own habitation or d\velling-house r
or where he had been previously resident ten days at the
least, except he be surprised with sickness on a journey, or
from home, and dies without returning to his dwelling.
[501] 3. That no nuncupative will shall be proved by the
witnesses after six months from the making, unless it were
put in writing within six days. Nor shall it be proved till
fourteen days after the death of the testator, nor till process
hath first issued to call in the widow, or next of kin, to
contest it if they think proper. Thus hath the legislature
provided against any frauds in setting up nuncupative wills
by so numerous a train of requisites, that the thing itself
has fallen into disuse, and is hardly ever heard of but in the
8. See ante, note, and Stira. Am. St. Law, 2700-2705.
408 OF TITLE BY TESTAMENT. [BOOK II.
only instance where favor ought to be shown to it, when
the testator is surprised by sudden and violent sickness.
The testamentary words must be spoken with an intent to
bequeath, not any loose idle discourse in his illness, for he
must require the by-standers to bear witness of such his
intention; the will must be made at home, or among his
family or friends, unless by unavoidable accidents; to pre-
vent impositions from strangers, it must be in his last sick-
ness, for it he recovers he may alter his dispositions, and
lias time to make a written will; it must not be proved at
too long a distance from the testator's death, lest the words
should escape the memory of the witnesses, nor yet too
hastily and without notice, lest the family of the testator
should be put in inconvenience or surprised.
As to written wills they need not any witness of their
publication. I speak not here of devises of lands, which
are quite of a different nature, being conveyances by statute,
unknown to the feodal or common law, and not under tho
same jurisdiction as personal testaments. But a testament
of chattels, written in the testator's own hand, though it
has neither his name nor seal to it, nor witnesses present at
its publication, is good, provided sufficient proof can be
had that it is his handwriting. 9 And though written in
another man's hand, and never signed by the testator, yet,
if proved to be according to his instructions and approved
by him, it hath been held a good testament of the personal
estate. [502]
No testament is of any effect till after the death of the
testator. And therefore if there be many testaments, the
last overthrows all the former; but the republication of a
former will revokes one of a later date and establishes the
first again.
Hence it follows that testaments may be avoided three
ways: 1. If made by a person laboring under any of the
incapacities before mentioned; 2. By making another testa-
ment of a later date; and 3. By cancelling or revoking 1 it.
9. In this country testaments of
chattels usually require to be made
\\ith the same formalities as devises.
CHAP. XXXII.] OF TITLE BY TESTAMENT. 409
For though I make a last Avill and testament irrevocable in
the strongest words, yet I am at liberty to revoke it, because
my own act or words cannot alter the disposition of law so
as to make that irrevocable which is in its own nature
revocable. It hath also been held that, without an express
revocation, if a man who hath made his will afterwards
marries and hath a child, this is a presumptive or implied
revocation of his former will, which he made in his state of
celibacy. 1 The Romans were also wont to set aside testa-,
rnents as being inofficiosa,, deficient in natural duty, if they
disinherited or totally passed by (without assigning a true
and sufficient reason) any of the children of the testator.
[503] But if the child had any legacy, though ever so
small, it w r as a proof that the testator had not lost his
memory or his reason, which otherwise the law presumed,
but was then supposed to have acted thus for some sub-
stantial cause, and in such case no qtwrela inofftciosi testa-
mcnti 2 was allowed. Hence probably has arisen that
groundless vulgar error of the necessity of leaving the heir
a shilling, or some other express legacy, in order to disin-
herit him effectually; whereas the law of England makes
no such constrained suppositions of forgetfulness or in-
sanity, and therefore, though the heir or next of kin be
totally omitted, it admits no querela inofficiosi to set aside
such a testament. 3
Fourthly, what is an executor, and what an administrator,
and how they are both to be appointed.
An executor is he to whom another man commits by will
the execution of that his last will and testament. And all
persons are capable of being executors that are capable of
making wills, and many others besides, as feme-coverts and
infants; nay, even infants unborn, or in venire sa mere may
be made executors. But no infant can act as such till the
age of seventeen years, till which time administration must
1. See ante, note. provided for in the will take the same
2. Compaint of an undutiful will. share as if the testator had died in-
3. This is the general law of this testate. See local statutes; Stim.
country when not changed by statute. Am. Stat. Law, 2842-2843.
In some states, however, children not
410 OF TITLE BY TESTAMENT. [BooK II.
be granted to some other, durante minore actatc; 4 in like
manner as it may be granted, durante absentia, 5 or pendent <>
lite? when the executor is out of the realm, or when a suit
is commenced in the ecclesiastical court touching the
validity of the will. This appointment of an executor is
essential to the making of a will, and it may be performed
either by express words, or such as strongly imply the
same. But if the testator makes an incomplete will with-
out naming any executors, or if he names incapable persons,
or if the executors named refuse to act, in any of these
cases the ordinary must grant administration cum testa-
mento annexe 7 to some other person, and then the duty of
the administrator, as also when he is constituted only
durante minore actate, &c., of another, is very little different
from that of an executor. [504]
But if the deceased died wholly intestate, without making
either will or executors, then general letters of administra-
tion must be granted by the ordinary to such administrator
as the statutes of Edward III. and Henry VIII., before
mentioned, direct. In consequence of which we may ob-
serve: 1. That the ordinary is compellable to grant ad-
ministration of the goods and chattels of the wife to the
husband, or his representatives, and of the husband's effects
to the widow, or next of kin, but he may grant it to either
or both at his discretion. 2. That among the kindred, those
are to be preferred that are the nearest in degree to the
intestate, but of persons in equal degree the ordinary may
take which he pleases. 3. That this nearness or propin-
quity of degree shall be reckoned according to the computa-
tion of the civilians, 8 and not of the canonists, which the
law of England adopts in the descent of real estates, because
in the civil computation the intestate himself is the tcr-
4. During minority. preferred in the appointment, see Id.,
5. During absence. 365.
6. During litigation. 8. This subject is regulat d by
7. Administration with the will an- statute in the several states, with the
nexed. English statute as a general model.
His functions are, in general, those See Schouler on Wills and Admin.,
of an executor. Schouler on Wills 351, and local statutes,
uiid Admin., 365, 488. As to who is
CHAP. XXXII.] OF TITLE BY ADMINISTRATION. 411
minus, a quo 9 the several degrees are numbered, and not
the common ancestor, according to the rule of the canonists.
And, therefore, in the first place, the children, or on failure
of children the parents, of the deceased are entitled to the
administration, both which are indeed in the first degree,
but with us the children are allowed the preference. [505]
Then follow brothers, grandfathers, uncles, or nephews, and
the females of each class respectively, and lastly, cousins.
4. The half blood is admitted to the administration as well
as the whole, for they are of the kindred of the intestate and
only excluded from inheritances of land upon feodal rea-
sons. 5. If none of the kindred will take out administra-
tion, a creditor may by custom do it. . 6. If the executor
refuses or dies intestate, the administration may be granted
to the residuary legatee, in exclusion of the next of kin. 7.
And lastly, the ordinary may, in defect of all these, commit
administration, as he might have done before the statute
of Edward III., to such discreet person as he approves of;
or may grant him letters ad colligendum bona defuncti,*
which neither makes him executor nor administrator, his
only business being to keep the goods in his safe custody,
and to do other acts for the benefit of such as are entitled
to the property of the deceased.
If a bastard, who has no kindred, being nullius filius,- or any one else
that has no kindred dies intestate, and without wife or child, it hath
formerly been held that the ordinary might seize his goods and dispose
of them in pios usus. But the usual course now is for some one to pro-
cure letters-patent or other authority from the king, and then the or-
dinary of course grants administration to such appointee of the
crown. [506]
The interest vested in the executor by the will of the
deceased may be continued and kept alive by the will of
the same executor, so that the executor of A's executor is
to all intents and purposes the executor and representative
of A himself; 3 but the executor of A's administrator, or the
9. The terminal from which. 3. Controlled by local statutes,
1. To collect the goods of the de- which see. See Schouler on \Vills and
ceased. Admin., 365 et seq.
2. No one's son.
412 OF TITLE BY ADMINISTRATION. [BooKlJ.
administrator of A's executor, is not the representative of
A. For the power of an executor is founded upon the
special confidence and actual appointment of the deceased,
and such executor is therefore allowed to transmit that
power to another in whom he has equal confidence; but the
administrator of A is merely the officer of the ordinary,
prescribed to him by act of parliament, in whom the de-
ceased has reposed no trust at all, and, therefore, on the
death of that officer it results back to the ordinary to ap-
point another. And with regard to the administrator of
A's executor, he has clearly no privity or relation to A,.
being only commissioned to administer the effects of the
intestate executor, and not of the original testator. Where-
fore, in both these cases, and whenever the course of repre-
sentation from executor to executor is interrupted by any
one administration, it is necessary for the ordinary to
commit administration afresh of the goods of the deceased
not administred by the former executor or administrator.
And this administrator de bonis non, is the only legal repre-
sentative of the deceased in matters of personal property.
But he may, as well as an original administrator, have only
a limited or special administration committed to his care,
viz., of certain specific effects, such as a term of years and
the like, the rest being committed to others.
Fifthly and lastly, I proceed to inquire into some few of
the principal points of the office and duty of executors and
administrators. These in general are very much the same
in both executors and administrators, excepting, first, that
the executor is bound to perform a will, which an adminis-
trator is not, unless where a testament is annexed to his
administration, and then he differs still less from an execu-
tor; and, secondly, that an executor may do many acts be-
fore he proves the will, but an administrator may do
nothing till letters of administration are issued, for the
former derives his power from the will and not from the
probate, the latter owes his entirely to the appointment of
the ordinary. If a stranger takes upon him to act as
executor without any just authority, as by intermeddling
with the goods of the deceased, and many other transac-
CHAP. XXXII.] OF TITLE BY ADMINISTRATION". 413
lions, lie is called in law an executor of his own wrong (de
son tort), and is liable to all the trouble of an executorship
without any of the profits or advantages ; 4 but merely doing
acts of necessity or humanity, as locking up the goods, or
burying the corpse of the deceased, will not amount to such
an intermeddling as will charge a man as executor of his
own wrong. 5 Such a one cannot bring an action himself
in right of the deceased, but actions may be brought against
him. And in all actions by creditors against such an offici-
ous intruder, he shall be named an executor generally;
for the most obvious conclusion which strangers can form
from his conduct is, that he hath a will of the deceased,
wherein he is named executor, but hath not yet taken pro-
bate thereof. He is chargeable with the debts of the de-
ceased, so far as assets come to his hands, and, as against
creditors in general, shall be allowed all payments made to
any other creditor in the same or a superior degree, himself
only excepted. [508] And though, as against the rightful
executor or -administrator, he cannot plead such payment,
yet it shall be allowed him in mitigation of damages ; unless,
perhaps, upon a deficiency of assets, whereby the rightful
executor may be prevented from satisfying his own debt.
But let us now see what are the power and duty of a right-
ful executor or administrator. 6
1. He must bury the deceased in a manner suitable to the
estate which he leaves behind him. Necessary funeral ex-
penses are allowed previous to all other debts and charges;
but if the executor or administrator be extravagant, it is a
species of detestation, or waste of the substance of the de-
ceased, and shall only be prejudicial to himself, and not
to the creditors or legatees of the deceased.
2. The executor or the administrator durante minor a
setate, or durante absentia, or cum testamento annexo, must
prove the will of the deceased, which is done either in
common form, which is only upon his own oath before the.
ordinary or his surrogate, or per testes, in more solemn form
4. See, generally, Schouler on Wills 6. See, generally, Schouler on Wills
and Admin., ch. 8. and Admin., Part 4.
5. See Schouler on Wills and Ad-
min., 401.
414 OF TITLE BY ADMINISTRATION". [ HOOK II.
of law, in case the validity of the will be disputed. When
the will is so proved the original must be deposited in the
registry of the ordinary, and a copy thereof in parchment
is made out under the seal of the ordinary, and delivered
to the executor or administrator, together with a certificate
of its having been proved before him; all which together
is usually styled the probate. 7 In defect of any will, the
person entitled to be administrator must also at this period
lake out letters of administration under the seal of the
ordinary, whereby an executorial power to collect and ad-
minister, that is, dispose of the goods of the deceased, is
vested in him; and he must, by statute 22 & 23 Car. II. c. 10,
enter into a bond, with sureties, faithfully to execute his
trust.
3. The executor or administrator is to make an inventory
of all the goods and chattels, whether in possession or
action, of the deceased, which he is to deliver in to the
ordinary upon oath, if thereunto lawfully required. [510]
4. He is to collect all the goods and chattels so inven-
toried, and to that end he has very large powers and in-
terests conferred on him by law, being the representative
of the deceased, and having the same property in his goods
as the principal had when living, and the same remedies to
recover them. And if there be two or more executors, a
sale or release by one of them shall be good against all the
rest; but in case of administrators it is otherwise. 8 What-
ever is so recovered that is of a salable nature and may be
converted into ready money, is called assets in the hands
of the executor or administrator; that is, sufficient or
enough (from the French asses) to make him chargeable
to a creditor or legatee so far as such goods and chattels
<-xtend. [511] Whatever assets so come to his hands he
may convert into ready money, to answer the demands that
may be made upon him, which is the next thing to be con-
sidered; for,
7. The practice in probate coxirts, by contested will is by a bill in chancery
what vcr name called, has a general in the circuit court, not in the county
similarity, but varies in detail. The or probate court,
method of contest also differs. In 6. Not so in the United States.
Illinois, for example, the trial of a
CHAP. XXXIL] OF TITLE BY ADMINISTRATION. 415
5. The executor or administrator must pay the debts of
the deceased. In payment of debts he must observe the
rules of priority, otherwise, on deficiency of assets, if he
pays those of a lower degree first, he must answer those of
a higher out of his own estate. And, first, he may pay all
funeral charges, and the expense of proving the will, and
the like. Secondly, debts due to the king on record or
specialty. Thirdly, such debts as are by particular statutes
to be preferred to all others, as the forfeitures for not bury-
ing in woolen, money due upon poor rates, for letters to the
post-office, and some others. Fourthly, debts of record; as
judgments (docketed according to the statute 4 & 5 W. & M.
c. 20), statutes, and recognizances. Fifthly, debts due on
special contracts, as for rent (for which the lessor has often
a better remedy in his own hands by distraining), or upon
bonds, covenants, and the like, under seal. Lastly, debts
on simple contracts, viz., upon notes unsealed, and verbal
promises. 9 Among these simple contracts, servants' wages
are by some with reason preferred to any other; and so
stood the ancient law according to Bracton and Fleta, who
reckon among the first debts to be paid, servita sercientium
ct stipendia famulorum. Among debts of equal degree, the
executor or administrator is allowed to pay himself first,
by retaining in his hands so much as his debt amounts to.
9. In England specialty and simple (2) The widow's award, if there is
contract creditors are now placed on a widow; or children's, if there are
the same footing by statute of 32 & children and no widow.
33 Viet., ch. 46. The priority of judg- (3) Expenses attending the last ill-
ment creditors is, however, still re- ness, not including physician's bill,
tained. Schouler on Wills and Ad- and demands due common laborers or
min., 502; Wms. Exrs. preface, 1011. household servants of deceased for
The general tendency of legislation labor.
in the United States is to place spe- (4) Debts due the common school
cialty and simple contract debts on 'or township funds,
the same plane. Schouler on Wills (5) The physician's bill in the last
and Admin., 502 note; 2 Kent. Com. illness of deceased.
418, 419. In Illinois, for example, (6) Trust funds received by de-
demands against the estate of any ceased and not accounted for.
testator or intestate are, after allow- (7) All other debts and demands
ance, paid in the following order : (1) of whatever kind without regard to
Funeral expenses ar.d necessary cost quality or dignity. See 111. Rev. Stat.,
of administration. ch. 3, sec. 70.
416 OF TITLE BY ADMINISTRATION". [Booic IT.
But an executor of his own wrong is not allowed to retain ;
for that would tend to encourage creditors to strive who
should first take possession of the goods of the deceased,
and would besides be taking advantage of his own wrong,
which is contrary to the rule of law. If a creditor consti-
tutes his debtor his executor, this is a release or discharge
of the debt, whether the executor acts or no, provided there
be assets sufficient to pay the testator's debts; for though
this discharge of the debt shall take place of all legacies,
yet it were unfair to defraud the testator's creditors of
their just debts by a release which is absolutely voluntary.
[512] Also, if no suit is commenced against him [and
decree of payment rendered], the executor may pay any one
creditor in equal degree his whole debt, though he has
nothing left for the rest; for without a suit commenced the
executor has no legal notice of the debt.
6. When the debts are all discharged, the legacies claim
the next regard, 2 which are to be paid by the executor so
far as his assets will extend; but he may not give himself
the preference herein, as in the case of debts.
A legacy is a bequest or gift of goods and chattels by
testament, and the person to whom it was given is styled
the legatee, which every person is capable of being, unless
particularly disabled by the common law or statutes, as
traitors, papists, and some others. This bequest transfers
an inchoate property to the legatee, but the legacy is not
perfect without the assent of the executor; 3 for if I have a
1. As to proof and collection of dence over legacies, regardless of the
claims the local statutes must be con- trstator's wishes. Schouler on Wills,
suited and followed. See Schouler on 530.
Wills and Admin., 502. 3. Schouler on Wills, 536 and cases
It is not enough that a suit has cited. The assent of the executor is
been commenced (Sorrell v. Carpenter,, equally necessary whether a legacy
2 P. Wms. 483), there must have been be specific or merely pecuniary (Flan-
a decree for payment of debts, or an ders v. Clarke, 3 Atk. 510; Abne>y v.
executor will be at liberty to give a Miller, 2 Atk. 598) ; a court of equity,
preference, amongst creditors of equal indeed, will compel the executor to
degree (Maltby v. Russell, 2 Sim. & deliver the specific article devised
Stu. 228; Perry v. Philips. 10 Ves. (Northey v. Northey, 2 Atk. 77) ; but,
3!). And see ante, p. *511, note. as a general rule, no action at law
2. All valid legal claims take prece- can be maintained for a Irgacy (Decks
CHAP. XXXII.] OF TITLE BY ADMINISTRATION. 417
general or pecuniary legacy of 100/ v or a specific one of a
piece of plate, I cannot in either case take it without the
consent of the executor. For in him all the chattels are
vested, and it is his business first of all to see whether there
is a sufficient fund left to pay the debts of the testator,
the rule of equity being that a man must be just before he
is permitted to be generous. And in case of a deficiency
of assets, all the general legacies must abate proportionably
in order to pay the debts, but a specific legacy (of a piece
of plate, a horse, or the like) is not to abate at all, or allow
anything by way of abatement, unless there be not sufficient
without it. [513] Upon the same principle, if the legatees
had been paid their legacies, they are afterwards bound to
refund a ratable part, in case debts come in more than suffi-
cient to exhaust the residuum after the legacies paid. 4
If a legatee dies before the testator, the legacy is a lost or
lapsed legacy, and shall sink into the residuum. And if a
contingent legacy be left to any one, as ichen he attains, or
if he attains, the age of twenty-one, and he dies befere that
time, it is a lapsed legacy. 5 But a legacy to one to be paid
when he attains the age of twenty-one years, is a vested
legacy, an interest which commences in praesenti, al-
though it be solvendum in futuro;* and if the legatee dies
before that age, his representative shall receive it out of
v. Strutt, 5 T. E. 692), or for a dis- were afterwards to appear, the court
tributive share under an intestacy. of chancery would have power to in-
( Jones v. Tanner, 7 Barn. & Cress terfere, and make the legatee refund,
544.) It was held, however, in Doe in the proportion required,
v. Guy (3 East, 123), to be clear, 4. See, generally, as to the payment
from all the authorities, that the in- and satisfaction of legacies, Schouler
terest in any specific thing bequeathed on Wills, Part 5, ch. 4.
vest, at law, in the legatee, upon the 5. There may also be an ademption
assent of the executor; and, there- of a legacy, which signifies its revo-
fore, that whenever an executor has cation aside from a revocation of the
given assent (expressly, and not will itself. This may happen by some
merely by implication), to a specific act of the testator which disposes of
legacy, should he subsequently with- or destroys the identity of the article
hold it, the legatee may maintain an bequeathed. See Schouler on Wills,
action at law for the recovery of the 527.
interest so vested in him. If a de- 6. To be paid in the future,
ficiency of -assets to pay creditors
27
418 OF TITLE BY ADMINISTRATION. [Boox II.
the testator's personal estate at the same time that it would
have become payable in case the legatee had lived. This
distinction is borrowed from the civil law, and its adoption
in our courts is not so much owing to its intrinsic equity as
to its having been before adopted by the ecclesiastical
courts. For since the chancery has a concurrent jurisdic-
tion with them in regard to the recovery of legacies, it was
reasonable that there should be a conformity in their de-
terminations. But if such legacies be charged upon a real
estate, in both cases they shall lapse for the benefit of the
heir, for with regard to devises affecting lands the ecclesi-
astical court hath no concurrent jurisdiction. And in case
of a vested legacy due immediately, and charged on land
or money in the funds, which yield an immediate profit, in-
terest shall be payable thereon from the testator's death;
but if charged only on the personal estate, which cannot
be immediately got in, it shall carry interest only from the
end of the year after the death of the testator. 7 [514]
Besides these formal legacies, contained in a man's will
and testament, there is also permitted another death-bed
disposition of property, which is called a donation causa
mortis. 8 And that is when a person in his last sickness,
7. With us interest is generally al- fore requires no probate (Ward v.
lowable after the expiration of one Turner, 2 Ves. Sr. 435; Ashton v.
year after the testators death. Dawson, Sel. Ca. in Cha. 14) ; though
Schouler on Wills, 533. a question has been made whether, as
8. See ante, note. A donatio mor- such a gift is only to take effect in
tis causa has many of the prop- case of the donor's death, it ought
trties of a legacy; it is liable to not to be held so far testamentary
debts, and is dependent on survivor- as to be liable to legacy duty. \Vood-
.-l.il>. Tate v. Hilbert, 2 Ves. Jr. 120; bridge v. Spooner, 3 Barn. & Aid.
Jones v. Selby, Prec. in Cha. 303; 236.
Miller v. Miller, 3 P. Wins. 357. It A donatio mortis causa plainly dif-
is not a present absolute gift, Vesting fers from a legacy in this particular
immediately, but a revocable and con- the subject of gift must in the for-
ditional one. of which the enjoyment mer case be delivered by the donor;
is postponed, till after the giver's in the latter case, by his rcpresenta-
dcatli. Walter v. Hodge, 2 Swanst. five. Walter v. Hodge, 2 Swanst.
98. On the other hand, though li- 98. So, the distinction between a
able to be defeasanced, it must, sub- nuncupative will, and a donatio mor-
joct to such power of revocation, be Us causa is, that th? bounty given
a complete gift inter vifos, and there- in the first-named mode is to be I e-
CHAP. XXXII.] OF TITLE BY ADMINISTRATION. 419
apprehending his dissolution near, delivers or causes to be
delivered to another the possession of any personal goods,
under which have been included bonds and bills drawn by
the deceased upon his banker, to keep in case of his de-
cease. This gift, if the donor dies, needs not the assent of
his executor; yet it shall not prevail against creditors, and
is accompanied with this implied trust, that if the donor
lives, the property thereof shall revert to himself, being
only given in contemplation of death, or mortis causa.
7. When all the debts and particular legacies are dis-
charged, the surplus or residuum must be paid to the resid-
uary legatee, if any be appointed by the will; and if there
be none, although where the executor has no legacy at all
the residuum shall in general be his own, 9 yet wherever
there is sufficient on the face of a will, by means of a
competent legacy or otherwise, to imply that the testator
intended his executor should not have the residue, the un-
devised surplus of the estate shall go to the next of kin,
the executor then standing upon exactly the same footing
as an administrator, concerning whom, indeed, there form-
erly was much debate wiiether or no he could be compelled
to make any distribution of the intestate's estate. [515]
For though, after the administration was taken in effect
from the ordinary and transferred to the relations of the
deceased, the spiritual court endeavored to compel a dis-
tribution and took bonds of the administrator for that
purpose, they were prohibited by the temporal courts, and
the bonds declared void at law. And the right of the hus-
band not only to administer, but also to enjoy exclusively
the effects of his deceased wife, depends still on this doc-
trine of the common law, the statute of frauds declaring
only that the statute of distribution does not extend to this
case. But now these controversies are quite at an end, for
by the statute 22 & 23 Car. II. c. 10, explained by 29 Car. II.
ceived from the executor; but in the 1 Sim. & Stu. 244; Ward v. Turner,
latter case may be held against him, 2 Ves. Sr. 443.
and requires no assent on his part, 9. Not so with us. See local stat-
the delivery having been completed by utes which generally give such resi-
the donor himself. Duffield v. Ehves, due to the next of kin. Schouler on
Wills and Admin., 542.
420 OF TITLE BY ADMINISTRATION. [BOOK IT.
c. 30, it is enacted that the surplusage of intestates' estates
(except of femes-covert, which are left as at common law)
shall, after the expiration of one full year from the death
of the intestate be distributed in the following manner:
One third shall go to the widow of the intestate, and the
residue in equal proportions to his children, or, if dead, to
their representatives, that is, their lineal descendants. If
there are no children or legal representatives subsisting,
then a moiety shall go to the widow and a moiety to the
next of kindred in equal degree and their representatives;
if no widow, the whole shall go to the children; if neither
widow nor children, the whole shall be distributed among
the next of kin in equal degree and their representatives;
but no representatives are admitted among collaterals
farther than the children of the intestate's brothers and
sisters. 1 The next of kindred here referred to are to be in-
vestigated by the same rules of consanguinity as those who
are entitled to letters of administration, of whom we have
sufficiently spoken. And therefore by this statute the
mother as well as the father succeeded to all the personal
effects of their children, who died intestate and without
wife or issue, in exclusion of the other sons and daughters,
the brothers and sisters of the deceased. [516] And so the
law still remains with respect to the father; but by statute
I Jac. II. c. 17, if the father be dead and any of the children
die intestate without wife or issue in the lifetime of the
mother, she and each of the remaining children or their
representatives shall divide his effects in equal portions.
So, likewise, there is another part of the statute of dis-
tributions where directions are given that no child of the
intestate, except his heir at law, on whom he settled
in his lifetime any estate in lands or pecuniary portion
equal to the distributive shares of the other children, shall
have any. part of the surplusage with their brothers and
1. In this country real and personal fering in details, are usually modeled
estate, though they may pursue dif- after the English statute of distribu-
fi-rent channels, usually vest in the tions. See Schouler on Wills and Ad-
same persons, the next of kin. Our min., 543; 2 Kent. Com. 426 and
statutes of distribution, though dif- notes. Consult the local statutes.
CHAP. XXXIL] Or TITLE BY ADMINISTRATION. 421
sisters; but if the estates so given them by way of advance-
ment are not quite equivalent to the other shares, the chil-
dren so advanced shall now have so much as will make
them equal. 2 [517] It may not be amiss to observe that
with regard to goods and chattels, this is part of the ancient
custom of London, of the province of York, and of our
sister kingdom of Scotland; and with regard to lands de-
scending in coparcenary, that it hath always been and still
is the common law of England under the name of hotchpot.
The doctrine and limits of representation laid down in
the statute of distributions seem to have been principally
borrowed from the civil law, whereby it will sometimes
happen that personal estates are divided per capita 3 and
sometimes per stirpcs, 4 whereas the common law knows no
other rule of succession but that per stirpes only. They
are divided per capita, to every man an equal share, when
all the claimants claim in their own rights, as in equal de-
gree of kindred, and not jure reprsesentationis, in the right
of another person. As if the next of kin be the intestate 's
three brothers, A, B, and C, here his effects are divided into
three equal portions and distributed per capita one to each;
but if one of these brothers, A, had been dead, leaving three
children, and another, B, leaving two, then the distribution
must have been per stirpes, viz. one third to A's three
children, another third to B 's two children, and the remain-
ing third to C, the surviving brother. Yet if C had also
been dead without issue, then A's and B's five children,
being all in equal degree to the intestate, would take in their
own rights per capita, viz. each of them one fifth part. 5
2. Schouler on Wills and Adminis- 4. B(y trunk or root, i. e., by right
tration, 545; Wms. Exrs., 1485, 1498. of representation.
3. Per head. 5. Consult the local statutes.
BOOK THE THIRD.
OF PRIVATE WRONGS.
CHAPTER I.
OF THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE
PARTIES.
A wrong is a privation of right. [2] Wrongs are divis-
ible into two sorts or species: private wrongs and public
wrongs. The former are an infringement or privation of
the private or civil rights belonging to individuals consid-
ered as individuals, and are thereupon frequently termed
civil injuries; the latter are a breach and violation of public
rights and duties which affect the whole community consid-
ered as a community,, and are distinguished by the harsher
appellation of crimes and misdemeanors.
The remedy for private wrongs is principally to be sought
l>y application to the courts of justice, that is, by civil suit
or action. [3] But as there are certain injuries of such a
nature that some of them furnish and others require a moro
speedy remedy than can be had in the ordinary forms of
justice, there is allowed in those cases an extrajudicial or
eccentrical kind of remedy, of which I shall first of all
treat before I consider the several remedies by suit; and
to that end shall distribute the redress of private wrongs
into three several species: first, that which is obtained by
the mere act of the parties themselves; secondly, that which
is effected by the mere act and operation of law; and thirdly,
that which arises from suit or action in courts, which con-
sists in a conjunction of the other two, the act of the par-
ties co-operating with the act of law.
And first, of that redress of private injuries which 13
obtained by the mere act of the parties. This is of two
[423]
424 REDRESS OF PRIVATE WRONGS. [Boon III.
sorts: first, that which arises from the act of the injured
party only; and secondly, that which arises from the joint
act of all the parties together; both which I shall consider
in their order.
Of the first sort, or that which arises from the sole act of
the injured party, is,
I. The defence of one's self, or the mutual and reciprocal
defense of such as stand in the relations of husband and
wife, parent and child, master and servant. In these cases,,
if the party himself, or any of these his relations, be forcibly
attacked in his person 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 w r ho began the affray.
In the English law self-defence is held an excuse for
breaches of the peace, nay, even for homicide itself; but
care must be taken that the resistance does not exceed the
bounds of mere defence and prevention, for then the de-
fender would himself become an aggressor. 1 [4]
II. Recaption, or reprisal, is another species of remedy
by the mere act of the party injured. This happens when
any one hath deprived another of his property in goods
or chattels personal, or wrongfully detains one's wife, child,
or servant; in which case the owner of the goods and the
husband, parent, or master may lawfully claim and retake
them wherever he happens to find them, so it be not in a
riotous manner or attended with a breach of the peace. 2
If, for instance, my horse is taken away, and I find him in
a common, a fair, or a public inn, I may lawfully seize him
to my own use ; but I cannot justify breaking open a private
stable or entering on the grounds of a third person to take
him, except he be feloniously stolen, but must have recourse
to an action at law. [5]
III. Thirdly, a remedy of the same kind for injuries to
real property is by entry on lands and tenements, when
another person without any right has taken possession
thereof. This depends in some measure on like reasons
1. Cooley on Torts (Students' Ed.), 2. Cooley on Torts (Students' Ed.),
153-158 and cases cited; Hale on 112.
Torts, 91 and cases cited.
CHAP. I.] REDRESS OF PRIVATE WKOXGS. 425
with the former; and like that, too, must be peaceable and
without force. 3
IV. The abatement or removal of nuisances. Whatso-
ever unlawfully annoys or doth damage to another is a
nuisance, and such nuisance may be abated, that is, taken
away or removed, by the party aggrieved thereby, so as he
commits no riot in the doing of it. 4 If a house or wall is
erected so near to mine that it stops my ancient lights [the
doctrine of ancient lights has not been adopted in this
country], which is a private nuisance, I may enter my neigh-
bor's land and peaceably pull it down. Of if a new gate
be erected across the public highway, which is a common
nuisance, any of the king's subjects passing that way may
cut it down and destroy it.
V. A fifth case is that of distraining cattle or goods for
non-payment of rent or other duties; or distraining an-
other's cattle damage-peasant, that is, doing damage, or
trespassing, upon his land. 5 [6]
1. A distress, districtio, is the taking a personal chattel
out of the possession of the wrongdoer into the custody of
the party injured, to procure a satisfaction for the wrong
committed. (1.) The most usual injury for which a dis-
tress may be taken is that of non-payment of rent.
(2.) For neglecting to do suit to the lord's court, or other certain per-
sonal service the lord may distrain of common right. [7] (3.) For amerce-
ments in a court-lcet a distress may be had of common right, but not
for amercements in a court-baron, without a special prescription to
warrant it.
3. Cooley on Torts (Students' Ed.), case of Simpson v. Hartopp, Willes,
119. 512; 1 Smith's Lead. Cases, *526 et
4. If it is a private nuisance, he seq. and notes; 1 Bouvier Law Diet,
only may abate it who is injured by (llth Ed.), Distress, pp. 433-437;
its continuance; if it is a public nui- Cooley on Torts (Students' Ed.), 120;
sance he only may abate it who suf- Taylor on Landlord and Tenant,
fers a special grievance not felt by 556 et seq. and notes.
the public in general. Cooley on Distress of cattle damage-feasant
Torts (Students' Ed.), 108. is a common law right, regulated by
5. See, as to the common law rules statute in this country. Cooley on
r.s to distress for rent, the leading Torts (Students' Ed.), 119 and cases
cited.
426 REDRESS OF PRIVATE WRONGS. [BOOK TIT.
(4.) Another injury for which distresses may be taken is
whore a man finds beasts of a stranger wandering in his
grounds damagc-feasant, that is, doing him hurt or damage
by treading down his grass or the like, in which case the
owner of the soil may distrain them till satisfaction be made
him for the injury he has thereby sustained. (5.) Lastly,
for several duties and penalties inflicted by special acts of
parliament (as for assessments made by commissioners of
sewers or for the relief of the poor) remedy by distress and
sale is given.
2. As to the things which may be distrained, or taken
in distress, we may lay it down as a general rule that all
chattels personal are liable to be distrained, unless particu-
larly protected or exempted. Instead, therefore, of men-
tioning what things are distrainable, it will be easier to
recount those which are not so, with the reason of their
particular exemptions. And (1.) Such things wherein no
man can have an absolute and valuable property (as dogs r
cats, rabbits, and all animals ferae naturae) cannot }>e dis-
trained. [8] Yet if deer (which are ferae naturae)* are
kept in a private inclosure for the purpose of sale or profit,
this so far changes their nature, by reducing them to a kind
of stock or merchandise, that they may be distrained for
rent. (2.) Whatever is in the personal use or occupation
of any man is for the time privileged and protected from
any distress, as an axe with which a man is cutting wood,
or a horse while a man is riding him. But horses drawing
a cart may (cart and all) be distrained for rent-arrere; and
also, if a horse, though a man be riding him, be taken
damage-feasant/ or trespassing in another's grounds, tho
horse (notwithstanding his rider) may be distrained and
led away to the pound. [3.] Valuable things in the way
of trade shall not be liable to distress. As a horse standing
in a smith's shop to be shoed, or in a common inn; or cloth
at a tailor 's house ; or corn sent to a mill or a market. For
all these are protected and privileged for the benefit of
trade, and are supposed in common presumption not to
belong to the owner of the house, but to his customer.
6. Wild by nature. 7. Doing damage.
CHAP* I.] REDRESS OF PRIVATE WRONGS. 427
But, generally speaking, whatever goods and chattels the
landlord finds upon the premises, whether they in fact be-
long to the tenant or a stranger, are distrainable by him
for rent. With regard to a stranger's beasts which are
found on the tenant's land, the following distinctions are
however taken. If they are put in by consent of the owner
of the beasts, they are distrainable immediately afterwards
for rent-arrere by the landlord. So also if the stranger's
cattle break the fences, and commit a trespass by coming
on the land, they are distrainable immediately by the lessor
for his tenant's rent, as a punishment to the owner of the
beasts for the wrong committed through his negligence.
But if the lands were not sufficiently fenced so as to keep
out cattle, the landlord cannot distrain them till they have
been levant and couchant (levantes et ciibantes] on the land;
that is, have been long enough there to have lain down and
rose up to feed, which in general is held to be one night at
least; and then the law presumes that the owner may have
notice whether his cattle have strayed, and it is his own
negligence not to have taken them away. [9] Yet, if the
lessor of his tenant were bound to repair the fences and did
not, and thereby the cattle escaped into their grounds with-
out the negligence or default of the owner, in this case,
though the cattle may have been levant and couchant, yet
they are not distrainable for rent till actual notice is given
to the owner that they are there and he neglects to remove
them; for the law will not suffer the landlord to take ad-
vantage of his own or his tenant's wrong. (4.) There are
also other things privileged by the ancient common law, as
a man's tools and utensils of his trade, the axe of a carpen-
ter, the books of a scholar, and the like, which are said
to be privileged for the sake of the public, because the tak-
ing them away would disable the owner from serving the
commonwealth in his station. So beasts of the plough,
averia carucae, and sheep are privileged from distresses at
common law; while dead goods or other sort of beasts,
which Bracton calls catalla otiosa, may be distrained. But
as beasts of the plough may be taken in execution for debt,
so they may be for distress by statute, which partake of
428 REDRESS OF PRIVATE WRONGS. [BOOK III.
the nature of executions. (5.) Nothing shall be distrained
for rent which may not be rendered again in as good plight
as when it was distrained; for which reason milk, fruit,
and the like cannot be distrained, a distress at common law
being only in the nature of pledge or security, to be restored
in the same plight when the debt is paid. [10] So, an-
ciently, sheaves or shocks of corn could not be distrained,
because some damage must needs accrue in their removal;
but a cart loaded with corn might, as that could be safely
restored. But now by statute 2 W. & M. c. 5, corn in
sheaves or cocks or loose in the straw, or hay in barns or
ricks, or otherwise, may be distrained as well as other
chattels. (6.) Lastly, things fixed to the freehold may not
be distrained; and caldrons, windows, doors, and chimney-
pieces, for they savor of the realty. For this reason, also,
corn growing could not be distrained till the statute 11 Geo.
II. c. 19, empowered landlords to distrain corn, grass, or
other products of the earth, and to cut and gather them
when ripe.
3. How distresses may be taken, disposed of, or avoided.
Formerly, distresses were looked upon in no other light
than as a mere pledge or security for payment of rent or
other duties, or satisfaction for damage done. And so the
law still continues with regard to distresses of beasts taken
damaffc-fcasant, and for other causes not altered by act or
parliament, over which the distrainor has no other power
than to retain them till satisfaction is made.
In pointing out the methods of distraining, I shall in
general suppose the distress to be made for rent, and re-
mark where necessary the differences between such distress
and one taken for other causes.
In the first place, all distresses must be made by day,
unless in the case of damage-f easant, an exception being
there allowed lest the bests should escape before they are
taken. [11] And when a person intends to make a distress
he must, by himself or his bailiff, enter on the demised
premises, formerly during the continuance of the lease; but
now [by statute], if the tenant holds over, the landlord may
distrain within six months after the determination of the
CHAP. I.] REDRESS OF PRIVATE WRONGS. 429
lease, provided his own title or interest, as well as the
tenant's possession, continue at the time of the distress.
If the lessor does not find sufficient distress on the premises,
formerly he could resort nowhere else. But now [by
statute] the landlord may distrain any goods of his tenant,
carried off the premises clandestinely, wherever he finds
them within thirty days after, unless they have been bofia
fide sold for valuable consideration. The landlord may
also distrain the beasts of his tenant, feeding upon any
commons or wastes, appendant or appurtenant to the de-
mised premises. The landlord might not formerly break
open a house to make a distress, for that is a breach of the \
peace. But when he was in the house, it was held that ho
might break open an inner door; and now [by statute] he
may, by the assistance of the peace-officer of the parish,
break open in the daytime any place whither the goods have
been fraudulently removed and locked up to prevent a dis-
tress, oath being first made, in case it be a dwelling-house,
of a reasonable ground to suspect that such goods are con-
cealed therein.
Where a man is entitled to distrain for an entire duty, he
ought to distrain for the whole at once, and not for part at
one time and part at another. But if he distrains for the
whole and there is not sufficient on the premises, or he hap-
pens to mistake in the value of the thing distrained, and
so takes an insufficient distress, he may take a second dis-
tress to complete his remedy. [12]
Distresses must be proportioned to the thing distrained
for. By the statute of Marlbridge, 52 Hen. III. c. 4, if any
man takes a great or unreasonable distress for rent-arrere,
he shall be heavily amerced for the same. As if the land-
lord distrains two oxen for twelve-pence rent, the taking of
both is an unreasonable distress; but If there were no other
distress nearer the value to be found, he might reasonably
have distrained one of them; but for homage, fealty, or
suit and service, as also for parliamentary wages, it is said
that no distress can be excessive. For as these distresses
cannot be sold, the owner upon making satisfaction may
have his chattels again. The remedy for excessive dis-
REDRESS OF PRIVATE WRONGS. [BooK III.
tresses is by a special action on the statute of Marlbridge,
for an action of trespass is not maintainable upon this ac-
count, it being no injury at the common law.
When the distress is thus taken, the next consideration
is' the disposal of it. For which purpose the things dis-
trained must in the first place be carried to some pound, and
there impounded by the taker. But in their way thither
they may be rescued by the owner, in case the distress was
taken without cause, or contrary to law, as if no rent be due :
if they were taken upon the highway, or the like: in these
cases the tenant may lawfully make rescue. But if they be
once impounded, even though taken without any cause, the
owner may not break the pound and take them out, for
they are then in the custody of the law.
A pound (parcus, which signifies any inclosure) is either
pound-overt, that is open overhead, or pound-covert, that
is close. By the statute 1 & 2 P. & M. c. 12, no distress of
cattle can be driven out of the hundred where it is taken,
unless to a pound-overt within the same shire, and within
three miles of the place where it was taken. [13] This
is for the benefit of the tenants, that they may know where
to find and replevy the distress. And by statute 11 Greo. II.
c. 19, which was made for the benefit of landlords, any per-
son distraining for rent may turn any part of the premises
upon which a distress is taken into a pound, pro hac vice,
for securing of such distress. If a live distress, of animals,
be impounded in a common pound-overt, the owner must
take notice of it at his peril; but if in any special pound-
overt, so constituted for this particular purpose, the dis-
trainor must give notice to the owner; and in both these
cases the owner, and not the distrainor, is bound to pro-
vide the beasts with food and necessaries. But if they are
put in a pound-covert, in a stable, or the like, the landlord
or distrainor must feed and sustain them. A distress of
household goods or other dead chattels which are liable
to be stolen or damaged by weather, ought to be impounded
in a pound-covert, else the distrainor must answer for the
consequences.
When impounded the goods were formerly only in the
CHAP. I.] REDRESS OF PRIVATE WRONGS. 431
nature of a pledge or security to compel the performance
of satisfaction, and upon this account it hath been held
that the distrainor is not at liberty to work or use a dis-
trained beast. And thus the law still continues with regard
to beasts taken damage-feasant, and distresses for suit or
services which must remain impounded till the owner makes
satisfaction or contests the right of distraining by replevy-
ing the chattels. To replevy 8 (replegiare, that is, to take
back the pledge) is when a person distrained upon applies
to the sheriff or his officers, and has the distress returned
into his own possession upon giving good security to try
the right of taking it in a suit of law, and, if that be deter-
mined against him, to return the cattle or goods once more
into the hands of the distrainor.
This kind of distress, though it puts the owner to incon-
venience, and is therefore a punishment to him, yet, if he
continues obstinate and will make no satisfaction or pay-
ment, it is no remedy at all to the distrainor. [14] But
for a debt due to the crown, unless paid within forty days,
the distress was always salable at common law. And for
an amercement imposed at a court-leet the lord may also
sell the distress; partly because,~being the king's court of
record, its process partakes of the royal prerogative, but
principally because it is in the nature of an execution to
levy a legal debt. And so, in the several statute-distresses
before mentioned, which are also in the nature of execu-
tions, the power of sale is likewise usually given to effectu-
ate and complete the remedy. And in like manner, by sev-
eral acts of parliament, in all cases of distress for rent, if
the tenant or owner do not, within five days after the dis-
tress is taken, and notice of the cause thereof given him,
replevy the same with sufficient security, the distrainor,
with the sheriff or constable, shall cause the same to be
appraised by two sworn appraisers, and sell the same
towards satisfaction of the rent and charges, rendering the
overplus, if any, to the owner himself.
The many particulars wiiich attend the taking of a dis-
tress used formerly to make it a hazardous kind of pro-
8. See action of replevin, post.
432 REDRESS OF PRIVATE WRONGS. [lk>OK III.
ceeding; for if any one irregularity was committed it viti-
ated the whole, and made the distrainors trespassers ab
initio. 9 [15] But now, by the statute 11 Geo. II. c. 19,
it is provided, that for any unlawful act clone the whole
shall not be unlawful or the parties trespassers ab initio,
but that the party grieved shall only have an action for the
real damage sustained, and not even that if tender of
amends is made before any action is brought.
VI. The seizing of heriots, when due on the death of a tenant, is also
another species of self-remedy, not much unlike that of taking cattle or
goods in distress. As for that division of heriots which is called heriot-
service, and is only a species of rent, the lord may distrain for this as
well as seize; but for heriot-custom (which Sir Edward Coke says lies
only in prender, and not in render) the lord may seize the identical thing
itself, but cannot distrain any other chattel for it. The like speedy and
effectual remedy of seizing is given with regard to many things that are
said to lie in franchise, as waifs, wrecks, estrays, deodands, and the like,
all which the person entitled thereto may seize without the formal pro-
cess of a suit or action.
I shall next briefly mention such remedies as arise from
the joint act of all the parties together.
I. Accord is a satisfaction agreed upon between the party
injuring and the party injured, which, when performed, is
a bar of all actions upon this account. 1
II. Arbitration is where the parties, injuring and injured,
submit all matters in dispute concerning any. personal chat-
tels or personal wrong to th'e judgment of two or more arbi-
trators, who are to decide the controversy; and if they
do not agree it is usual to add that another person be called
in as umpire (imperator or impar), to whose sole judgment
it is then referred ; or frequently there is only one arbitra-
9. This is the rule in the leading A mere nonfeasance docs not
case known as the Six Carpenters' amount to such an abuse as renders
Case, viz., that if a man abuses an a man a trespasser 06 initio. Ib. ;
authority given him by law, he be- see, also, Cooley on Torts (Students'
comes a trespasser ab initio, i. e., Ed.). 331; Hale on Torts, 391.
from the beginning, though it is 1. See the leading case of Cumber
otherwise of an authority given by v. Wane, 1 Strange, 426: 1 Smith's
the party. The Six Carpenters' C ase, Lead. Cases, *439 and notes, where
8 Coke, 146;' 1 Smith's Lead. Cas s, the subject is fully considered.
*216.
CHAP. I.] REDRESS OF PRIVATE WRONGS. 433
tor originally appointed. This decision in any of these
cases is called an award. And thereby the question Js as
fully determined, and the right transferred or settled, as it
could have been by the agreement of the parties or the
judgment of a court of justice. But the right of real prop-
erty cannot thus pass by a mere award, which subtilty in
point of form (for it is now reduced to nothing else) had
its rise from feodal principles; for if this had been per-
mitted the land might have been aliened collusively with-
out the consent of the superior. Yet doubtless an arbitra-
tor may now award a conveyance or a release of land, and it
will be a breach of the arbitration-bond to refuse com-
pliance. For though originally the submission to arbitra-
tion used to be by word or by deed, yet both of these, being
revocable in their nature, it is now become the practice to
enter into mutual bonds with condition to stand to the
award or arbitration of the arbitrators or umpire therein
named. The legislature has now established the use of
arbitrations, as well in controversies where causes are de-
pending as in those where no action is brought, enacting, by
statute 9 & 10 W. III. c. 15, that all merchants and others
who desire to end any controversy, suit, or quarrel (for
which there is no other remedy but by personal action or
suit in equity), may agree that their submission of the suit
to arbitration or umpirage shall be made a rule of any of
the king's courts of record, 2 and may insert such agreement
in their submission or promise, 'or condition of the arbitra-
tion-bond; which agreement being proved upon oath by one
of the witnesses thereto, the court shall make a rule that
such submission and ward shall be conclusive. And after
such rule made, the parties disobeying the award shall be
liable to be punished as for a contempt of the court, unless
such award shall be set aside for corruption or other mis-
behavior in the arbitrators or umpire, proved on oath to
the court within one term after the award is made.
2. Similar statutes are to be found eludes both suits pending and also
probably in all the states, including matters not in suit. See 111. Rev.
causes of action both real and per- Stat., ch. 10, sees. 1 and 16.
eonal. In Illinois, the statute in-
, 28
434: REDRESS BY LAW. [BOOK III.
CHAPTER II.
OF REDRESS BY THE MERE OPERATION OF LAW.
The remedies for private wrongs which are effected by
the mere operation of the law will fall within a very narrow
compass, there being only two instances of this sort that at
present occur to my recollection; the one that of retainer,
where a creditor is made executor or administrator to his
debtor; the other, in the case of what the law calls a re-
mitter. [18]
I. If a person indebted to another makes his creditor or
debtee his executor, or if such a creditor obtains letters of
administration to his debtor, in these cases the law gives
him a remedy for his debt by allowing him to retain so much
as will pay himself before any other creditors whose debts
are of equal degree. 1 But the executor shall not retain his
own debt in prejudice to those of a higher degree. Neither
shall one executor be allowed to retain his own debt in
prejudice to that of his co-executor in equal degree, but
both shall be discharged in proportion. Nor shall an ex-
ecutor of his own wrong be in any case permitted to retain.
II. Remitter is where he who hath the true property or
jus proprietatis in lands, but is out of possession thereof,
and hath no right to enter without recovering possession
in an action, hath afterwards the freehold cast upon him
by some subsequent and, of course, defective title: in this
case he is remitted or sent back by operation of law to his
ancient and more certain title. 2
1. This is the rule of the common United States it is, as a rule, other-
law, but in the United States, except wise. Schouler on Wills and Admin.,
in a few states, all creditors of equal 412 and note.
rank share alike. Schouler on Wills 2. See, generally, 18 Vin. Abr. tit.
and Admin., 509 and note. Remitter; Co. Litt., 347 note. Where
By the common law, also, the ap- the right is barred by the Statute of
pointment of one's debtor to be exec- Limitations there can be no remitter,
ntor of the will was held to extinguish Daniel v. Woodroff, 10 M. & W. 693;
the debt, though this favor did not 15 id. 769; 2 H. L. Cas. 811.
i.\ lend to an administrator, but in the
CHAP. II.] KEDRESS BY LAW. 435
As if A disseizes B, that is, turns him out of possession, and dies, leav-
ing a son, C, hereby the estate descends to C, the son of A, and B is
barred from entering thereon till he proves his right in an action. Now
if afterwards C, the heir of the disseizor, makes a lease for life to D,
with remainder to B, the disseizee, for life, and D dies, hereby the re-
mainder accrues to B, the disseizee, who thus gaining a new freehold by
virtue of the remainder, which is a bad title, is by act of law remitted,
or in of his former and surer estate. [20] For he hath hereby gained a
new right of possession, to which the law immediately annexes his an-
cient right of property.
If the subsequent estate, or right of possession, be gained by a man's
own act or consent, as by immediate purchase, being of full age, ha
shall not be remitted, for the taking such subsequent estate was his own
folly, and shall be looked upon as a waiver of his prior right. Therefore
it is to be observed that to every remitter there are regularly these in-
cidents: an ancient right, and a new defeasible estate of freehold uniting
in one and the same person, which defeasible estate must be cast upon
the tenant, not gained by his own act or folly. But there shall be no re-
mitter to a right for which the party has no remedy by action. [21]
43G OF COURTS IN GENERAL. [Boox III.
CHAPTER III.
OF COURTS IN GENERAL.
The next and principal object of our inquiries is the re-
dress of injuries by suit in courts, wherein the act of the par-
ties and the act of law co-operate. [22]
And here, although in the several cases of redress by the
act of the parties mentioned in a former chapter, the law
allows an extrajudicial remedy, yet that does not exclude
the ordinary course of justice, but it is only an additional
weapon put into the hands of certain persons in particular
instances. Therefore, though I may defend myself or rela-
tions from external violence, I yet am afterwards entitled
to an action of assault 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 action of
trover or detinue, &c.
But as to remedies by the mere operation of law, those
are indeed given, because no remedy can be ministered by
suit or action without running into the palpable absurdity
of a man's bringing an action against himself, the two cases
wherein they happen being such wherein the only possible
legal remedy would be directed against the very person
himself who seeks relief. [23]
In all other cases it is a general and indisputable rule,
that where there is a legal right there is also a legal remedy
by suit or action at law, whenever that right is invaded. 1
First, then, of courts of justice. A court is defined to be
a place wherein justice is judicially administered. 2
Courts are either courts of record or not of record. A
court of record is that where the acts and judicial proceed-
ings are enrolled in parchment for a perpetual memorial
and testimony, which rolls are called the records of the
1. Ev;ry injury imports a dam- Ld. Raym. 938; 1 Smith's Lead Cases,
age; and wherever there has be?n an^ *342 ct seq.; Broom's Leg. Max.. *180.
invasion of a legal right the law gives 2. A court is a tribunal established
a remedy by action. This is the rule by law for the administration of jus-
in the great case of Ashliy v. White, tice according to law.
CHAP. I IT.] OF COURTS ix GENERAL.
court, and are of such high and supereminent authority
that their truth is not to be called in question. [24] For
it is a settled rule and maxim that nothing shall be averred
against a record, nor shall any plea, or even proof, be ad-
mitted to the contrary. 3 And if the existence of a record
be denied, it shall be tried by nothing but itself, that is,
upon bare inspection whether there be any such record
or no, else there would be no end of disputes. But if there
appear any mistake of the clerk in making up such 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 dig-
nity, and therefore no other court hath authority to fine
or imprison, so that the very erection of a new jurisdiction
with the power of fine or imprisonment makes it instantly
a court of record. [25] A court not of record is the court
of a private man [not so in the United States], whom the
law will not intrust with any discretionary power over the
fortune or liberty of his fellow-subjects. Such are the
courts-baron incident to every manor and other inferior
jurisdictions where the proceedings are not enrolled or re-
corded; but as well their existence as the truth of the mat-
ters therein contained shall, if disputed, be tried and deter-
mined by a jury. These courts can hold no plea of matters
cognizable by the common law unless under the value of
40s v nor of any forcible injury whatsoever, not having any
process to arrest the person of the defendant. 4
In every court there must be at least three constituent
parts, the actor, reus, and judex: the actor, or plaintiff, who
complains of an injury done; the reus, or defendant, who
is called upon to make satisfaction for it; and the judc.r,
3. Where a court of general juris- contrary appears. On the other hand,
diction has jurisdiction of the parties no such intendment is made in favor
and of the subject-matter, the above- of the judgment of a court of limited
stated rule, in the absence of fraud, jurisdiction, but jurisdiction must
will always apply. See Cooley's Const. affirmatively appear on the face of
Lim. (7th Ed.), 40, 585 and notes; the minutes of the proceedings,
and in superior courts of record pro- Cooley's Const. Lim. (7th Ed.), 585
ceeding according to the course of the and cases cited.
common law and not exercising some 4. The most common court not of
special or limited jurisdiction, juris- record in the United States is that of
diction will be presumed unless the justices of the peace.
438 OF COURTS IN GENERAL. [BOOK III.
or judicial power, which is to examine the truth of the
fact, to determine the law arising upon that fact, and if
any injury appears to have been done, to ascertain, and bj 7
its officers to apply the remedy. It is also usual -in the
superior courts to have attorneys and advocates, or counsel,
as assistants.
An attorney at law is one who is put in the place, stead,
or turn of another to manage his matters of law. For-
merly every suitor was obliged to appear in person to pros-
ecute or defend his suit, according to the old Gothic con-
stitution, unless by special license under the king's letters
patent. This is still the law in criminal cases. 5 And an
idiot cannot to this day appear by attorney, but in person,
for he hath not discretion to enable him to appoint a proper
substitute; and upon his being brought before the court in
so defenceless a condition, the judges are bound to take
care of his -interests, and they shall admit the best plea
in his behalf that any one present can suggest. [26] But
with us, upon the principle of convenience, it is now per-
mitted in general, by divers ancient statutes, whereof the
first is statute Westm. 3, c. 10, that attorneys may be made
to prosecute or defend any action in the absence of the
parties to the suit. These attorneys are now formed into a
regular corps; they are admitted to the execution of their
office by the superior courts of Westminster Hall, and are
in all points officers of the respective courts of which they
are admitted, and as they have many privileges on account
of their attendance there, so they are peculiarly subject to
the censure and animadversion of the judges. No man can
practice as an attorney in any of those courts but such as
is admitted and sworn an attorney of that particular court;
an attorney of the Court of King's Bench cannot practise
in the Court of Common Pleas, nor vice versa. [Serjeants no
longer monopolize the practice of the Common Pleas.] To
practise in the Court of Chancery it is also necessary to be
admitted a solicitor therein. So early as the statute
5. Parties may now always appear
by attorney except in certain dilla-
tory pleas considered later oil.
CHAP. III.] OF COURTS IN GENERAL. 439
4 Henry IV. c. 18, it was enacted that attorneys should be
examined by the judges, and none admitted but such as
were virtuous, learned, and sworn to do their duty. And
many subsequent statutes have laid them under farther
regulations.
Of advocates or, as we generally call them, counsel, there
are two species or degrees, barristers and Serjeants. The
former are admitted after a considerable period of study,
or at least standing, in the inns of court, and are in our old
books styled apprentices, apprcnticU ad legem? being
looked upon as merely learners and not qualified to execute
the full office of an advocate till they were sixteen years
standing, at which time, according to Fortescue, they might
be called to the state and degree of Serjeants, or servientcs
ad legem. 7 [27] Serjeants at law are bound by a solemn
oath to do their duty to their clients; and that by custom
the judges of the courts of Westminster are always admit-
ted into this venerable order before they are advanced to
the bench. From both these degrees some are usually
selected to be his majesty's counsel learned in the law, the
two principal of whom are called his attorney and solicitor-
general. They must not be employed in any cause against
the crown without special license. A custom has of late
years prevailed of granting letters patent of precedence to
such barrister as the crown thinks proper to honor with
that mark of distinction, whereby they are entitled to such
rank and pre-audience as are assigned in their respective
patents; sometimes next after the king's attorney-general,
but usually next after his majesty's counsel then being.
These, as well as the queen's attorney and solicitor-general,
rank promiscuously with the king's counsel, and together
with them sit within the bar of the respective courts, but
receive no salaries, and are not sworn, and therefore are at
liberty to be retained in causes against the crown. And
all other Serjeants and barristers indiscriminately, except in
the Court of Common Pleas, where only Serjeants are ad-
mitted, may take upon them the protection and defence
6. Apprentices at law. The degree of sergeant has been abol-
7. Servants (or sergeants) at law. ished.
4-iO OF COURTS IN GENERAL. [BooK III.
of any suitors, whether plaintiff or defendant, who are
therefore called their clients, like the dependants upon the
ancient Roman orators. Those, indeed, practised gratis, for
honor merely, or at most for the sake of gaining influence;
and so likewise it is established with us that a counsel can
maintain no action for his fees, 8 which are given, not as
locatio vel conductio, but as quiddam honorarium; not as a
i alary or hire, but as a mere gratuity, which a counsellor
cannot demand without doing wrong to his reputation.
And in order to encourage due freedom of speech in the
lawful defence of their clients, and at the same time to give
a check to the unseemly licentiousness of prostitute and
illiberal men, it hath been holden that a counsel is not
answerable for any matter by him spoken relative to the
cause in hand and suggested in his client's instructions,
although it should reflect upon the reputation of another,
and even prove absolutely groundless; but if he mentions
an untruth of his own invention, or even upon instructions
if.it be impertinent to the cause in hand, he is then liable
to an action from the party injured. 9 And counsel guilty
of deceit or collusion are punishable by the statute Westm.
I. 3 Edw. I. c. 28, with imprisonment for a year and a day,
and perpetual silence in the courts, a punishment still
sometimes inflicted for gross misdemeanors in practice. 1
8. Otherwise in the United States, 631 and notes. See, g nerally, as to
where attorneys at law may maintain attorneys at law, Thornton on Attor-
actions for their fees. The distinction neys (1914), 2 vols.; Weeks on At-
bftween attorneys and barristers at torneys (2d Ed.), 1892; 2 Broom &
law prevails in Canada, but not in Hadley's Com., *22 et seq.
the federal and state jurisdictions, ex- 1. As to the liability of attorneys
cept in New Jersey. for negligc-nce, see Cooley on Torts
Q. Cooley's Const. Lim. (7th Ed.), (Students' Ed.), 670.
CHAP. IV.]
COUETS OF COMMON LAW.
441
CHAPTER IV.
OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY. 1
Courts of justice in this kingdom are either such as are
of public and general jurisdiction throughout the whole
realm, or such as are only of a private and special juris-
diction in some particular parts of it. [30] Of the former
there are four sorts: the universally established courts of
common law and equity, the ecclesiastical courts, the courts
military, and courts maritime.
And, first, of such public courts as are courts of common
law and equity.
I. The lowest, and at the same time the most expeditious, court of
justice known to the law of England is the court of piepoudre (curia
pcdis pulverizati) ,2 so called from the dusty feet of the suitors, or, accord-
ing to Sir Edward Coke, because justice is there done as speedily as
1. A most radical change has been
made in the English system of courts
by the Supreme Court of Judicature
Act of 1873 and 1875, to which the
student is referred for particulars.
Without going into details it may be
here stated that nearly all the then
existing courts were consolidated into
one great court called " The Supreme
Court of Judicature," consisting of
two divisions, one a court of original
jurisdiction (the High Court of Jus-
tice), and one of appellate jurisdic-
tion ("Her Majesty's Court of Ap-
peal"). The House of Lords still
holds its final appellate jurisdiction.
The High Court of Justice consisted
originally of five divisions called re-
spectively the Queen's Bench, Common
Pleas, Exchequer, Chancery and Pro-
bate, Divorce and Admiralty Divi-
sions, which, in substance, succeeded
the courts of corresponding name. The
throe common law divisions wpre later
in 1881 united into the Queen's Bench
Division. One rule of great import-
ance was established, viz., that except
as to probate, divorce and admiralty
cases which must be brought in the
division of that name, the classifica-
tion of cases indicated by the nam? s
of the divisions was not jurisdictional,
but rather one of convenience for the
dispatch of business, so that an error
as to the selection of the court of
first instance would not result in the
dismissal of the action or bill as for-
merly, but, at most, only in its trans-
fer to another division. Other im-
portant changes were made, but for
details the statutes must be consulted.
As the books for generations back
are full of references to the old sys-
tem, it has been retained in the text.
2. Court of dusty feet. The de-
scription of these courts is now of
historical interest only.
442 COURTS OF COMMON LAW. [Booic III.
dust can fall from the foot. [32] But the etymology given us by a learned
modern writer [Harrington] is much more ingenious and satisfactory,
it being derived, according to him, from pied puldreaux (a pedler, in old
French), and therefore signifying the court of such petty chapmen as
resort to fairs or markets. It is a court of record incident to every fair
and market, of which the steward of him who owns or has the toll of the
market is the judge, and its jurisdiction extends to administer justice
for all commercial injuries done in that very fair or market, and not in
any preceding one. So that the injury must be done, complained of,
heard, and determined within the compass of one and the same day,
unless the fair continues longer. The court hath cognizance of all mat-
ters of contract that can possibly arise within the precinct of that fair
or market, and the plaintiff must make oath that the cause of an action
arose there. [33]
II. The court-baron is a court incident to every manor in the kingdom,
to be holden by the steward within the said manor. This court-baron
is of two natures: the one is a customary court, of which we formerly
spoke, appertaining entirely to the copyholders, in which their estates are
transferred by surrender and admittance, and other matters transacted
lelative to their tenures only. The other, of which we now speak, is a
court of common law; and it is the court of the barons, by which name
the freeholders were sometimes anciently called, for that it is held be-
fore the freeholders who owe suit and service to the manor, the steward
being rather the registrar than the judge. These courts, though in their
nature distinct, are frequently confounded together. The court we are
now considering, viz., the freeholders' court, was composed of the lord's
tenants, who were the pares of each other, and were bound by their feodal
tenure to assist their lord in the dispensation of domestic justice. This
was formerly held every three weeks, and its mosit important business
is to determine, by writ of right, all controversies relating to the right
of lands within the manor. It may also hold plea of any personal ac-
tions, of debt, trespass on the case, or the like, where the debt or dam-
ages do not amount to forty shillings.
III. A hundred-court is only a larger court-baron, being held for all
the inhabitants of a particular hundred instead of a manor. [34] The
free suitors are here also the judges, and the steward the registrar, as
in the case of court-baron. It is likewise no court of record, resembling
the former in all points, except that in point of territory it is of greater
jurisdiction.
IV. The county-court 3 is a court incident to the jurisdiction of tha
sheriff. It is not a court of record, but may hold pleas of debt or dam-
ages under the value of forty shillings. The county-court may also hold
plea of many real actions, and of all personal actions to any amount by
virtue of a special writ called a justicies, which is a writ empowering
3. We have county courts in some courts quite different from the one
of the states, but they are statutory described in the text.
CHAP. IV.] COURTS OF COMMON LAW. 443
the sheriff for the sake of despatch to do the same justice in his county-
court as might otherwise be had at Westminster. [36] The freeholders
of the county are the real judges in this court, and the sheriff is the*
ministerial officer.
V. The Court of Common Pleas, or, as it is frequently
termed in law, the court of common bench. [37]
By the ancient Saxon constitution there was only one
superior court of justice in the kingdom, and that court had
cognizance both of civil and spiritual causes, viz., the
wittena-gemote, or general council, which assembled an-
nually, or oftener, wherever the king kept his Christmas,
Easter, or Whitsuntide, as well to do private justice as to
consult upon public business. At the Conquest the ecclesi-
astical jurisdiction was diverted into another channel, and
the Conqueror, fearing danger from these annual parlia-
ments, contrived also to separate their ministerial power,
as judges, from their deliberative, as counselors to the
crown. He therefore established a constant court in his
own hall, thence called by Bracton and other ancient au-
thors a ul a regia, or aula reyis.* This court was composed
of the king's great officers of state resident in his palace
and usually attendant on his person. These high officers
were assisted by certain persons learned in the laws, who
were called the king's justiciars or justices, and by the
greater barons of parliament, all of whom had a seat in the
aula regia, and formed a kind of court of appeal, or rather
of advice, in matters of great moment and difficulty. [38]
All these in their several departments transacted all secular
business, both criminal and civil, and likewise the matters
of the revenue ; and over all presided one special magistrate,
called the chief justiciar, or capitaUs jnttiriarius totins
Anyliae, 5 who was also the principal minister of state, the
second man in the kingdom, and by virtue of his office
guardian of the realm in the king's absence. This great
universal court being bound to follow the king's household
in all his progresses and expeditions, the trial of common
causes therein was found very burdensome to the subject.
4. Hall or Court of the King, the 5. Chief justice of all England.
Kinjj's Bench.
444 COURTS OF COMMOX LAW. [BooKlIL
Wherefore King John, who dreaded also the power of the
justiciar, very readily consented to that article which now
forms the eleventh chapter of Mayna, (Jarta, and enacts
" that communia placita non sequantur curiam regis, sed
teneantur in aliquo loco certo." This certain place was
established in Westminster Hall, the place where the auhi
regis originally sat when the king resided in that city, and
there it hath ever since continued. And the court being
thus rendered fixed and sationary, the judge became so too,
and a chief with other justices of the Common Pleas was
thereupon appointed, with jurisdiction to. hear and deter-
'mine all pleas of land, and injuries merely civil, between
subject and subject.
The oula regia being thus stripped of so considerable a branch of Its
jurisdiction, and the power of the chief justiciar being also considerably
curbed by many articles in the Great Charter, the authority of both be-
gan to decline apace under the long and troublesome reign of King Henry
III. And, in further pursuance of this example, the other, several offices
of the chief justiciar were under Edward I. (who new-modelled the whole
frame of our judicial polity) subdivided and broken into distinct courts
of judicature. A court of chivalry was erected, over which the constable
and mareschal presided, as did the steward of the household over an-
other constituted to regulate the king's domestic servants. The high
steward, with the barons of parliament, formed an august tribunal for
the trial of delinquent peers, and the barons reserved to themselves in
parliament the right of reviewing the sentences of other courts in the
last resort. The distribution of common justice between man and man
was thrown into so provident an order that the great judicial officers
were to form a check upon each other, the Court of Chancery issuing all
original writs under the Great Seal to the other courts, the Common
Pleas being allowed to determine all causes between private subjects, the
Exchequer managing the king's revenue, and the Court of King's Bench
retaining all the jurisdiction which was not cantoned out to other
courts, and particularly the superintendence of all the rest by way of ap-
peal, and the sole cognizance of pleas of the ^ crown or criminal
causes. [40]
For pleas or suits are regularly divided into two sorts:
pleas of the crown, which comprehend all crimes and mis-
6. Let not the common pleas follow
the King's Court, but be held in som
c< rtain place.
CHAP. IV.] COURTS OF COMMON LAW. 445
demeanors, wherein the king (on behalf of the public) is
the plaintiff, and common pleas, which include all civil
actions depending between subject and subject. The
former of these were the proper object of the jurisdiction
of the Court of King's Bench, the latter of the Court of
Common Pleas, which is a court of record, and is styled by
Sir Edward Coke the lock and key of the common law; for
herein only can real actions that is, actions which con-
cern the right of freehold or the realty be originally
brought, and all other or personal pleas between man and
man are likewise here determined, though in most of them
the King's Bench has also a concurrent authority.
The judges of this court are at present four in number, one chief and
three puisne justices, created by the king's letters-patent, who sit every
day in the four terms to hear and determine all matters of law arising
in civil causes, whether real, personal, or mixed and compounded of
both. [The constitution of this and of the other superior courts below
mentioned was changed by the Supreme Court of Judicature Act, which
see.] These it takes cognizance of, as well originally as upon removal
from the inferior courts before 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 Court of King's Bench (so called because the
king used formerly to sit there in person, the style of the
court still being coram ipso rege) 7 is the supreme court of
common law in the kingdom, consisting of a chief justice
and three puisne 8 justices, who are by their office the sov-
ereign conservators of the peace and supreme coroners of
the land. [41] Yet though the king himself used to sit in
this court, and still is supposed so to do, he did not, neither
by law is he empowered to, determine any cause or motion
but by the mouth of his judges, to whom he hath committed
his whole judicial authority.
This court, which (as we have said) is the remnant of the
aula rcgia, is not, nor can be, from the very nature and
constitution of it, fixed to any certain place, but may follow
the king's person wherever he goes; for which reason all
process issuing out of this court in the king's name is re-
7. Before the king himself. 8. Younger.
-
446 COUETS OF COMMON LAW. [BooKlII.
tiirnable " -ulrirunque fiicrim-us in Anyliu." 9 It hath, indeed,
for some centuries past, usually sat at Westminster, being
an ancient palace of the crown, but might remove with the
king to York or Exeter, if he thought proper to command it.
The jurisdiction of this court is very high and transcend-
ent. It keeps all inferior jurisdictions within the bounds
of their authority, and may either remove their proceedings
to be determined here, or prohibit their progress below. [42 ]
It superintends all civil corporations in the kingdom. It
commands magistrates and others to do what their duty
requires, in every case where there is no other specific
remedy. It protects the liberty of the subject by speedy
and summary interposition. It takes cognizance both of
criminal and civil causes; the former in what is called the
crown-side or crown-office, the latter in the plea-side of the
court. The jurisdiction of the crown-side it is not our
present business to consider. But on the plea-side, or civil
branch, it hath an original jurisdiction and cognizance of
all actions of trespass, or other injury alleged to be com-
mitted vi ct armis: 1 of actions for forgery of deeds, main-
tenance, conspiracy, deceit, and actions on the case which
allege any falsity or fraud; all of which savor of a criminal
nature, although the action is brought for a civil remedy,
and make the defendant liable in strictness to pay a fine
to the king as well as damages to the injured party. The
same doctrine is also now extended to all actions on the
case whatsoever; but no action of debt or detinue, or other
mere civil action, can by the common IQW be prosecuted by
any subject in this court, by original writ out of Chancery,
though an action of debt, given by statute, may be brought
in the King's Bench as well as in the Common Pleas. And
yet this court might always have held plea of any civil
action (other than actions real), provided the defendant
was an officer of the court, or in the custody of the marshal
or prison-keeper of this court, for a breach of the peace or
any other offence. And in process of time it began by a
fiction to hold plea of all personal actions whatsoever, and
9. WlK-rever we shall be in Eng- 1. Force and arms,
land.
CHAP. IV.] COURTS OF COMMON LAW. 447
lias continued to do so for ages; it being surmised that the
defendant is arrested for a supposed trespass which he
never has in reality committed, and being thus in the cus-
tody of the marshal of the court, the plaintiff is at liberty
to proceed against him for any other personal injury, which
surmise of being in the marshal's custody the defendant is
not at liberty to dispute. [43] And these fictions of law,
though at first they may startle the student, he will find
upon further consideration to be highly beneficial and use-
ful, especially as this maxim is ever invariably observed,
that no fiction shall extend to work an injury, its proper
operation being to prevent a mischief or remedy an incon-
venience that might result from the general rule of law.
For this court is likewise a court of appeal into which
may be removed by a writ of error all determinations of
the Court of Common Pleas and all inferior courts of record
in England, and to which a writ of error lies also from the
Court of King's Bench in Ireland. Yet even this so high
and honorable court is not the dernier resort of the subject,
for if he be not satisfied with any determination here he
may remove it by writ of error into the House of Lords or
the Court of Exchequer Chamber, as the case may happen,
according to the nature of the suit and the manner in which
it has been prosecuted.
VII. The Court of Exchequer is inferior in rank not only
to the Court of King's Bench, but to the Common Pleas
also; but I have chosen to consider it in this order on ac-
count of its double capacity as a court of law and a court
of equity also. It is a very ancient court of record set up
by William the Conqueror as a part of the aula regia, though
regulated and reduced to its present order by King Edward
I., and intended principally to order the revenues of the
crown and to recover the king's debts and duties. [44] It
consists of two divisions : the receipt of the exchequer which
manages the royal revenue, and with which these Commen-
taries have no concern, and the court or judicial part of it,
which is again subdivided into a court of equity and a court
of common law.
443 COURTS OF EQUITY. [Booic III.
The Court of Equity is held in the Exchequer Chamber
before the Lord Treasurer, the Chancellor of the Exchequer,
the Chief Baron, and three puisne ones. The primary and
original business of this court is to call the king's debtors
to account by bill filed by the attorney-general, and to re-
cover any lands, tenements, or hereditaments, any goods,
chattels, or other profits or benefits, belonging to the crown.
So that by their original constitution the jurisdiction of
the Court of Common Pleas, King's Bench, and Exchequer
was entirely separate and distinct : the Common Pleas being
intended to decide all controversies between subject and
subject; the King's Bench to correct all crimes and misde-
meanors that amount to a breach of the peace, the king
being then plaintiff, as such offences are in open derogation
of the jura regalia 2 of his crown; and the Exchequer to ad-
just and recover his revenue, wherein the king also is plain-
tiff, as the withholding and non-payment thereof is an in-
jury to his jura fiscalia. [45] But, as by a fiction almost
all sorts of civil actions are now allowed to be brought in
the King's Bench, in like manner by another fiction all
kinds of personal suits may be prosecuted in the Court of
Exchequer. For as all the officers and ministers of this
court have, like those of other superior courts, the privilege
of suing and being sued only in their own court, so also the
king's debtors and farmers, and all accomptants of the
Exchequer, are privileged to sue and implead all manner
of persons in the same court of equity that they themselves
are called into. They have likewise privilege to sue and
irnplead one another, or any stranger, in the same kind of
common-law actions (where the personalty only is con-
cerned) as are prosecuted in the Court of Common Pleas.
This gives origin to the common-law part of their juris-
diction, which was established merely for the benefit of the
king's accomptants, and is exercised by the barons only of
the Exchequer, and not the treasurer or chancellor. The-
writ upon which all proceedings here are grounded is called
a quo minus, in which the plaintiff suggests that he is the
king's farmer or debtor, and that the defendant hath done
2. Royal rights.
CHAP. IV.] COURTS OF EQUITY. 449
him the injury or damage complained of, quo minus siiffi-
ricns existit, 3 by which he is less able to pay the king his
<\e\)t or rent. And these suits are expressly directed, by
what is called the statute of Rutland, to be confined to such
matters only as specially concern the king or his ministers
of the Exchequer. And by the articuli super cartas* it is
enacted that no common plea be thenceforth holden in the
Exchequer contrary to the form of the Great Charter. But
now, by the suggestion of privilege, any person may be
admitted to sue in the Exchequer as well as the king's ac-
comptant. The surmise, of being debtor to the king, is
therefore become matter of form and mere words of course,
and the court is open to all the nation equally. The same
holds with regard to the equity side of the court, for there
any person may file a bill against another upon a bare sug-
gestion that he is the king's accomptant; but whether he
is so or not is never controverted. [46] In this court on the
equity side the clergy have long used to exhibit their bills
for the non-payment of thithes, in which case the surmise
of being fhe king's debtor is no fiction, they being bound
to pay him their first-fruits and annual tenths. But the
Chancery has of late years obtained a large share in this
business.
An appeal from the equity side of this court lies imme-
diately to the House of Peers; but from the common law
side, in pursuance of the statute 31 Edw. III. c. 12, a writ
of error must be first brought into the Court of Exchequer
Chamber. And from the determination there had there lies
in the dernier resort 5 a writ of error to the House of Lords.
VIII. The High Court of Chancery is the only remaining,
and in matters of civil property by much the most import-
ant of any of the king 's superior and original courts of
justice. It has its name of chancery, cancelkiria, from the
judge who presides here, the Lord Chancellor or Canccl-
larius, who, Sir Edward Coke tells us, is so termed a cancel-
Ian do from cancelling the king's letters patent when
. granted contrary to law, which is the highest point of his
3. By which he is less able. 5. Last resort.
4. Articles on the charters.
29
450 COURTS OF EQUITY. [BOOK III.
jurisdiction. "When seals came in use he had always the
custody of the king's great seal. [47] So that the office of
chancellor or lord keeper (whose authority by statute 5
Eliz. c. 18, is declared to be exactly the same) is with us
at this day created by the mere delivery of the king's great
seal into his custody, whereby he becomes, without writ or
patent, an officer of the greatest weight and power of any
now subsisting in the kingdom, and superior in point of
precedency to every temporal lord.
He is a Privy Councillor by his office, and, according to Lord Chancellor
Ellesmere, prolocutor of the House of Lords by prescription. To him be-
longs the appointment of all justices of the peace throughout the king-
dom. Being formerly usually an ecclesiastic (for none else were then
capable of an office so conversant in writings), and presiding over the
royal chapel, he became keeper of the king's conscience; visitor, in
right of the king, of all hospitals and colleges of the king's foundation;
and patron of all the king's livings .under the value of twenty marks
per annum in the king's books. Ha is the general guardian of all infants,
idiots, and lunatics, and has the general superintendence of all charitable
uses in the kingdom. .
And all this, over and above the vast and extensive juris-
diction which he exercises in his judicial capacity in the
Court of Chancery; wherein, as in the Exchequer, there are
two distinct tribunals: the one ordinary, being a court of
common law; the other extraordinary, being a court of
equity.
The ordinary legal court is much more ancient than the court of equity.
Its jurisdiction is to hold plea upon a scire facias s to repeal and cancel
the kign's letters-patent, when made against law, or upon untrue sug-
gestions; and to hold plea of petitions, monstrans de droit,i traverses of
offices, and the like, when the king hath been advised to do any act, or is
put in possession of any lands or goods, in prejudice of a subject's right.
It also appertains to this court to hold plea of all personal actions, where
any officer or minister of the court is a party. [48] It might likewise
hold plea (by scire facias) of partitions of land in coparcenery, and of
dower, where any ward of the crown was concerned in interest, so long
as the military tenures subsisted; as it now may also do of the tithes
of forest land, where granted by the king, and claimed by a stranger
6. Make known or show why. 7. Showing of right.
CHAP. IV.] COURTS OF EQUITY. 451
against the grantee of the crown, and of executions on statutes, or re-
cognizances in nature thereof, by the statute 23 Hen. VIII. c. 6. But if
any cause comes to Issue in this court, that is, if any fact be disputed
between the parties, the chancellor cannot try it, having no power to
summon a jury, but must deliver the record propria manus j n to the Court
of King's Bench, where it shall be tried by the country and judgment*
shall be there given thereon. And when judgment is given in chancery
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 so
little is usually done on the common-law side of the court, that I have
met with no traces of any writ of error being actually brought since the
fourteenth year of Queen Elizabeth, A. D. 1572.
In this ordinary or legal court is also kept the officina
justitiae; 9 out of which all original writs that pass under
the great seal, all commissions of charitable uses, sewers,
bankruptcy, idiocy, lunacy, and the like, do issue; and for
which it is always open to the subject, who may there at
any time demand and have, ex dcltito justitiae* any writ
that his occasions may call for. [49]
But the Extraordinary Court, or Court of Equity, is now
become the court of the greatest judicial consequence.
In early times the chief judicial employment of the chan-
cellor must have been in devising new writs, directed to the
courts of common law, to give remedy in cases where none
was before administered. And to quicken the diligence of
the clerks in the chancery, who were too much attached
to ancient precedents, it is provided by statute Westm. 2,
13 Edw. I. c. 24, that " Whensoever from thenceforth in
one case a writ shall be found in the Chancery, and in a
like case falling under the same right and requiring like
remedy, no precedent of a writ can be produced, the clerks
in Chancery shall agree in forming a new one; and, if they
cannot agree, it shall be adjourned to the next parliament,
where a writ shall be framed by consent of the learned in
the law, lest it happen for the future, that the court of our
lord the king be deficient in doing justice to the suit-
ors." [51] And this accounts for the very great variety of
writs of trespass on the case, to. be met with in the register,
8. With his own hand. 1. Out of debt to justice^
0. Office of justice. : io y-fiK-s
452 COURTS OF EQUITY. [BOOK III.
whereby the suitor had ready relief, according to the ex-
igency of his business, and adapted to the specialty, reason,
and equity of his very case, which provision (with a little
accuracy in the clerks of the Chancery, and a little liberality
in the judges, by extending rather than narrowing the
remedial effects of the writ) might have effectually an-
swered all the purposes of a court of equity, except that of
obtaining a discovery by the oath of the defendant.
But when, about the end of the reign of King Edward
III., uses of land were introduced, and, though totally dis-
countenanced by the courts of common law, were considered
as fiduciary deposits and binding in conscience by the
clergy, the separate jurisdiction of the Chancery as a court
of equity began to be established; and John Waltham, who
was Bishop of Salisbury and Chancellor to King Richard
II., by a strained interpretation of the above-mentioned
statute of Westm. 2, devised the writ of subpoena, return-
able in the Court of Chancery only, to make the feoffee to
uses accountable to his cestuy que use; and in Edward IV. 's
time the process by bill and subpoena was become the daily
practice of the court. [52]
But this did not extend very far; for in the ancient
treaties, entitled diversite des courtes, 2 supposed to be writ-
ten very early in the sixteenth century, we have a catalogue
of the matters of conscience then cognizable by subpoena in
Chancery, which fall within a very narrow compass. [53]
No regular judicial system at that time prevailed in the
court; but the suitor, when he thought himself aggrieved,
found a desultory and uncertain remedy, according to the
private opinion of the chancellor, who was generally an
ecclesiastic, or sometimes (though rarely) a statesman; no
lawyer having sat in the Court of Chancery from the times
of the Chief Justices Thorpe and Kny vet, successively chan-
cellors to King Eldward III. in 1372 and 1373, to the pro-
motion of Sir Thomas More by King Henry VIII. in 1530.
After which the great seal was indiscriminately committed
to the custody of lawyers, or couriers, or churchmen, ac-
cording as the convenience of the times and disposition of
2. Diversity of courts.
CHAP. IV.] COURTS OF EQUITY. 453
the prince required, till Serjeant Puckering was made lord
keeper in 1592; from which time to the present the Court
of Chancery has always been filled by a lawyer, excepting
the interval from 1621 to 1625, when the seal was intrusted
to Dr. Williams, then Dean of Westminster but afterwards
Bishop of Lincoln; who had been chaplain to Lord Elles-
mere when chancellor.
Lord Bacon, who succeeded Lord Ellesmere, reduced the
practice of the court into a more regular system, but did
not sit long enough to effect any considerable revolution in
the science itself; and few of his decrees which have reached
us are of any great consequence to posterity. His succes-
sors, in the reign of Charles I., did little to improve upon
his plan; and even after the Restoration the seal was com-
mitted to the Earl of Clarendon, who had withdrawn from
practice as a lawyer near twenty years; and afterwards to
the Earl of Shaftesbury, who (though a lawyer by educa-
tion) had never practised at all. Sir Heneage Finch, who
succeeded in 1673, and became afterwards Earl of Notting-
ham, a person of the greatest abilities and most uncorrupted
integrity, a thorough master and zealous defender of the
laws and constitution of his country, was enabled, in the
course of nine years, to build a system of jurisprudence and
jurisdiction upon wide and rational foundations, which
have also been extended and improved by many great men,
who have since presided in Chancery. [55] And from that
time to this, the pow r er and business of the court have in-
creased to an amazing degree.
From this court of equity in Chancery, as from the other
superior courts, an appeal lies to the House of Peers. But
there are these differences between appeals from a court of
equity and writs of error from a court of law: 1. That the
former may be brought upon any interlocutory matter, the
latter upon nothing but only a definite judgment: 2. That
on writs of error the House of Lords pronounces the judg-
ment, on appeals it gives direction to the court below to
'rectify its own decree.
IX. The next court that I shall mention is one that hath
no original jurisdiction but is only a court of appeal, to
454- COURTS OF EQUITY. [Boon III.
correct the errors of other jurisdictions. This is the Court
of Exchequer Chamber, which was first erected by statute
31 Edw. III. c. 12, to determine causes by writs of error
from the common-law side of the Court of Exchequer. And
to that end it consists of the Lord Chancellor and Lord
Treasurer, taking unto them the justices of the King's
Bench and Common Pleas. In imitation of which a second
Court of Exchequer Chamber was erected by statute 27
Eliz. c. 8, consisting of the justices of the Common Pleas
and the barons of the Exchequer, before whom writs of
error may be brought to reverse judgments in certain suits
originally begun in the Court of King's Bench. [56] Into
the court, also of Exchequer Chamber (which then consists
of all the judges of the three superior courts, and now and
then the Lord Chancellor also), are sometimes adjourned
from the other courts such causes as the judges upon argu-
ment find to be of great weight and difficulty, before any
judgment is given upon them in the court below.
From all the branches of this Court of Exchequer Cham-
ber a writ of error lies to
X. The House of Peers, which is the supreme court of
judicature in the kingdom, having at present no original
jurisdiction over causes, but only upon appeals and writs
of error, to rectify any injustice or mistake of the law com-
mitted by the courts below.
XI. Courts of Assize and Nisi Prius are composed of two
or more commissioners who are twice in every year sent
by the king's special commission all round the kingdom
(except London and Middlesex, where courts of nisi pr'ui*"'
are holden in and after every term before the chief or other
judge of the several superior courts, and except the four
northern counties, where the assizes are holden only once
a year) to try by a jury of the respective counties the truth
of such matters of fact as are then under dispute in the
courts of Westminster Hall. [57] These judges of assize
came into use in the room of the ancient justices in eyre,
justidari in itincre; but the present justices of assize and
nisi prhis are more immediately derived from the statute
3. Unless before.
CHAP. IV.] COURTS OF EQUITY. 455
Westm. 2, 13 Edw. I. c. 30, which directs them to be assigned
out of the king's sworn justices, associating to themselves one
or two discreet knights of each county. [58]
The judges upon their circuits now sit by virtue of five
several authorities. I. The commission of the peace. 2. A
commission of oyer and terminer. 3. A commission of gen-
eral gaol-delivery. The consideration of all which belongs
properly to the subsequent book of these Commentaries. [59]
4. A commission of assize directed to the justices and ser-
jeants therein named, to take (together with their associates)
assizes in the several counties; that is, to take the verdict of
a peculiar species of jury called an assize, and summoned
for the trial of landed disputes, of which hereafter. 5. That
of nisi prius, which is a consequence of the commission of
assize, being annexed to the office of those justices by the
statute of Westm. 2, 13 Edw. I. c. 30, and it empowers them
to try all questions of fact issuing out of the courts of West-
minster, that are then ripe for trial by jury. These by the
course of the courts are usually appointed to be tried at
Westminster in some Easter or Michaelmas term, by a jury
returned from the county wherein the cause of action arises ;
but with this proviso, nisi prius, unless before the day pre-
fixed the judges of assize come into the county in question.
This they are sure to do in the vacations preceding each
Easter and Michaelmas term, which saves much expense and
trouble. 4
4. The judicial system of the states Tennessee, and perhaps other states,
consists under different names, of (1) there are separate chancery courts.
Inferior courts not of record called (4) In some of the states, as in
ourts of justices of the peace, whose Illinois, there are intermediate ap-
jurisdiction is conferred and limited pellate courts, having no original ju-
by statute and varies somewhat in the risdiction.
different states. The federal juris- (5) Supreme courts having only
diction has no corresponding court. appellate jurisdiction except in a few
(2) County courts, probate courts, special cases. Besides these there are
etc. County courts sometimes have a frequently in large cities special city
limited common law jurisdiction. courts established by statute, as su-
(3) Circuit or district courts of perior courts, criminal courts, mu-
both general common law and equity nicipal courts, probate courts, etc.
jurisdiction. These are our courts " The judicial power of the United
of nisi prius. In New Jersey and States shall be vested in one Supreme
450 ECCLESIASTICAL COURTS [BOOK III.
CHAPTER V.
OF COURTS ECCLESIASTICAL, MILITARY, AND MARITIME.
[See the Supreme Court of Judicature Act, already referred
to.]
I. [The different species of ecclesiastical courts in our author's time,
beginning with the lowest, were (1) the Archdeacon's Court; (2) the
Consistory Conrt of every diocesan bishop; (3) the Court of Arches; (4)
the Court of Peculiars; (5) the Prerogatlye Court; (6) the Court of Dele-
gates; and sometimes (7) a Commission of Reyiew; none of which were
courts of record. For particulars see the text, p. 61 et seq.]
II. Next, as to the courts military. [68] The only court of this kind
known to and established by the permanent laws of the land is the Court
of ChiTalry. [Now obsolete.]
III. The Maritime Courts, or such as have power and
jurisdiction to determine all maritime injuries arising upon
the seas or in parts out of the reac,h of the common law,
are only the Court of Admiralty and its courts of appeal.
[69] The Court of Admiralty is held before the Lord High
Admiral of England or his deputy, who is called the judge
of the court. 1 According to Sir Henry Spelman and Lam-
bard it was first of all erected by King Edward III. Its
proceedings are, according to the method of the civil law,
like those of the ecclesiastical courts, upon which account
it is usually held at the same place with the superior ecclesi-
astical courts, at Doctor's Commons in London. It is no
court of record any more than the spiritual courts.
Court and in such inferior courts as (4) Besides these there are the
the Congress may from time to time court of claims, the court of customs
ordain and establish." U. S. Const., appeal, the commerce court, the courts
art. 3, sec. 1. of the District of Columbia and the
At the present" time (1914) this territorial courts.
judicial power is exercised by (1) For details as to the distributions
the United States District Court, and method of exercise of this juris-
which is the court of original juris- diction, consult Hughes' Federal Pro-
diction or nisi prius court. oedure (3d Ed.), chs. 2, 11 and 21.
(2) The appellate jurisdiction is 1. This jurisdiction is with us
exercised by the Circuit Courts of vested in the United States District
Appeal; and Court, which is a court of record.
(3) The Supreme Court of the
United States.
CIIAP. VI.] COURTS OF SPECIAL JURISDICTION-. 457
CHAPTER VI.
OF COURTS OF A SPECIAL JURISDICTION.
[These courts, whose jurisdiction was private and special, confined to
particular spots or instituted only to redress particul&r injuries, were
the following: (1) Forest courts; (2) the Court of Commissioners of
Sewers; (3) the Court of Policies of Insurance; (4) the Court of Mar-
shalsea and the Palace-Court at Westminster; (5) The courts of the
Principality of Wales; (6) the Court of the Duchy Chamber of Lancaster;
(7) the courts appertaining to the Counties Palatine of Chester, Lancas-
ter, and Durham, and the royal franchise of Ely; (8) the Stannary courts
in DeTonshire and Cornwall; (9) the seyeral courts held within the City
of London, and other cities, ic., by prescription, &c.; and (10) the
Chancellor's courts in the two UniYersHies ; for particulars as to which
se the text, p. 71 et seq.]
458 OF THE COGNIZANCE [BOOK III.
%
CHAPTER VII.
OF THE COGNIZANCE OF PRIVATE WRONGS.
The common law of England * is the one uniform rule to
determine the, jurisdiction of our courts, and if any tribunals
whatsoever attempt to exceed the limits so prescribed them,
the king 's courts of common law may and do prohibit them,
and in some cases punish their judges. [87]
Having premised this general caution, I proceed now to
consider,
I. The wrongs or injuries cognizable by the ecclesiastical
courts. I mean such as are offered to private persons or
individuals which are cognizable by the ecclesiastical court,
not for reformation of the offender himself or party injuring
(pro salute animae? as is the case with immoralities in
general when unconnected with private injuries), but for
the sake of the party injured, to make him a satisfaction
and redress for the damage which he has sustained. [88]
And these I shall reduce under three general heads: of
causes pecuniary, causes matrimonial, and causes testa-
mentary.
1. Pecuniary causes cognizable in the ecclesiastical courts are such as
arise either from the withholding ecclesiastical dues, or the doing or
neglecting some act relating to the church whereby some damage accrues
to the plaintiff, towards obtaining a satisfaction for which he is per-
mitted to institute a suit in the spiritual court [such are the subtraction
or withholding of Hthes from the parson or vicar, the non-payment of
other ecclesiastical dues to the clergy, spoliation, and dilapidation, which
is a kind of ecclesiastical waste].
2. Matrimonial causes, or injuries respecting the rights
of marriage, are another branch of the ecclesiastical juris-
diction. [92]
Of matrimonial causes, one of the first and principal is,
(1) Causa jactitationis matrimoniv' when one of the parties boasts or
gives out that he or she is married to the other, whereby a common
1. As modified by statute. 3. By reason of boasting of mar-
2. For the safety of his soul. riage.
CHAP. VII.] OF PRIVATE WRONGS. 459
reputation of their matrimony may ensue. On this ground the party
injured may libel the other in the spiritual court, and, unless the defend-
ant undertakes and makes out a proof of the actual marriage, he or she
is enjoined perpetual silence upon that head, which is the only remedy
the ecclesiastical courts can give for this injury. (2) Another species
of matrimonial causes was when a party contracted to another brought
a suit in the ecclesiastical court to compel a celebration of the marriage
in pursuance of such contract; but this branch of causes is now cut off
entirely by the act for preventing clandestine marriages, 26 Geo. II. c.
33, which enacts that for the future no suit shall be had in any ecclesias-
tical court to compel a celebration of marriage in facie ecclesiae, for or
because of any contract of matrimony whatsoever. [94] (3) The suit for
restitution of conjugal rights is also another species of matrimonial
causes, which is brought whenever either the husband or wife is guilty
of the injury of subtraction, or lives separate from the other without any
sufficient reason; in which case the ecclesiastical jurisdiction will com-
pel them to come together again if either party be weak enough to de-
sire it, contrary to the inclination of the other.
(4) Divorces also, of which and their several distinctions
we treated at large in a former book, are causes thoroughly
matrimonial, and cognizable by the ecclesiastical judge. 4
If it becomes improper, through some supervenient cause
arising ex post facto, that the parties should live together
any longer, as though intolerable cruelty, adultery, a per-
petual disease, and the like, this unfitness or inability for
the marriage state may be looked upon as an injury to the
suffering party, and for this the ecclesiastical law admin-
isters the remedy of separation, or a divorce a mensa et
thoro. 5 But if the cause existed previous to the marriage,
and was such a one as rendered the marriage unlawful ab
initio, as consanguinity, corporal imbecility, or the like, in
this case the law looks upon the marriage to have been
always null and- void, being contracted in fraudem legis,
and decrees not only a separation from bed and board, but
a vinculo matrimonii 6 itself. (5) The last species of matri-
monial causes is a consequence draw^n from one of the
species of divorce, that a mensa et thoro, which is the suit
4. This jurisdiction is, in the United 5. From bed and board.
States, usually exercised by courts of 6. From the bonds of matrimony,
equitable jurisdiction, such as circuit See Divorce, considered ante.
courts, district courts, etc.
460 OF THE COGNIZANCE [Boox III.
for alimony, a term which signifies maintenance ; which suit
the wife, in case of separation, may have against her hus-
band if he neglects or refuses to make her an allowance
suitable to their station in life. This is an injury to the
wife, and the court Christian will redress it by assigning
her a competent maintenance, and compelling the husband
by ecclesiastical censures to pay it. But no alimony will
be assigned in case of a divorce for adultery on her part;
for as that amounts to a forfeiture of her dower after his
death, it is also a sufficient reason why she should not be
partaker of his estate when living. [95]
3. Testamentary causes are the only remaining species
belonging to the ecclesiastical jurisdiction. 7 This juris-
diction is principally exercised with us in the consistory
courts of every diocesan bishop, t and in the prerogative
court of the metropolitan originally, and in the arches court
and court of delegates by way of appeal. [98] It is divi-
sible into three branches : the probate of wills, the granting
of administrations, and the suing for legacies; the two
former of which, when no opposition is made, are granted
merely ex officio et debito justitiae,* and are then the object
of what is called the voluntary, and not the contentions
jurisdiction. But when a caveat 9 is entered against proving
the will or granting administration, and a suit thereupon
follows to determine either the validity of the testament or
who hath a right to administer, this claim and obstruction
by the adverse party are an injury to the party entitled,
and as such are remedied by the sentence of the spiritual
court, either by establishing the will or granting the admin-
istration. Subtraction, the withholding or detaining of
legacies, is also still more apparently injurious, by depriv-
ing the legatees of that right with which the laws of the
land and the will of the deceased have invested them; and
therefore, as a consequential part of testamentary jurisdic-
tion, the spiritual court administers redress herein by com-
pelling the executor to pay them. But in this last case tlu 1
7. This jurisdiction is, in the United 8. Out of duty and as a debt to
States, usually vested in what are justice,
called probate courts, orphans' courts, 9. Beware,
surrogates' courts, or county courts.
CJIAP. VII. ] OF PRIVATE WRONGS. 461
courts of equity exercise a concurrent jurisdiction with the
ecclesiastical courts as incident to some other species of
relief prayed by the complainant : as to compel the executor
to account for the testator's effects, or assent 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 jurisdictions,
the cause when once brought there receives there also its
full determination.
The proceedings in the ecclesiastical courts are regulated
according to the practice of the civil and canon laws, or
rather according to a mixture of both, corrected and new
modelled by their own particular usages and the inter-
position of the courts of common law. 1 [100] Their ordi-
nary course of proceeding is: first, by citation, to call the
party injuring before them. Then, by libel, libcUns, a little
book, or by articles drawn out in a formal allegation, to set
forth the complainant's ground of complaint. To this suc-
ceeds the defendant's answer upon oath, when, if he denies
or extenuates the charge, they proceed to proofs by wit-
nesses examined, and their depositions taken down in writ-
ing by an officer of the court. If the defendant has any
circumstances to offer in his defence he must also propound
them in what is called his defensive allegation, to which
he is entitled in his turn to the plaintiff's answer upon oath,
and may from hence proceed to proofs as well as his antago-
nist. When all the pleadings and proofs are concluded,
they are referred to the consideration, not of a jury, but of
a single judge, who takes information by hearing advocates
on both sides, and thereupon forms his interlocutory de-
cree or definitive sentence at his own discretion, from
which there generally lies an appeal. 2 [101]
The point in which these jurisdictions are the most defective is that
of enforcing their sentences when pronounced, for which they have no
other process but that of excommunication, which is described to be two-
fold, the less, and the greater excommunication. The less is an ecclesias-
tical censure excluding the party from the participation of the sacra-
ments, the greater proceeds farther, and excludes him not only from
1. See local statutes and books of 2. See local statutes and books of
practice. practice.
462 Or THE COGNIZANCE [BOOK III.
these, but also from the company of all Christians. With us by the
common law an excommunicated person is disabled to do any act that
is required to be done by one that is probus et legalis ftomo.s [102] He
cannot serve upon juries, cannot be a witness in any court, and, which
is the worst of all, cannot bring an action, either real or personal, to
recover lands or money due to him. Nor is this the whole, for if, within
forty days after the sentence has been published in the- church, the
offender does not submit and abide by the sentence of the spiritual court,
the bishop may certify such contempt to the king in Chancery. Upon
which there issues out a writ to the sheriff of the county, called, from
the bishop's certificates, a significavit,* or, from its effects, a writ de
excommunicato capiendo, 6 and the sheriff shall thereupon take the offender
and imprison him in the county gaol till he is reconciled to the church,
and such reconciliation certified by the bishop, under which another writ,
de excommunicato deliberandof issues out of Chancery to deliver and re-
lease him.
II. I am next to consider the injuries cognizable in the court military,
or court of chivalry [103], the jurisdiction of which is declared by statute
13 Ric. II. c. 2, to be this: "that it hath cognizance of contracts touch-
ing deeds of arms or of war out of the realm, and also of things which
touch war within the realm, which cannot be determined or discussed by
the common law, together with other usages and customs to the same
matters appertaining." So that wherever the common law can give re-
dress this court hath no jurisdiction, which has thrown it entirely out of
use as to the matter of contracts, all such being usually cognizable in the
courts of Westminster Hall, if not directly, at least by fiction of law; as
if a contract be made at Gibraltar, the plaintiff may suppose it made at
Northampton; for the locality, or place of making it, is of no consequence
with regard to the validity of the contract.
The words " other usages and customs " support the claim of this
court: 1. To give relief to such of the nobility and gentry as think them-
selves aggrieved in matters of honor, and 2. To keep up the distinction
of degrees and quality. [104] Whence it follows that the civil jurisdic-
tion of this court of chivalry is principally in two points: the redressing
injuries of honor, and correcting encroachments in matters of coat-
armor, precedency, and other distinctions of families. [Obsolete.]
III. Injuries cognizable by the courts maritime, or ad-
miralty courts. 7 [106] These courts have jurisdiction and
power to try and determine all maritime causes, or such
3. Good and lawful man. 7. In the United States this juris-
4. He signified. diction is vested in the district court*
5. For taking one excommunicated. of the United State*.
6. For liberating one excommuni-
cated.
OHAP. VII.] OF PRIVATE WEOXGS. 403
injuries which, though they are in their nature of common
law cognizance, yet, being committed on the high seas, out
of the reach of our ordinary courts of justice, are therefore
to be remedied in a peculiar court of their own. All ad-
miralty causes must be therefore causes arising wholly upon
the sea, and not within the precincts of any country. If
part of any contract or other cause of action doth arise
upon the sea and part upon the land, the common law ex-
cludes the admiralty court from its jurisdiction; 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 acquisitions, which are
earned and become due on the high seas, as seamen's
wages, are one proper object of the admiralty jurisdiction,
even though the contract for them be made upon land, yet,
in general, if there be a contract made in England and to be
executed upon the seas, as a charter-party or covenant
that a ship shall sail to Jamaica, or shall be in such a lati-
tude by such a day; or a contract made upon the sea to be
performed in England, as a bond made on shipboard to pay
money in London or the like, these kinds of mixed con-
tracts belong not to the admiralty jurisdiction, but to the
courts of common law. 8 [107]
And also, as the courts of common law have obtained a
concurrent jurisdiction with the court of chivalry with re-
gard to foreign contracts, by supposing them made in
England, so it is no uncommon thing for a plaintiff to feign
that a contract, really made at sea, was made at the Royal
Exchange, or other inland place, in order to draw the cog-
nizance of the suit from the courts of admiralty to those of
"Westminster Hall.
Where the admiral's court hath not original jurisdiction
of the cause, though there should arise in it a question that
is proper for the cognizance of that court, yet that doth not
alter nor take away the exclusive jurisdiction of the com-
mon law. [108] And so vice versa, if it hath jurisdiction
. of the original, it hath also jurisdiction of all consequen-
8. See, generally. Benedict's Admir-
alty (4th Ed., 1910).
4C4 OF THE COGNIZANCE [BOOK III.
tial questions, though properly determinable at common
law. In case of prizes in time of war between our own
nation and another, which are taken at sea and brought
into our ports, the courts of admiralty have an undis-
turbed and exclusive jurisdiction to determine the same
according to the law of nations. 8 *
The proceedings of the courts of admiralty bear much
resemblance to those of the civil law, 9 but are not entirely
founded thereon, and they likewise adopt and make use of
other laws as occasion requires, such as the Rhodian laws
and the laws of Oleron. The first process in these courts is
frequently by arrest of the defendant's person, and they
also take recognizances or stipulations of certain fidejussors
in the natrue of bail, and in case of default may imprison
both them and their principal. [109] They may also fine
and imprison for a contempt in the face of the court. And
all this is supported by immemorial usage grounded on the
necessity of supporting a jurisdiction so extensive, though
opposite to the usual doctrines of the common law; these
being no courts of record, because in general their process
is much conformed to that of the civil law.
IV. Such injuries as are cognizable by the courts of the
common law. And herein I shall for the present only re-
mark that all possible injuries whatsoever that did not fall
within the exclusive cognizance of either the ecclesiastical,
military [equitable], or maritime tribunals are for that
very reason within the cognizance of the common-law courts
of justice. For it is a settled and invariable principle in
the laws of England that every right when withheld must
have a remedy, and every injury its proper redress. But
before we conclude the present chapter I shall just mention
two species of injuries which will properly fall now within
our immediate consideration, and which are, either when
justice is delayed by an inferior court that has proper cog-
nizance of the cause, or when such inferior court takes upon
itself to examine a cause and decide the merits without a
legal authority.
8a. This jurisdiction, in the United 9. See, general!}', Benedict's Admir-
Staies, is vested in the United States alty (4th Ed.), an excellent work of
District Courts. very moderate size.
CJIAP. VII.] OF PRIVATE WRONGS. 465
1. The first of these injuries, refusal or neglect of justice,
is remedied either by writ of procedendo or of mandamus.
A writ of procedendo ad judicium 1 issues out of the Court
of Chancery, where judges of any subordinate court do
delay the parties, for that they will not give judgment,
either on the one side or the other, when they ought so to
do. In this case a writ of procedendo shall be awarded,
commanding them in the king's name to proceed to judg-
ment, but without specifying any particular judgment, for
that (if erroneous) may be set aside in the course of appeal,
or by writ of error or false judgment; and upon further
neglect or refusal, the judges of the inferior court may be
punished for their contempt, by writ of attachment return-
able in the King's Bench or Common Pleas. [110]
A writ of mandamus is in general a command issuing in
the king's name from the Court of King's Bench, and di-
rected to any person, corporation, or inferior court of judi-
cature within the king's dominions, requiring them to do
some particular thing therein specified which appertains to
their office and duty, and which the Court of King's Bench
has previously determined, or at least supposes, to be con-
sonant to right and justice. It is a high prerogative writ,
of a most extensively remedial nature, and may be issued
in some cases where the injured party has also another more
tedious method of redress, as in the case of admission or
restitution of an office; but it issues in all cases where the
party hath a right to have anything done, and hath no other
specific means of compelling its performance. 2 At present
1. For proceeding to judgment. remedy with which equity has noth-
In Illinois a certified copy of the ing to do. 2 Spelling's Extraor. Relief,
order of the upper court affirming or 1163; Gay v. Gilmore, 76 Gfo. 725.
dismissing an appeal, when filed in This writ is used at the present
the trial court, operates as a proce- day, as at first, to give relief where
dcndo. Smith v. Stevens, 133 111. 183; ordinary legal procedure by reason of
Rev. Stat. 111., ch. 110. sec. 83. See its defects gives none. 2 Spelling,
Tidd's Practice, Procedendo; see Man- 1165. The jurisdiction of courts in
damns. administering this remedy as well as
2. Rex v. Barker. Burr., 1267, per the manner of its employment have
Lord Mansfield: 2 Spelling's Extraor- been greatly modified in many states
dinary Relief, 1363; High's Extraor. by statute. But the well-established
Legal R(m., 1 Tt is strictly a legal rules of the common law governing
30
466 Or THE COGNIZANCE [BooKlII.
we are particularly to remark that it issues to the judges
of any inferior court commanding them to do justice ac-
cording to the powers of their office, whenever the same is
delayed. A mandamus may therefore be had to the courts
of the City of London to enter up judgment, to the spiritual
courts to grant an administration, to swear a churchwar-
den, and the like. [Ill] This writ is grounded on a sug-
gestion, by the oath of the party injured, of his own right
and the denial of justice below, whereupon a rule is made
(except in some general cases, where the probable ground
is manifest) directing the party complained of to show
cause why a writ of mandamus should not issue; and if he
shows no sufficient cause, the writ itself is issued, at first in
the alternative, either to do thus or signify some reason to
the contrary, to which a return or answer must be made at
a certain day. And if the inferior judge, or other person to
whom the writ is directed, returns or signifies an insufficient
reason, then there issues in the second place a peremptory
mandamus to do the thing absolutely, to which no other
return will be admitted but a certificate of perfect obedi-
ence and due execution of the writ. 3 If the inferior judge
or other person makes no return or fails in his respect and
obedience, he is punishable for his contempt by attachment.
But if he at the first returns a sufficient cause, although it
should be false in fact, the Court of King's Bench will not
try the truth of the fact upon affidavits, but will for the
present believe him and proceed no farther on the man-
damus. But then the party injured may have an action
against him for his false return, and (if found to be false by
the jury) shall recover damages equivalent to the injury
the jurisdiction are generally adhered jurisdiction. 2 Spelling's Extraor.
to in all cases where such rules are Relief, 1367.
applicable. Relief will be refused when 3. The practice in this proceeding
no other adequate remedy is provided so far as we have seen it in thio
by law. 2 Spelling's Extraor. Relief, country, very much resembles that at .
1366. In some of the states the common law, though as a rule simpli-
jurisdiction is occasionally exercised fied. See local works on Practice. Sea
by courts of last resort, but usually generally, 2 Spelling's Ex. Rel. titi
by courts of general common law Mandamus; High, Extraor. Legal
Remedies.
CHAP. VII.]
OF PRIVATE WRONGS.
sustained, together with a peremptory mandamus to the de-
fendant to do his duty.
2. A prohibition is a writ issuing properly out of the
Court of King's Bench, being the king's prerogative writ;
but for the furtherance of justice it may now also be had in
some cases out of the Court of Chancery, Common Pleas, or
Exchequer, directed to the judge and parties of a suit in any
inferor court [or tribunal], commanding them to cease from
the prosecution thereof, upon a suggestion that either the
cause originally, or some collateral matter arising therein,
does not belong to that jurisdiction, but to the cognizance
of some other court. 4 [112] And if either the judge or the
party shall proceed after such prohibition, an attachment
may be had against them to punish them for the contempt,
at the discretion of the court that awarded it, and an ac-
tion will lie against them to repair the party injured in
damages. [113]
A short summary of the method of proceeding upon pro-
hibitions 5 is as follows: The party aggrieved in the court
4. It is an extraordinary " writ be-
cause it issues only when the party
seeking is without other adequate
means of redress for the wrong about
to be inflicted by the act of the in-
ferior tribunal. It lies only, however,
where there is about to be an excess
or jurisdiction as to person or sub-
ject-matter or in the enforcement of
rulings in a manner or by means not
intrusted to the judgment or discre-
tion of the acting tribunal. 2 Spell-
ing's Extraor. Rel., 1716 and cases
cited.
5. So far as we have observed there
has been little legislation upon the
subject of prohibition. In Ilinois the
writ of prohibition is governed by
chapter 7 of the Revised Statutes on
Amendments and Jeofails (see ch. 7,
sec. 9), and the plaintiff obtaining
judgment recovers his costs; and
there is, so far as we can find, no
other legislation in Ilinois on the sub-
ject. We apprehend that, in general,
upon making a sufficient prima facie
showing by petition or affidavit, a rule
on the inferior tribunal to show cause
why the writ should not be issued, is
the first step; this rule will, mean-
while, have the effect of a prohibition
until discharged. Upon the hearing
of this -rule the writ of prohibition
will be denied or granted. See, gen-
erally, 2 Spelling's Extraor. Relief,
Part 2, ch. 16, sec. 1757 et seq.; Com.
Dig. tit. Prohibition; Bac. Ab. tit.
Prohibition; 2 Saund. index, tit. Pro-
hibition; and see an excellent illus-
tration of the nature and object of
this proceeding, given by the court in
2 Hen. Bla. 553. Also, consult the
local statutes and books on practice.
In most works on practice, however,
the name of the writ is not even men-
tioned. The student who wishes to
468 OF THE COGNIZANCE [BOOK III.
below applies to the superior court, setting forth in a sug-
gestion upon record the nature and cause of his complaint
in being drawn ad alind cxamen* by a jurisdiction or man-
ner of process disallowed by the laws of the kingdom; upon
which, if the matter alleged appears to the court to be suf-
ficient, the writ of prohibition immediately issues, com-
manding the judge not to hold, and the party not to prose-
cute, the plea. But sometimes the point may be too nice
and doubtful to be decided merely upon a motion, and then,
for the more solemn determination of the question, the
party applying for the prohibition is directed by the court
to declare a prohibition, that is, to prosecute an action by
filing a declaration against the other upon a supposition or
fiction (which is not traversable) that he has proceeded in
the suit below, notwithstanding the writ of prohibition.
And if, upon demurrer and argument, the court shall finally
be of opinion that the matter suggested is a good and
sufficient ground of prohibition in point of law, then judg-
ment with nominal damages shall be given for the party
complaining, and the defendant and also the inferior court
shall be prohibited from proceeding any farther. [114] On
the other hand, if the superior court shall think it no com-
petent ground for restraining the inferior jurisdiction, then
judgment shall be given against him who applied for the
prohibition in the court above, and a writ of consultation
shall be awarded, so called because, upon deliberation
and consultation had, the judges find the prohibition to be
ill-founded, and therefore by this writ they return the
cause to its original jurisdiction, to be there determined in
the inferior court. And even in ordinary cases the writ of
prohibition is not absolutely final and conclusive. For
though the ground be a proper one in point of law for grant-
ing the prohibition, yet if the fact that give rise to it be
afterwards falsified the cause shall be remanded to the
prior jurisdiction.
kr.ow the old practice on this writ is common law precedents aa_ .xactice
referred to 6 Wentworth's Pleading, will be found stated at length,
pp. 242 304 (Dublin, 1799), where the 6. To another examination.
CHAP. VIIL] WRONGS AND REMEDIES. 4GO
CHAPTER VIIL
OF WRONGS AND THEIR REMEDIES, RESPECTING THE EIGHTS OF
PERSONS.
Since all wrongs may be considered as merely a privation
of right, the plain natural remedy for every species of
wrong is the being put in possession of that right whereof
the party injured is deprived. [116] This may either be
effected by a specific delivery or restoration of the subject-
matter in dispute to the legal owner, as when lands or per-
sonal chattels are unjustly withheld or invaded; or, where
that is not a possible, or at least not an adequate remedy,
by making the sufferer a pecuniary satisfaction in damages,
as in case of assault, breach of contract, &c., to which dam-
ages the party injured has acquired an incomplete or in-
choate right the instant he receives the injury, though
such right be not fully ascertained till they are assessed
by the intervention of the law. The instruments whereby
this remedy is obtained are a diversity of suits and actions,
which are defined by the mirror to be " the lawful demand
of one's right; " or, as Bracton and Fleta express it, in the
words of Justinian, jus .persequendi in jtidicio quod alicui
debetur. 1
With us in England the several suits, or remedial instru-
ments of justice, are from the subject of them distinguished
into three kinds: actions, personal, real, and mired. [117]
Personal actions are such whereby a man claims a debt
or personal duty, or damages in lieu thereof; and, likewise,
whereby a man claims a satisfaction in damages for some
injury done to his person or property. The former are said
to be founded on contracts, 2 the latter upon torts 3 or
wrongs. Of the former nature are all actions upon debt
or promises; of the latter all actions for trespass, nuisances,
assaults, defamatory words, and the like.
Real actions 4 (or, as they are called in the mirror, feodal
1. The right of prosecuting in judg- 3. Ex delict o.
ment what is due to every one. 4. Real actions, properly so-called,
2. Ex contractu. are obsolete.
470 WRONGS AND REMEDIES. [BOOK III.
actions), which concern real property only, are such
whereby the plaintiff, here called th'e demandant, claims
title to have any lands or tenements, rents, commons, or
other hereditaments, in fee-simple, fee-tail, or for term of
life. [118] By these actions formerly all disputes con-
cerning real estates were decided; but they are now pretty
generally laid aside in practice, upon account of the great
nicety required in their management, and the inconvenient
length of their process, a much more expeditious method
of trying titles being since introduced by other actions per-
sonal and mixed.
Mixed actions 5 are suits partaking of the nature of the
other two, wherein some real property is demanded, and
also personal damages for a wrong sustained; as, for in-
stance, an action of waste, which is brought by him who
hath the inheritance in remainder or reversion against the
tenant for life who hath committed waste therein, to re-
cover not only the land wasted, which would make it merely
a real action, but also treble damages, in pursuance of the
statute of Gloucester, which is a personal recompense; and
so both, being joined together, denominate it a mixed action.
All civil injuries are of two kinds: the one without force
or violence, as slander or breach of contract; the other
coupled with force and violence, as batteries or false im-
prisonment. And this distinction of private wrongs into
injuries tcith and without force we shall find to run through
all the variety of which we are now to treat. 6 [119] As we
divide all rights into those of persons and those of things,
so we must make the same general distribution of injuries
into such as affect the rights of persons and such as affect
the rights of property.
I. As to injuries which affect the personal security of
individuals, they are either injuries against their lives, their
limbs, their bodies, their health, or their reputations. 7
5. In states where the common law ute, is still retained. This subject
forms of actions have been retained; will be considered further on.
as in Illinois and Michigan, the mixed 6. This distinction still prevails,
action of ejectment, modified by stat- 7. See the following topics more
fully discussed in vol. 2 of this series.
CHAP. VIII.] WRONGS AND REMEDIES. 471
1. Injuries affecting the life of man do not fall under our
present contemplation, 8 being one of the most atrocious
species of crimes, the subject of the next book of our Com-
mentaries.
2, 3. Injuries affecting the limbs or bodies of individuals
may be committed: 1. By threats and menaces of bodily
hurt, through fear of which a man 's business is interrupted.
[120] A menace alone, without a consequent inconven-
ience, makes not the injury; but to complete the wrong
there must be both of them together. The remedy for this
is in pecuniary damages, to be recovered by action of tres-
pass vi et armis, 9 this being an inchoate, though not an ab-
solute violence. 2. By assault, which is an attempt or offer
to beat another without touching him, as if one lifts up
his cane or his fist in a threatening manner at another, or
strikes at him but misses him, this is an assault. 1 This also
is an .inchoate violence, amounting considerably higher
than bare threats; and therefore, though no actual suffering
is proved, yet the party injured may have redress by action
of trespass vi et armis, wherein he shall recover damages
as a compensation for the injury. 3. By battery, which is
the unlawful beating of another. The least touching of
another's person wilfully or in anger is a battery. But
battery is in some cases justifiable or lawful, as where one
who hath authority, a parent or master, gives moderate
correction to his child, his scholar, or his apprentice. So,
also, on the principle of self-defence; for if one strikes me
8. At common law no civil action most, if not all, the states. See Hala
lay for causing the death of a human on Torts, 186-189; Cooley on, Torts
being. Cooley on Torts (Students' (Students' Ed.), 271-288 and cases
Ed.), 270; Hale on Torts, 184. To cited.
remedy this defect of the common law 9. With force and arms,
the British parliament, in 1846, 1. Every assault and assault and
passed an act commonly known as battery are at once both a civil wrong
Lord Campbell's act, giving a remedy and a crime against the state. The
in cases of death caused by wrongful civil wrong is redressed by the action
act, neglect on default in such cass of trespass; the crime is an offence
as would (had death not ensued) against the state and will be consid-
have entitled the party injured to ered in Book 4, where assault and
maintain an action for damages, assault and battery are more fully
Fimilar statutes have been passed in considered.
472 WKONGS AND REMEDIES. [BOOK III.
first, or even only assaults me, I may strike in my own
defence, and if sued for it may plead son assault demesne, 2
or that it was the plaintiff's own original assault that occa-
sioned it. So, likewise, in defence of my goods or posses-
sion, if a man endeavors to deprive me of them I may justify
laying hands upon him to prevent him; and in case he per-
sists with violence, I may proceed to beat him away. [121]
Thus, too, in the exercise of an office, as that of church-
warden or beadle, a man may lay hands upon another to
turn him out of church, and prevent his disturbing the con-
gregation. And if sued for this or the like battery, he may
set forth the whole case, and plead that he laid hands upon
him gently, molliter manus imposuit, for this purpose. On
account of these causes of justification, battery is defined to
be the unlawful beating of another; for which the remedy
is, as for assault, by action of trespass ri et armis, wherein
the jury will give adequate damages. 4. By wounding,
which consists in giving another some dangerous hurt, and
is only an aggravated species of battery. 5. By mayhem,
which is an injury still more atrocious, and consists in vio-
lently depriving another of the use of a member proper for
his defence in fight. This is a battery, attended with this
aggravating circumstance, that thereby the party injured
is forever disabled from making so good a defence against
future external injuries as he otherwise might have done.
Among these defensive members are reckoned not only
arms and legs, but a finger, an eye, and a forQ-tooth, and
also some others. But the loss of one of the jaw-teeth,
the ear, or the nose, is no mayhem at common law, as they
can be of no use in fighting. The same remedial action of
trespass vi et armis lies also to recover damages for this
injury, an injury which (when wilful) no motive can jus-
tify but necessary self-preservation. 3 If the ear be cut off,
2. His own first assault. post, chapter 12, also vol. 2 of this
3. The action of trespass is still in series. In those states where the
force in those states where common common law forms of actions have
l;i\v pleading has been preserved as been abolished by statute, the injury
in Michigan and Illinois. It lies for of trespass still exists as described
tin- r TIIVIM y of damages for a direct in the text, but is redressed by an-
injiiry accompanied- by force. See other form of proceeding. Otherwise,
CHAP. VIIL] WKOXGS AND REMEDIES. 473
treble damages are given by statute 37 Hen. VIII. c. 6 r
though this is not mayhem at common law. And here I
must observe that for these four last injuries, assault, bat-
tery, wounding, and mayhem, an indictment may be brought
as well as an action. 4
4. Injuries affecting a man's health are where, by any
unwholesome practices of another, a man sustains any ap-
parent damage in his vigor or constitution. [122] As by
selling him bad provisions or wine, by the exercise of a
noisome trade, which infects the air in his neighborhood;
or by the neglect or unskilful management of his physician,
surgeon, or apothecary. These are wrongs or injuries un-
accompanied by force, for which there is a remedy in dam-
ages by a special action of trespass upon the case. This
action of trespass, or transgression on the case, is an uni-
versal remedy given for all personal wrongs and injuries
without force, so called because the plaintiff's whole case
or cause of complaint, is set forth at length in the original
writ. For though in general there are methods prescribed
and forms of actions previously settled for redressing those
wrongs which most usually occur, and in which the very
act itself is immediately prejudicial or injurious to the
plaintiff's person or property, as battery, non-payment of
debts, detaining one's goods, or the like, 'yet where any
special consequential damage arises which could not be
foreseen and provided for in the ordinary course of justice r
the party injured is allowed, both by common law and the
statute of Westm. 2, c. 24, to bring a special action on his
own case by a writ formed according to the peculiar cir-
cumstances of his own particular grievance. [123] For
wherever the common law gives a right or prohibits an in-
jury, it also gives a remedy by action, and, therefore,
wherever a new injury is done, a new method of remedy
must be pursued. And it is a settled distinction that where
an act is done which is in itself an immediate injury to an-
other's person or property, there the remedy is usually by
an action of trespass vi et armis; but where there is no act
the same rules of law apply in full 4. See Book 4.
force.
474 \VKOXGS AND REMEDIES. [BOOK TIT.
done, but only a culpable omission, or where the act is not
immediately injurious, but only by consequence and col-
laterally, there no action of trespass vi et armis will lie,
but an action on the special case, for the damages conse-
quent on such omission or act. 5
5. Lastly, injuries affecting a man's reputation or good
name are, first, by malicious, scandalous, and slanderous
words, tending to his damage and derogation. As :f a man
maliciously and falsely utter any slander or false tale of
another, which may either endanger him in law, by im-
peaching him of some heinous crime, as to say that a man
hath poisoned another, or is perjured, or which may exclude
him from society, as to charge him with having an infec-
tious disease, or which may impair or hurt his trade or
livelihood, as to call a tradesman a bankrupt, a physician a
quack, or a lawyer a knave.
Words spoken in derogation of a peer, a judge, or other officer of the
realm, which are called scandalum magnatumf are held to be still more
heinous; and though they be such as would not be actionable in the case
of a common person, yet when spoken in disgrace of such high and re-
spectable characters, they amount to an atrocious injury, which is re-
dressed by an action on the case founded on many ancient statutes, as
well on behalf of the crown to inflict the punishment of imprisonment
on the slanderer, as on behalf of the party to recover damages for the
injury sustained. [124] [Not applicable to this country.]
Words also tending to scandalize a magistrate or person
in a public trust are reputed more highly injurious than
when spoken of a private man. It is said that formerly
no actions were brought for words unless the slander was
such as (if true) would -endanger the life of the object of
it. But it is now held that for scandalous words of the
several species before mentioned (that may endanger a man
by subjecting him to the penalties of the lav;, may exclude
him from society, may impair his trade, or may affect a
peer of the realm, a magistrate, or one in public trust), an
5. This action is still in use in for an indirect injury or one not ac-
Miohigan, Illinois and other states. companied by force. See vol. 2 of
It lies, as stated, to recover damages this series.
6. Gross scandal.
CHAP. VIII.] WRONGS AXD REMEDIES. 475
action on the case be had without proving any particular
damage to have happened, but merely upon the probability
that it might happen. 7 But with regard to words that do
not thus apparently, and upon the face of them, import such
defamation as will of course be injurious, it is necessary
that the plaintiff should aver some particular damage to
have happened which is called laying his action with a per
quod. As if I say that such a clergyman is a bastard, he
cannot for this bring any action against me unless he can
show some special loss by it; in which case he may bring his
action against me for saying he was a bastard, per quod
he lost the presentation to such a living. In like manner to
slander another man's title by spreading such injurious
reports as, if true, would deprive him of his estate (as to call
the issue in tail, or one who hath land by descent, a bas-
tard), is actionable, provided any special damage accrues
to the proprietor thereby, as if he loses an opportunity of
selling the land. But mere scurrility, or opprobrious
words, which neither in themselves import, nor are in fact
attended with any injurious effects, will not support an ac-
tion. So scandals which concern matters merely spiritual,
as to call a man heretic or adulterer, are cognizable only in
the ecclesiastical court, unless any temporal damages en-
7. Slanders are of two sorts: (1) some contagious disease, where, if the
those actionable per se, i. e., by them- charge is true, it would exclude the
selves, without proof of actual dam- party from society. (3) Defamatory
age; and (2) those actionable only words falsely spoken of a person
on alleging and proving special dam- which impute to the party unfitnesa
ages. The case of Pollard v. Lyon, to perform the duties of an office or
91 U. S. 225 (per Clifford, J.), Is employment of profit or the want of
usually cited to sustain this classi- integrity in the discharge of the du-
fication. In that case Mr. Justice ties of such an office or employment.
Clifford, in classifying slanderous (4) Defamatory words falsely spoken
words, used the following language: of a party which prejudice such party
"(1) Words falsely spoken of a per- in his or her profession or trade. (5)
son which impute to the party the Defamatory words falsely spoken of
commission of some criminal offence a person which, though not in them-
involving moral turpitude, for which selves actionable, occasion the party
the party, if the charge is true, may special damage." See, generally,
be indicted and punished. (2) Words Hale on Torts, 298; Cooley on Torts
falsely spoken of a person which im- (Students' Ed.), 200 and cases cited,
pute that the party is infected with
476 WKONGS AND REMEDIES. [BOOK III.
sues, which may be a foundation for a per quod* [125]
Words of heat and passion, as to call a man a rogue and ras-
cal, if productive of no ill consequence, and not of any of
the dangerous species before mentioned, are not actionable;
neither are words spoken in a friendly manner, as by way
of advice, admonition, or concern, without any tincture or
circumstance of ill-will ; for in both these cases they are not
maliciously spoken, 9 which is part of the definition of slan-
der. Neither (as \vas formerly hinted) are any reflecting
w r ords made use of in legal proceedings, and pertinent to
the cause in hand, a sufficient cause of action for slander. 1
Also if the defendant be able to justify and prove the words
to be true, no action will lie, even though special damage
hath ensued, for then it is no slander or false tale.
A second way. of affecting a man's reputation is by
printed or written libels, pictures, signs, and the like, which
set him in an odious or ridiculous light, and thereby dimin-
ish his reputation. With regard to libels in general, there
are, as in many other case, two remedies, one by indictment,
and the other by action. 2 The former for the public of-
fence; for every libel has a tendency to the breach of the
peace, by provoking the person libelled to break it; which
offence is the same (in point of law) whether the matter
contained be true or false; and therefore the defendant, on
an indictment, for publishing a libel, is not allowed to allege
the truth of it by way of justification. [126.] [Unless it
8. By which. made orally. It also embraces all
9. Malice, in a legal sense, means other cases where the additional grav-
that the publication has been made ity imparted to the charge by the
without legal excuse. Cooley on Torts publication can be fairly supposed to
(Students' Ed.), 223. make it damaging. In other words,
1. As to privileged communications any false and malicious writing pub-
as a defence, see, generally, Cooley on lished of another is libelous per se
Torts (Students' Ed.), 224-246; also when its tendency is to render him
vol. 2 of this series, title Torts. contemptible or ridiculous in public
2. See Book 4, Libel. estimation or expose him to public
In libel as well as slander, publi- hatred or contempt or hinder virtuous
cations are actionable per se or only men from associating with him.
actionable on averment and proof of Cooley on Torts (Students' Ed.), 112
special damage. The first class in- ft srq., where the cases are well col-
eludes all cases actionable per se if lected and considered.
CHAP. VIII. ] WKONGS AND REMEDIES. 477
was also made with good motives and for justifiable ends.]
But in the remedy by action on the case which is to repair
the party in damages for the injury done him, the defendant
may, as for words spoken, justify the truth of the facts, and
show that the plaintiff has received no injury at all. 3 What
was said with regard to words spoken will also hold in
every particular with regard to libels by writing or print-
ing, and the civil actions consequent thereupon; but as to
signs or pictures, it seems necessary always to show, by
proper innuendos and averments of the defendant's . mean-
ing, the import and application of the scandal, and that
some special damage has followed, otherwise [i. e. without
the innuendos], it cannot appear that such libel by picture
was understood to be levelled at the plaintiff, or that it was
attended with any actionable consequences. 4
A third way of destroying or injuring a man's reputation
is by preferring malicious indictments or prosecutions
against him. For this, however, the law has given a very
adequate remedy in damages, either by an action of con-
spiracy, which cannot be brought but against two at the
least, 5 or, which is the more usual way, by a special action
on the case for a false and malicious prosecution.
In order to carry on the former (which gives a recompense for the
danger to which the party has been exposed) it is necessary that the
3. The truth of the injurious charge ant in instituting it was malicious,
is, when specially pleaded in justifi- 3. The prosecution has terminated in
cation, a defence to a civil action, the acquittal or discharge of the ac-
Cooley on Torts (Students' Ed.), 221 cused. A conviction of the accused
and cases cited. is conclusive proof of probable cause,
4. See preceding note as to special unless obtained by fraud or unfair
damages. means. Cooley on Torts (Students'
5. When a tort is committed in Ed.), 170, 176. Malice may be in-
pursuance of a conspiracy, all the ferred from want of probable cause,
conspirators are jointly liable. Cooley but if probable cause exists, the ex-
on Torts (Students' Ed.), 85 and istence of malice also is immaterial,
cases cited. Id., 180. Advice of counsel to bring
6. In order to sustain an action for the prosecution, given after a full
a malicious prosecution the following and fair disclosure of all the mate-
circumstances must concur: 1. A rial facts is a defence. Id., 173. See,
suit or procerding without probable generally, Hale on Torts, 349; Coolly
cause. 2. The motive of the defend- on Torts (Students' Ed.), 170.
478 WKONGS AND REMEDIES. [BooK.lTT.
plaintiff should obtain a copy of the record of his indictment and acquit-
tal; but in prosecutions for felony it is usual to deny a copy of the in-
dictment, where there is any, the least probable cause to found such
prosecution upon. For it would be a very great discouragement to the
public justice of the kingdom if prosecutors who had a tolerable ground
of suspicion were liable to be sued at law whenever their indictments
miscarried.
But an action on the case for a malicious prosecution
may be founded upon an indictment whereon no acquittal
can be had, as if it be rejected by the grand jury, or be
coram non judice, or be insufficiently drawn. [127] For
it is not the danger of the plaintiff, but the scandal, vexa-
tion, and expense upon which this action is founded. How-
ever, any probable cause for preferring it is sufficient to
justify the defendant.
II. We are next to consider the violation of the right
of personal liberty. This is effected by the injury of false
imprisonment.
To constitute the injury of false imprisonment there are
two points requisite: 1. The detention of the person; 7 and
2. The unlawfulnes of such detention. Every confinement
of the person is an imprisonment, whether it be-in a com-
mon prison, or in a private house, or in the stocks, or even
by forcibly detaining one in the public "streets. Unlawful,
or false, imprisonment consists in such confinement or de-
tention without sufficient authority, which authority may
arise either from some process from the courts of justice,
or from some warrant from a legal officer having power to
commit, under his hand and seal, and expressing the cause
of such commitment; or from some other special cause war-
ranted, for the necessity of the thing, either by common
law or act of parliament; such as the arresting of a felon
by a private person without warrant, the impressing of
mariners for the public service, or the apprehending of
wagoners for misbehavior in the public highways. 8 False
7. Prima facie any restraint put by legal imprisonment. The person need
icur or force upon the actions of an- not be touched. Cooley on Torts
-other is unlawful and constitutes a (Students' Ed.), 158.
false imprisonment, unless a showing 8. Restraint by those standing in
of justification makes it a true or loco parentis is often lawful with-
CJIAP. VIII. ] WRONGS AND REMEDIES. 479
imprisonment also may arise by executing a lawful warrant
or process at an unlawful time, as on a Sunday; for the
statute hath declared that such service or process shall be
void. [128] This is the injury. The remedy is of two
sorts : the" one removing the injury, the other making satisfac-
tion for it.
The means of removing the actual injury of false imprison-
ment are fourfold. 1. By writ of mainprize. 2. By writ
de odio et atiq. 3. By writ de homine replegiando. 4. By
writ of habeas corpus.
1. The writ of mainprize, manucaptio, is a writ directed to the sheriff
(either generally, when any man is imprisoned for a bailable offence,
and bail hath been refused, or specially, when the offence or cause of
commitment is not properly bailable below), commanding him to take
sureties -for the prisoner's appearance, usually called mainpernors, aud
to set him at large. Mainpernors differ from bail in that a man's bail
may imprison or surrender him up before the stipulated day of appear-
ance; mainpernors can do neither, but are barely sureties for his ap-
pearance at the day. Bail are only sureties that the party be answer-
able for the special matter for which they stipulate; mainpernors are
bound to produce him to answer all charges whatsoever.
2. The writ de odio et atia was anciently used to be directed to the
sheriff, commanding him to inquire whether a prisoner charged with
murder was committed upon just cause of suspicion, or merely propter
odium et atiam, for hatred and ill-will; and if upon the inquisition due
cause of suspicion did not appear, then there issued another writ for the
sheriff to admit him to bail.
3. The writ de homine replegiando lies to replevy a man out of prison,
or out of the custody of any private person (in the same manner that
chattels taken in distress may be replevied), upon giving security to the
sheriff that the man shall be forthcoming to answer any charge against
him. [129]
The incapacity of these three remedies to give complete
relief in every case hath almost entirely antiquated them,
and hath caused a general recourse to be had, in behalf of
persons aggrieved by illegal imprisonment, to
4. The writ of habeas corpus, 9 the most celebrated writ
in the English law. Of this there are various kinds made
out legal process; so, also, in cases Torts (Students' Ed.), 159, 165.
of the dangerous insane or other 9. Have the body,
like case of necessity. Cooky on
480 WRONGS AND REMEDIES. [BOOK III.
use of by the courts at Westminster for removing prisoners
from one court into another for the more easy administra-
tion of justice.
Such is the habeas corpus ad rcspondendiim, 1 when a man hath a
cause of action against one who is confined by the process of some in-
ferior court, in order to remove the prisoner and charge him with this
new action in the court above. Such is that ad satisfaciendum, when a
prisoner hath had judgment against him in an action and the plaintiff
ie desirous to bring him up to some superior court to charge him with
process of execution. [130] Such also are those ad pro'sequendum, testi-
ficandum, deliberandum, 2 etc., which issue when it is necessary to remove
a prisoner, in order to prosecute or bear testimony in any court, or to be
tried in the proper jurisdiction wherein the act was committed. Such
is, lastly, the common writ ad faciendum et recipiendum, 3 which issues
out of any of the courts of Westminster Hall when a person is sued in
some inferior jurisdiction and is desirous to remove the action into the
superior court, commanding the inferior judges to produce the body of
the defendant, together with the day and cause of his caption and de-
tainer (whence the writ is frequently denominated an habeas corpus cum
causa) 4 to do and receive whatsoever the king's court shall consider in
that behalf. This is a writ grantable of common right, without any mo-
tion in court, and it instantly supersedes all proceedings in th,e court
below.
But the great and efficacious writ, in all manner of illegal
confinement, is that of habeas corpus ad subjiciendum, di-
rected to the person detaining another, and commanding
him to produce the body of the prisoner, with the day and
cause of his caption and detention, ad faciendum, subjicien-
dum, et recipiendum, to do, submit to, and receive whatsoever
the judge or court awarding such writ shall consider in
that behalf. [131] This is a high prerogative writ, and
therefore by the common law issuing out of the Court of
King's Bench [it also by statute issued out of the Courts
of Common Pleas and Exchequer; it might also be issued by
the Lord Chancellor in vacation] not only in term time, but
also during the vacation, by a fiat 5 from the Chief Justice
or any other of the judges, and running into all parts of
1. Have the body to respond. 3. To do and receive.
2. To prosecute, testify, deliberate, 4. Have the body with the cause,
etc. 5. Order.
CHAP. VIII.] WEONGS AXD REMEDIES. 431
the king's dominions. If it issues in vacation, it is usually
returnable before the judge himself who awarded it, and
lie proceeds by himself thereon, unless the term shall inter-
vene, and then it may be returned in court.
In the King's Bench and Common Pleas it is necessary
to apply for it by motion to the court, as in the case of all
other prerogative writs (certiorari, prohibition, mandamus,
&c.), which do not issue as of mere course, without showing
some probable cause why the extraordinary power of the
Crown is called in to the party's assistance. [132] On
the other hand, if a probable ground be shown that the
party is imprisoned without just cause, and therefore hath
a right to be delivered, 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 committed, or detained in
prison, or otherwise restrained, though it be by the com-
mand of the king, the privy council, or any other." [133]
Early in the reign of Charles I. the Court of King's Bench, relying on
some arbitrary precedents (and those perhaps misunderstood) deter-
mined that they could not upon an habeas corpus either bail or deliver a
prisoner, though committed without any cause assignad, in case he was
committed by the special command of the king or by the lords of the
privy council. [134]
This drew on a parliamentary inquiry, and produced the
petition of right, 3 Car. I., which recites this illegal judg-
ment, and enacts that no freeman hereafter shall be so im-
prisoned or detained.
But when, in the following year, Mr. Selden and others were committed
ty the lords of the council, in pursuance of his Majesty's special com-
mand, under a general charge of " notable contempts and stirring up
sedition against the king and government," the judges delayed for two
terms (including also the long vacation) to deliver an opinion how far
such a charge was bailable. And when at length they agreed that it was.
they however annexed a condition of finding sureties for the good be-
havior, which still protracted their imprisonment, the chief justice, Sir
Nicholas Hyde, at the same time declaring that " if they were again re-
| manded for that cause, perhaps the court would not afterwards grant a
habeas corpus, being already made acquainted with the cause of the im-
prisonment."
31
-
482 WRONGS AND REMEDIES. [BOOK III.
These pitiful evasions gave rise to the statute 16 Car. I.
c. 10, 8, whereby it is enacted that if any person be com-
mitted by the king himself in person, or by his privy coun-
cil, or by any of the members thereof, he shall have granted
unto him, without any delay upon any pretence whatsoever,
a writ of habeas corpus, upon demand or motion made to
the Court of King's Bench or Common Pleas, who shall
thereupon, within three court days after the return is made,
examine and determine the legality of such commitment,
and do what to justice shall appertain, in delivering, bail-
ing, or remanding such prisoner. [135]
Yet still in the case of Jenks, who in 1676 was committed by the king
in council for a turbulent speech at Guildhall, new shifts and devices
were made use of to prevent his enlargement by law, the Chief Justice
(as well as the Chancellor) declining to award a writ of habeas corpus
ad subjiciendum in vacation, though at last he thought proper to award
the usual writs ad deliberandum, etc., whereby the prisoner was dis-
charged at the Old Bailey. Other abuses had also crept into daily prac-
tice, which had in some measure defeated the benefit of this great con-
stitutional remedy. The party imprisoning was at liberty to delay his
obedience to the first writ, and might wait till a second and a third,
called an alias an4 a pluries, were issued before he produced the party,
and many other vexatious shifts were practised to detain state-prisoners
in custody.
The oppression of an obscure individual in this instance
gave birth to the famous habeas corpus act, 31 Car. II. c. 2,
which is frequently considered as another Magna Carta of
the kingdom. The statute itself enacts: 1. That on com-
plaint and request in writing, by or on behalf of any person
committed and charged with any crime (unless committed
for treason or felony expressed in the warrant, or as acces-
sory, or on suspicion of being accessory before the fact to
any petit-treason or felony, or upon suspicion of such petit-
treason or felony, plainly expressed in the warrant, or unless
he is convicted or charged in execution by legal process),
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, shall (unless the party has neglected for two terms
to apply to any court for his enlargement) award a habeas
CHAP. VIII. ] WBONGS AND REMEDIES. : 483
corpus for such prisoner, returnable immediately before him-
self or any other of the judges; and upon the return made
shall discharge the party, if bailable, upon giving security
to appear and answer to the accusation in the proper court
of judicature. [136] 2. That such writs shall be indorsed,
as granted in pursuance of this act, and signed by the person
awarding them. 3. That the writ shall be returned and the
prisoner brought up within a limited time according to the
distance, not exceeding in any case twenty days. 4. That
officers and keepers neglecting to make due returns, or not
delivering to the prisoner or his agent within six hours after
demand a copy of the warrant of commitment, or shifting the
custody of a prisoner from one to another without sufficient
reason or authority (specified in the act), shall for the first
offence forfeit 1007. and for the second offence 2007. to the
party grieved, and be disabled to hold his office. That no
person once delivered by habeas corpus shall be recommitted
for the same offence on penalty of 5007. 6. That every per-
son committed for treason or felony shall, if he requires it the
first week of the next term, or the first day of the next session
of oyer and terminer, be indicted in that term or session,
or else admitted to bail, unless the king's witnesses cannot
be produced at that time, and, if acquitted, or if not indicted
and tried in the second term or session, he shall be dis-
charged from his imprisonment for such imputed offence;
but that no person, after the assizes shall be open for the
county in which he is detained, shall be removed by habeas
corpus till after the assizes are ended, but shall be left to
the justice of the judges of assize. [137] 7. That any such
prisoner 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 same, on sight of the warrant or oath that the
same is refused, forfeit severally to the party grieved the
sum of 5007. 8. That this writ of habeas corpus shall run
into the counties palatine, cinque ports, and other privileged
places, and the islands of Jersey and Guernsey. 9. That no
inhabitant of England (except persons contracting, or con-
victs praying, to be transported, or having committed some
484 WRONGS AND REMEDIES. [BOOK III.
capital offense in the place to which they are sent) shall be
sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any
places beyond the seas, within or without the king's do-
minions, on pain that the party committing, his advisers,
aiders, and assistants, shall forfeit to the party aggrieved
a sum not less than 500/., to be recovered with treble costs,
shall be disabled to bear any office of trust or profit, shall
incur the penalties of praemunire, and shall be incapable of
the king's pardon.
This is the substance of that great and important statute,
which extends only to the case of commitments for such
criminal charge as can produce no inconvenience to public
justice by a temporary enlargement of the prisoner, all
other cases of unjust imprisonment being left to the habeas
corpus at common law. But even upon writs at the com-
mon law it is now expected by the court, agreeable to ancient
precedents and the spirit of the act of parliament, that the
writ should be immediately obeyed, without waiting for any
alias or pluries, otherwise an attachment will issue. 6
The satisfactory remedy for this injury of false impris-
ment is by an action of trespass vi et armis, usually called
6. By statutes in all the states the to try rights of property, etc., nor
benefit of this writ is secured to every can it take the place of quo icarranto.
person illegally deprived of his lib- Id., 1152.
erty, whether by process or order of In the absence of statutory provi-
court or other tribunal or in any other sion, a refusal to discharge, except
manner whatsoever. The courts by in the case of the custody of children,
which the writ may be issued and the does not bar the issuance of a second
manner of obtaining the writ are pre- writ by another court or officer. 2
scribed by constitution and statutes Spelling Extra. Relief, 1197, 1198
in pursuance thereof and its issuance and cases cited.
when a proper showing lias been made For practical purposes the petition
is enforced by severe penalties. Con- is treated as a complaint or declara-
Biilt local state constitutions and tion and the return as an answer
statutes. in an ordinary action. Id., 1317.
In cases arising iinder the federal The writ is served, unless othcr\\ i- >
jurisdiction the writ may be issued provided by statute, by delivering it
by a United States court or judge, to the person charged with the illegal
SOP 2 Spelling Extra. Relief, 11G2- restraint who makes return thereof
1183. with the person detained. As to the
Tlio writ cannot be employed as a requisites of the return, see 2 Spell-
substitute for appeal or writ of error, ing Extra. Relief, 1322.
CHAP. VIII.] WRONGS AND REMEDIES. 485
an action of false imprisonment, which is generally and
almost unavoidably accompanied with a charge of assault
and battery also. [138J
III. With regard to the third absolute right of individuals, or that of
private property, though the enjoyment of it when acquired is strictly a
personal right, yet, as its nature and original and the means of its ac-
quisition or loss fell more directly under our second general division of
the rights of things, and as, of course, the wrongs that affect these rights
must be referred to the corresponding division in the present book of our
Commentaries, I conceive it will be more commodious and easy to con-
sider together, rather than in a separate view, the injuries that may be
offered to the enjoyment as well as to the rights of property. And there-
fore f shall here conclude the head of injuries affecting the absolute
rights of individuals.
We are next to contemplate those which affect their
relative rights, and, in particular, such injuries as may be
done to persons under the four following relations: hus-
band and wife, parent and child, guardian and ward, mas-
ter and servant.
I. Injuries that may be offered to a person considered
as a husband are principally three: abduction, or taking
away a man's wife; adultery, or criminal conversation
with her; and beating, or otherwise abusing her. [139]
1. As to the first sort, abduction, or taking her away, this
may either be by fraud and persuasion or open violence,
though the law in both cases supposes force and constraint,
the wife having no power to consent, and therefore gives
a remedy by writ of ravishment, or action of trespass vi
et armis, de uxore rapta ct abducta. 7 And the husband is
also entitled to recover damages in an action on the case
against such as persuade and entice the wife to live sepa-
rate from him without a sufficient cause. 8 2. Adultery,
7. Trespass by force and arms for in favor of her husband to recover for
a wife ravished and abducted. the loss of his wife's services, society,
8. A personal injury to the wife etc., and for expenses, if any, incurred,
gives rise to two causes of action, one Cooley on Torts (Students' Ed.), 254,
in favor of the wife for the personal where the cases are fully collected,
injury to herself where she has a Where she is enticed away, the ground
right to her earnings, etc., and one of action is the loss of her services,
486 WROXGS AND REMEDIES. [BOOK III.
or criminal conversation with a man's wife, though it is
as a public crime left by our laws to the coercion of the
spiritual courts, yet, considered as a civil injury, the law
gives a satisfaction to the husband for it by action of tres-
pass vi et armis against the adulterer, wherein the dam-
ages recovered are usually very large and exemplary. 9
But these are properly increased and diminished by cir-
cumstances, as the rank and fortune of the plaintiff and
defendant, the relation or connection between them, the
seduction or otherwise of the wife, founded on her pre-
vious behavior and character, and the husband's obliga-
tion of settlement or otherwise to provide for those chil-
dren which he cannot but suspect to be spurious. [140]
In this case, and upon indictments for polygamy, a mar-
riage in fact must be proved, though generally in other
cases reputation and cohabitation are sufficient evidence of
marriage. 3. The third injury is that of beating a man's
wife, or otherwise ill-using her, for which, if it be a com-
mon assault, battery, or imprisonment, the law gives the
usual remedy to recover damages by action of trespass vi
et armis, which must be brought in the names of the hus-
band and wife jointly; but if the beating or other maltreat-
ment be very enormous, so that thereby the husband is
deprived for any time of the company and assistance of his
wife, the law then gives him a separate remedy by an action
of trespass in nature of an action upon the case for this ill-
usage, per quod consortium amisit, 1 in which he shall recover
a satisfaction in damages.
II. Injuries that may be offered to a person considered
in the relation of a parent were likewise of two kinds:
1. Abduction, or taking his children away; and 2. Marrying
his son and heir without the father's consent, whereby dur-
ing the continuance of the military tenure he lost the value
of his marriage. [Obsolete.] As to the injury of abduc-
society, etc. Ib. And now the tend- such an action was held to lie at the
cncy of authority favors giving the suit of the wife against her mother-
wife a right of action against one who in-law for the enticement of her liua-
alii'iiates from her her husband's af- band. See Cooley on Torts, 25S.
fections. Id., 257 and numerous cases 9. See note 2 above,
in the note: Hale on Torts, 277, 278. 1. By which he lost the society.
In Hilling v. Hilling, 32 111. App. 519,
CHAP. VIII.] WRONGS AND REMEDIES. 487
tion, or taking away the children from the father, that is
#lso 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 action would lie for taking and carry-
ing away any othe x r child besides the heir, some holding
that it would not, upon the supposition that the only ground
or cause of action was losing the value of the heir's mar-
riage, and others holding that an action would lie for taking
away any of the children, for that the parent hath an interest
m them all to provide for their education. If, therefore,
before the abolition of these tenures it was an injury to
the father to take away the rest of his children as well as
his heir (as I am inclined to think -it was), it still remains
an injury, and is remediable by writ of ravishment, or action
of trespass vi et armis, de filio, vel filia, rapto vel abducto?
in the same manner as the husband may have it on account
of the abduction of his wife. 3 [141]
III. Of a similar nature to the last is the relation of
guardian and ward, and the like actions, mutatis mutandis, 4
as are given to fathers, the guardian also has for recovery
of damages, when his ward is stolen or ravished away from
him. 5 But a more speedy and summary method of redress-
ing all complaints relative to wards arid guardians hath of
late obtained by an application to the Court of Chancery,
which is the supreme guardian, and has the superintendent
jurisdiction of all the infants in the kingdom. And it is
expressly provided by statute 12 Car. II. c. 24, that testa-
mentary guardians may mantain an action of ravishment or
trespass for recovery of any of their wards, and also for
damages to be applied to the use and benefit of the infants.
IV. To the relation between master and servant, and the
rights accruing therefrom, there are two species of injuries
incident. The one is, retaining a man's hired servant be-
fore his time is expired; the other is beating or confining
him in such a manner that he is not able to perform his
2. Trespass by force and arms for namely, loss of service. See Cooley
son or daughter ravished or abducted, on Torts (Students' Ed.), 258-264.
3. The ground of this action is the 4. The terms being changed,
same as in the case of the wife, 5. Cooley on Torts Students' Ed.},
264.
488 \VRONGS AND REMEDIES. [BOOK III.
work. As to the first, the retaining another person's ser-
vant during the time he has agreed to serve his present
master, this is an illegal act. [142] For every master has
by his contract purchased for a valuable consideration the
service of his domestics for a limited time: the inveigling
or hiring his servant, which induces a breach of this con-
tract, is therefore an injury to the master; and for that
injury the law has given him a remedy by a special action
on the case, and he may also have an action against the
servant for the non-performance of his agreement. But if
the new master was not apprized of the former contract, no-
action lies against him, unless he refuses to restore the ser-
vant upon demand. The other point of injury is that of
beating, confining, or disabling a man's servant, which de-
pends upon the same principle as the last, viz., the property
which the master has by his contract acquired in the labor
of the servant. In this case, besides the remedy of an ac-
tion of battery or imprisonment, which the servant himself
as an individual may have against the aggressor, the mas-
ter also, as a recompense for his immediate loss, may main-
tain an action of trespass vie et armis, in which he must
allege and prove the special damage he has sustained by
the beating of his servant, per quod sernitium amisit. 6
The wife cannot recover damages for beating her hus-
band, for she hath no separate interest in anything during
her coverture. 7 [143] The child hath no property in his
father or guardian, as they have in him, for the sake of
giving him education and nurture. 8 And so the servant,
whose master is disabled, does not thereby lose his main-
tenance or wages. He had no property in his master; and
if he receives his part of the stipulated contract, he suffers
no injury, and is therefore entitled to no action for any
battery or imprisonment which such master may happen
to endure.
6. By which he lost his services. number of cases are cited by the abov&,
Cooky on Torts (Students' Ed.), 270. authors in the notes.
7. See, however, Cooley on Torts ' 8. See Cooley on Torts (Students'
(Students' Ed.), 257 and note; Hale Ed ) , 264. This rule has been changed
on Torts, 277, 278 and note. A large by statute in some cases. Consult
local statutes.
CHAP. IX.] OF INJURIES TO PERSONAL PROPERTY. 489
CHAPTER IX.
OF INJURIES TO PERSONAL PROPERTY.
I. The rights of personal property in possession are liable
to two species of injuries, the amotion or deprivation of
that possession, and the abuse or damage of the chattels,
while the possession continues in the legal owner. [144]
The former, or deprivation of possession, is also divisible
into two branches: the unjust and unlawful taking them
away, and the unjust detaining them, though the original
taking might be lawful.
1. And first of an unlawful taking. [145] The remedy
for the wrongful taking of goods is, in the first place, the
restitution of the goods themselves so wrongfully taken,
with damages for the loss sustained by such unjust inva-
sion, which is effected by action of replevin. [See Action
of Detinue, post.] This obtains only in one instance cf. an
unlawful taking, that of a wrongful distress; and this and
the action of detinue are almost the only actions in which
the actual specific possession of the identical personal chat-
tel is restored to the proper owner.
An action of replevin is founded upon a distress taken
wrongfully and without sufficient cause, being a re-delivery
of the pledge, or thing taken in distress, -to the owner, upon
his giving security to try the right of the distress, and to
restore it if the right be adjudged against him, after which
the distrainor may keep it till tender made of sufficient
amends, but must then re-deliver it to the owner. 1 [146]
1. The action of replevin has been The procedure has also been very
retained in some of the states but its much simplified by statute. In all
scope has been very much increased the states the right to recover goods
by statute so that it lies for the re- and chattels under the circumstances
coverv not only of goods and chattels above stated, has, of course, been pre-
unlawfully distrained, but for the re- served by appropriate legal proceed-
covery of goods and chattels unlaw- ings (claim and delivery, etc.), not
fully taken or detained in any other called replevin, though, in substance,
Avay, so that it now covers in scope the same. Consult the local statutes
tiot only the original action of re- and books on practice,
pkvin but the. action of detinue also.
490 OF INJURIES TO PERSONAL PROPERTY. [Booic IIT.
And formerly, when the party distrained upon intended to dispute
the right of the distress, he had no other process by the old common law
than by a writ of replevin, replegiari facias, which issued out of Chancery,
commanding the sheriff to deliver the distress to the owner, and after-
wards to do justice in respect of the matter in dispute in his own county
court. [147] But this being a tedious method of proceeding, the beasts
or other goods were long detained from the owner, to his great loss and
damage.
For which reason the statute of Marlbridge directs that
(without suing a writ out of the Chancery) the sheriff, im-
mediately upon plaint to him made, shall proceed to rep^evy
the goods. Upon application, therefore, either to the
sheriff or one of his deputies, security is to be given in pur-
suance of the statute of Westm. 2, 13 Edw. I. c. 2. 1. That
the party replevying will pursue his action against the dis-
trainor, for which purpose he puts in plegios de prosequendo,
or pledges to prosecute; and, 2. That if the right be deter-
mined against him, he will return the distress again, for
which purpose he is also bound to find plcgios de retorno
habcndo. 2 Besides' these pledges, the sufficiency of which
is discretionary and at the peril of the sheriff, the statute
11 Geo. II. c. 19, requires that the officer granting a replevin
on a distress for rent shall take a bond with two sureties in
a sum of double the value of the goods distrained, condi-
tioned to prosecute the suit with effect and without delay,,
and for return of the goods; which bond shall be assigned
to the avowant or person making cognizance, on request
made to the officer, and, if forfeited, may be sued in the
name of the assignee. The sheriff, on receiving such se-
curity, is immediately, by his officers, to cause the chattels
taken in distress to be restored into the possession of the
party distrained upon, unless the distrainor claims a prop-
erty in the goods so taken. For if by this method of dis-
tress the distrainor happens to come again into possession
of his own property in goods which before he had lost, the
law allows him to keep them, without any reference to the
manner by which he thus has gained possession, being a
kind of personal remitter. [148] If, therefore, the dis-
2. Pledges to make^return.
CHAP. IX.] OF INJURIES TO PERSONAL PROPERTY. 491
trainor claims any such property, the party replvying must
sue out a writ de proprietate probanda? in which the sheriff
is to try, by an inquest, in whom the property previous to
the* distress subsisted. And if it be found to be in the dis-
trainor, the sheriff can proceed no farther, but must return
the claim of property to the Court of King's Bench or
Common Pleas, to be there further prosecuted, if thought
advisable, and there finally determined.
But if no claim. of property be put in, or if (upon trial)
the sheriff s s inquest determines it against the distrainor,
then the sheriff is to replevy the goods (making use of even
force, if the distrainor makes resistance), in case the goods
be found within his county. But if the distress be carried
out of the county, or concealed, then the sheriff may return
that the goods, or beasts, are eloigned, elongata, carried to
a distance, to places to him unknown; and thereupon the
party replevying shall have a writ of capias in withernam,
in vetito (or, more properly, repetito) namio, a term which
signifies a second or reciprocal distress, in lieu of the first,
which was eloigned. It is therefore a command to the
sheriff to take other goods of the distrainor, in lieu of the
distress formerly taken, and eloigned, or withheld from the
owner. So that here is now distress against distress, one
being taken to answer the other by way of reprisal. For
which reason goods taken in withernam cannot be replevied
till the original distress is forthcoming.
But in common cases the goods are delivered back to the
party replevying, who is then bound to bring his action
of replevin, which may be prosecuted in the county court,
be the distress of what value it may. [149] But either
party may remove it to the superior courts of King's Bench
or Common Pleas by writ of recordari or pone, the plaintiff
at pleasure, the defendant upon reasonable cause; and also,
if in the course of proceeding any right of freehold comes
in question, the sheriff can proceed no farther, so that it is
usual to carry it up in the first instance to the courts of
Westminster Hall. Upon this action brought, and declara-
tion delivered, the distrainor, w r ho is now the defendant,
3. For the proof of the property.
492 OF INJURIES TO PERSONAL PROPERTY. [BOOK I IT.
makes avowry; that is, he avows taking the distress in his
own right, or the right of his wife, and sets forth the reason
of it, as for rent arrere, damage done, or other cause; or
else, if he justifies in another's right as his bailiff or ser-
vant, he is said to make cognizance, that is, he acknoirlcdfjc*
the taking, but insists that such taking was legal, as he
acted by the command of one who had a right to distrain,
and on the truth and legal merits of this avowry or cogniz-
ance the cause is determined. If it be determined for the
plaintiff, viz., that the distress was wrongfully taken, he
has already got his goods back into his own possession, and
shall keep them, and moreover recover damages. But if
the defendant prevails, by the default or nonsuit of the
plaintiff, then he shall have a writ de retorno habendo, 4
whereby the goods or chattels (which were distrained and
then replevied) are returned again into his custody, to be
sold or otherwise disposed of as if no replevin hath been
made. And at the common law the plaintiff might have
brought another replevin, and so in infinitum, to the intol-
erable vexation of the defendant. Wherefore the statute
of Westm. 2, c. 2, restrains the plaintiff, when nonsuited,
from suing out any fresh replevin, but allows him a judicial
writ, issuing out of the original record, and called a writ
of second deliverance, in order to have the same distress
again delivered to him on giving the like security as before.
[150] And if the plaintiff be a second time nonsuit, or if
the defendant has judgment upon verdict or demurrer in
the first replevin, he shall have a writ of return irreplevis-
able, after which no writ of second deliverance shall be
allowed. But in case of a distress for rent arrere, ther writ
of second deliverance is in effect taken away by statute
17 Car. II. c. 7,
Which directs that, if the plaintiff be nonsuit before issue joined, then
upon suggestion made on the record in nature of an avowry or cogniz-
ance; or if judgment be given against him on demurrer, then, without any
such suggestion, the defendant may have a writ to inquire into the value
of the distress by a jury, and shall recover the amount of it in damages,
if less than the arrear of rent: or if more, then so much as shall be equal
4. For having return.
CHAP. IX.] OF INJURIES TO PERSONAL PROPERTY. 493
to such arrear, with costs; or, if the nonsuit be after issue joined, or if
a verdict be against the plaintiff, then the jury impanelled to try the
cause shall assess such arrears for the defendant; and if (in any of
these cases) the distress be insufficient to answer the arrears distrained
for, the defendant may take a further distress or distresses. But other-
wise, if, pending a replevin for a former distress, a man distrains again
for the same rent or service, then the party is not driven to his action
of replevin, but shall have a writ of recaption, and recover damages for
the defendant the re-distrainor's contempt of the process of the law.
In like manner other remedies for other unlawful takings
of a man's goods consist only in recovering a satisfaction
in damages. And if a man takes the goods of another out
of his actual or virtual possession, without having a lawful
title so to do, it is an injury, which, though it doth not
amount to felony unless it be done ammo furandi* is never-
theless a transgression for which an action of trespass vi et
armis will lie, wherein the plaintiff shall not recover the
thing itself, but only damages for the loss of it. 6 [151] Or,
if committed without force, the party may, at his choice,
have another remedy in damages by action of trover and
conversion, of which I shall presently say more.
2. Deprivation of possession may also be by an unjust
detainer of another's goods, though the original taking was
lawful. 7 As if I distrain another's cattle damage-feasant,
and before they are impounded he tenders me sufficient
amends; now, though the original taking was lawful, my
subsequent detainment of them after tender of amends is
wrongful, and he shall have an action of replevin against
me to recover them; in which he shall recover damages only
for the detention and not for the caption,, because the orig-
inal taking was lawful. Or if I lend a man a horse, and he
afterwards refuse to restore it, this injury consists in the
detaining, and not in the original taking, and the regular
5. With the intention of stealing. lawfully taken, but also for goods un-
6. In such a case the plaintiff has lawfully detained. See, generally, 1
liis election to sue in replevin, tres- Bouvier Law Diet., title Detinue,
pass or trover. That the action has been used in this
7. In the United States the action country (though now obsolete), see
of detinvie is obsolete, and by statute the American cases cited by Mr. Boii-
rcplevin lies not only for goods un- vier.
49-1 OF INJURIES TO PERSONAL PROPERTY. [BOOK III.
method for me to recover possession is by action of detinue.
In this action of detinue it is necessary to ascertain the
thing detained, in such manner as that it may be specifically
known and recovered. Therefore it cannot be brought for
money, corn, or the like; for that cannot be known from
other money or corn, unless it be in a bag or a sack, for
then it may be distinguishably marked. In order, there-
fore, to ground an action of detinue, which is only for the
detaining, these points are necessary: 1. That the defend-
ant came lawfully into possession of the goods, as either by
delivery to him or finding them; 2. That the plaintiff have
a property; 3. That the goods themselves be of some value;
and 4. That they be ascertained in point of identity. [5.
That they are unlawfully detained.] Upon this the jury, if
they find for the plaintiff, assess the respective values of
the several parcels detained, and also damages for the de-
tention. And the judgment is conditional that the plaintiff
recover the said goods, or (if they cannot be had) their
respective values, and also the damages for detaining them.
But there is one disadvantage Which attends this action:
viz., that the defendant is herein permitted to wage his
law, that is, to exculpate himself by oath, and thereby de-
feat the plaintiff of his remedy. 8 [152]
The action of trover and conversion was in its original
an action of trespass upon the case for recovery of damages
against such person as had found another's goods and re-
fused to deliver them on demand, but converted them to his
own use; from which finding and converting it is called an
action of trover and conversion. The freedom of this action
8. When in an action of debt on a Wager of law applied only to ac-
simple contract the defendant pleaded tions of debt on simple contract and
nil dcbet and concluded his plea with to actions of detinue. Wager of law
this formula: "And this he is ready is now obsolete in the United States.
to defend against him the said A B If it still existed and there were no
and his suit, as the court of our lord, concurrent remedies, there would be
the king, here shall consider," etc., no general need of a bankrupt law
ho was said to wage his law. Pie to discharge an insolvent debtor. See
was then required to swear he owed 2 Bouvier Law Dict.j title Wager of
the plaintiff nothing and to bring Law.
eleven compurgators to swear that
they believed him.
CHAP. IX.] OF INJURIES TO PERSONAL PROPERTY. 495
from wager of law, and the less degree of certainty requisite
in describing the goods, .gave it so considerable an ad-
vantage over the action of detinue, that by a fiction of law
actions of trover were at length permitted to be brought
against any man who had in his possession by any means
whatsoever the personal goods of another, and sold them
or used them without the consent of the owner, or refused
to deliver them when demanded. 9 The injury lies in the
conversion; for any man may take the goods of another into
possession if he finds them, but no finder is allowed to
acquire a property therein unless the owner be forever
unknown; and therefore he must not convert them to his
own use, which the law presumes him to do if he refuses
them to the owner; for which reason such refusal also is,
prima facie, sufficient evidence of a conversion. The fact
of the finding, or trover, is therefore now totally imma-
terial; for the plaintiff needs only to suggest (as words of
form) that he lost such 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 possession, it is
sufficient. But a conversion must be fully proved, 1 and
then in this action the plaintiff shall recover damages equal
to the value of the thing converted, but not the thing itself;
which nothing will recover but an action of detinue or
replevin.
As to the damage that may be offered to things personal
while in the possession of the owner, as hunting a man's
deer, shooting his dogs, poisoning his cattle, or in any wise
taking from the value of any of his chattels, or making
them in a worse condition than before, these are injuries
9. The action of trover in still in Illinois the fiction of losing and find-
use in Illinois and Michigan and per- ing is still retained in the declaration,
haps in other states. It is a concur- See, generally, Puterburgh's Com.
rent action with trespass de bonis Law, Plead. & Practice ( 111. ) , 7th
asportatis (for goods taken and car- Ed., ch. 8, pp. 282-297; Green's New
ried away) and lies for the wrongful Practice (Mich.), 2d Ed., 71; 2 id.
conversion of goods and chattels. Any *1315; Cooley on Torts (Students'
exercise of unlawful dominion over the Ed.), 417; Burdick on Torts (M
goods and chattels of another amounts Ed.), ch. 12, p. 399.
to a conversion. In Michigan and 1. See note, sifpra.
49G OF INJURIES TO PERSONAL PROPERTY. [BOOK III.
too obvious to need explication. [153] The remedies given
by the law to redress them are in two shapes : by action of
tespass vi et armis, where the act is in itself immediately
injurious to another's property, and therefore necessarily
accompanied with some degree of force; and by special
action on the case, where the act is in itself indifferent, and
the injury only consequential, and therefore arising without
any breach of the peace. 2 It is not material whether the
damage be done by the defendant himself, or his servants
by his direction, for the action will lie against the master
as well as the servant. And if a man keeps a dog or other
brute animal used to do mischief, as by worrying sheep, or
the like, the owner must answer for the consequences if he
knows of such evil habit. 3
II. We are next to consider those injuries which regard
things in action only, or such rights as are founded on and
arise from contracts.
Express contracts include three distinct species: debts,
covenants, and promises.
1. The legal acceptation of debt is a sum of money due
by certain and express agreement, as, by a bond for a deter-
minate sum, a bill or note, a special bargain, or a rent re-
served on a lease, where the quantity is fixed and specific,
and does not depend upon any subsequent valuation to
settle it. [154] The non-payment of these is an injury, for
which the proper remedy is by action of debt to compel the
performance of the contract and recover the specifical sum
2. As to the distinction at common Illinois. Howell's Statutes, 1942;
law between the actions of trespass 1 Green's New Pract. *70; 111. Rev.
and case, see the leading case of Scott Stat., ch. 110, sec. 22. In Illinois
v. Shepherd, 2 Blackstone, 892; 1 counts in trover and replevin may,
Smith's Lead. Cases, *549, where it by statute, be joined in the same dec-
was held that trespass will lie for laration. Id., 23.
originally throwing a squib, which 3. Cooley on Torts (Students' Ed.) ,
after having been thrown about in 346 and notes; but the knowledge of
self-defence by other persons, at last the owner, or the scienter, must be
put out the plaintiff's eye. See, also, averred and proved. Id., 346. As to
Cooley on Torts (Students' Ed.)> 40, animals ferae naturae the general rule
i-M. is that a person keeps them at his
The distinction between trespass peril and is liable for any injury they
nd trespass on the case has been do to one not at fault. Id., 350;
DolistKd by statute in Michigan and Burdick on Torts, 508.
CHAP. IX.] OF INJURIES TO PERSONAL PROPERTY. 497
due. This is the shortest and surest remedy, particularly
where the debt arises upon a specialty, that is, upon a deed
or instrument under seal. So, also, if I verbally agree to
pay a man a certain price for a certain parcel of goods, and
fail in the performance, an action of debt lies against me,
for this is also a determinate contract; but if I agree for no
settled price, I am not liable to an action of debt, but a
special action on the case, according to the nature of my
contract. And indeed actions of debt are now seldom
brought but upon special contracts under seal, wherein the
sum due is clearly and precisely expressed; for, in case of
such an action upon a simple contract, the plaintiff labors
under two difficulties. First, the defendant has here the
same advantage as in an action of detinue, that of waging
his law, or purging himself of the debt by oath, if he thinks
proper. [Obsolete.] Secondly, in an action of debt the
plaintiff must prove the whole debt he claims, or recover
nothing at all. For the debt is one single cause of action,
fixed and determined; and which, therefore, if the proof
varies from the claim, cannot be looked upon as the same
contract whereof the performance is sued for. If, there-
fore, I bring an action of debt for 307. , I am not at liberty
to prove a debt of 20L and recover a verdict thereon, any
more than if I bring an action of detinue for a horse, I can
thereby recover an ox, for I fail in the proof of that con-
tract which my action or complaint has alleged to be
specific, express, and determinate. 4 But in an action on the
case, on what is called an indebitatus assumpsit, which is
not brought to compel a specific performance of the con-
tract, but to recover damages for its non-performance, the
implied assumpit, and consequently the damages for the
breach of it, are in their nature indeterminate, and will
therefore adapt and proportion themselves to the truth of
the case which shall be proved, without being confined to
the precise demand stated in the declaration. [155] For
4. The action of debt is still in use low. See Puterburgh's Com. Law,
in Michigan and Illinois and perhaps Plead. & Practice (7th Ed.), 425; 1
ether states. It is now, however, con- Green's New Prac., *68.
current with assumpsit described be-
498 OF INJURIES TO PERSONAL PROPERTY. [BOOK III.
if any debt be proved, however less than the sum demanded,
the law will raise a promise pro tanto, and the damages
will of course be proportioned to the actual debt. So that
I may declare that the defendant, being indebted to me in
30?-. undertook or promised to pay it, but failed; and lay
my damages arising from such failure at what sum I please,
and the jury will, according to the nature of my proof,
allow me either the whole in damages, or any inferior sum. 5
And even in actions of debt, where the contract is proved
or admitted, if the defendant can show that he has dis-
charged any part of it, the plaintiff shall recover the
residue.
The form of the writ of debt is sometimes in the debet
and detinet, and sometimes in the detinet only, that is, the
writ states either that the defendant owes and unjustly
detains the debt or thing in question, or only that he un-
justly detains it. It is brought in the dcbet as well as
d-etinet when sued by one of the original contracting parties
who personally gave the credit against the other who per-
sonally incurred the debt, or against his heirs if they are
bound to the payment; as by the obligee against the obligor,
the landlord against the tenant, &c. But if it be brought
by or against an executor for a debt due to or from the.
testator, this, not being his own debt, shall be sued for in
the detinet only. So also if the action be for goods, or corn,
or a horse, the writ shall be in the detinet only; for nothing
but a sum of money, for which I (or my ancestors in my
name) have personally contracted, is properly considered
as my debt. And indeed a writ of debt in the detinet only,
for goods and chattels, is neither more nor less than a mere
writ of detinue, and is followed by the very same judgment.
2. A covenant also, contained in a deed, to do a direct act
or to omit one, is another species of express contracts, the
violation or breach of which is a civil injury. As if a man
covenants to be at York by such a day, or not to exercise
5. The action of trespass on the other states. See 1 Green's New-
case upon promises, or assumpsit, as Pract. *66; Puterburgh's Com. Law,
it is usually styled, is in common use Plead. & Prac. (7th Ed.), ch 4, p. 70.
in Michigan and Illinois and possibly
CHAP. IX.] OF INJURIES TO PERSONAL PROPERTY. 490
a trade in a particular place, and is not at York at the time
appointed, or carries on his trade in the place forbidden,
these are direct breaches of his covenant, and may be, per-
haps, greatly to the disadvantage and loss of the coven-
antee. [156] The remedy for this is by a writ of covenant,
which directs the sheriff to command the defendant gen-
erally to keep his covenant with the plaintiff (without
specifying the nature of the covenant), or show good cause
to the contrary; and if he continues refractory, or the coven-
ant is already so broken that it cannot now be specifically
performed, then the subsequent proceedings set forth with
precision the covenant, the breach, and the loss which has
happened thereby; whereupon the jury will give damages
in proportion to the injury sustained by the plaintiff and
occasioned by such breach of the defendant's contract. 6
There is one species of covenant of a different nature
from the rest, and that is a covenant real to convey or dis-
pose of lands, which seems to be partly of a personal and
partly of the real nature. For this the remedy is by a
special writ of covenant for a specific performance of the
contract concerning certain lands particularly described in
the writ. 7
No person could at common law take advantage of any
covenant or condition, except such as were parties or privies
thereto, and, of course, no grantee or assignee of any re-
version or rent. To remedy which, and more effectually to
secure to the king's grantees the spoils of the monasteries
than newly dissolved, the statute 32 Hen. VIII. c. 34, 8 gives
the assignee of a reversion (after notice of such assign-
ment) the same remedies against the particular tenant, by
entry or action, for waste or other forfeitures, non-payment
6. The action of covenant is also 7. The remedy now would be by bill
in use in Illinois, Michigan and pos- in equity for a specific performance
sibly other states. See Puterburgh's of the contract. This subject will be
Com. Law, Plead. & Practice (7th more fully considered in vol. 2 of this
Ed.), ch. 7, p. 264; 1 Green's New series.
Pract. *68. In Michigan this action 8. See, generally, 1 Wash. Real
is, by statute, now concurrent with Prop. *327 ; Spencer's Case, 5 Coke
assumpsit. Id., 68; Howell's Stat- Rep. 16; 1 Smith's Lead. Cases, *116.
utes, 1945.
500 Or INJURIES TO PERSONAL PROPERTY. [Boox TIT.
of rent, and non-performance of conditions, covenants, and
agreements, as the assignor himself might have had, and
makes him equally liable, on the other hand, for acts agreed
to be performed by the assignor, except in the case of
warranty.
3. A promise is in the nature of a verbal covenant, and
wants nothing but the solmenity of writing and sealing to
make it absolutely the same. If, therefore, it be to do any
explicit act, it is an express contract as much as any coven-
ant, and the breach of it is an equal injury. The remedy
is by an action upon the case for what is called the assump-
sit, or undertaking of the defendant, the failure of perform-
ing which is the wrong or injury done to the plaintiff, the
damages whereof a jury are to estimate and settle. And
if a builder promises, undertakes, or assumes to Caius [for
a valuable consideration] 9 that he will build and cover his
houses within a time limited, and fails to do it, Caius has
an action on the case against the builder for this breach
of his express promise, undertaking, or assnmpsit, and shall
recover a pecuniary satisfaction for the injury sustained
by such delay. So also in the case, before mentioned, of a
debt by simple contract, if the debtor promises to pay it
and does not, this breach of promise entitles the creditor
to his action on the case, instead of being driven to an
action of debt. Thus likewise a promissory note, or note
of hand not under seal, to pay money at a day certain, is
an express assumpsit; and the payee at common law, or by
custom and act of parliament the indorsee, may recover tho
value of the note in damages if it remains unpaid. Some
agreements, indeed, though never so expressly made, arc
deemed of so important a nature that they ought not to
rest in verbal promise only, which cannot be proved but by
the memory (which sometimes w r ill induce the perjury) of
witnesses. To prevent which the statute of frauds and per-
juries, 29 Car. II. c. 3, enacts that in the five following cases
no verbal promise shall be sufficient to ground an action
upon, but at the least some note or memorandum of it shall
9. A valuable consideration must enforcible at law. See ante, Con-
be averred and proved, or the prom- tracts and post, vol. 2 of this series.
ise will be a mere nudum pactum not
CHAP. IX.] OF IN.U~I;IES TO PERSONAL PROPERTY.
be made in writing, and signed by the party to be charged
therewith: 1. Where an executor or administrator prom-
ises to answer damages out of his own estate. [158] 2.
Where a man undertakes to answer for the debt, default, or
miscarriage of another. 3. Where any agreement is mada
upon consideration of marriage. 4. Where any contract or
sale is made of lands, tenements, or hereditaments, or any
interest therein. 5. And lastly, where there is any agree-
ment that is not to be performed within a year from the
making thereof. In all these cases a mere verbal assiimpsit
is void. 1
Contracts implied by law are such as reason and justice
dictate, and which- therefore the law presumes that every
man has contracted to perform; and upon this presumption
makes him answerable to such persons as suffer by his non-
performance.
Of this nature are, first, such as are necessarily implied
by the fundamental constitution of government, to which
every man is a contracting party. And thus it is that every
person is bound and hath virtually agreed to pay such par-
ticular sums of money as are charged on him by the sen-
tence, or assessed by the interpretation of the law. What-
ever, therefore, the laws order any one to pay, that becomes
instantly a debt, which lie hath beforehand contracted to
discharge. And this implied agreement it is that gives the
plaintiff a right to institute a second action, founded merely
on the general contract, in order to recover such damages
or sum of money as are assessed by the jury and adjudged
by the court to be due from the defendant to the plaintiff
in any former action. So that if he hath once obtained a
judgment against another for a certain sum, and neglects
to take out execution thereupon, he may afterwards bring
an action of debt upon this judgment, 2 and shall not be put
upon the proof of the original cause of action; but upon
1. This section (4) of the Statute 2. See 1 Green's New Pract. *68;
of Frauds has been re-enacted in sub- Puterburgh's Com. Law, Plead. &
stance in most, if not all, the states. Prac. (7th Ed.), 440, where will be
See, generally, Clark on Contracts found forms of declarations on judg-
(3d Ed.), 80-121 and cases cited. See menta.
vol. 2 of this series, title Contracts.
502 OF INJURIES TO PERSONAL PROPERTY. [BOOK III.
showing the judgment once obtained, still in full force, and
yet unsatisfied, the law immediately implies that by the
original contract of society the defendant hath contracted
a debt and is bound to pay it. [159]
On the same principle it is that a forfeiture imposed by
the by-laws and private ordinances of a corporation upon
any that belong to the body, or an amercement set in a
court-leet or court-baron upon any of the suitors to the
court (for otherwise it will not be binding), immediately
create a debt in the eyes of the law, for non-payment of
which the remedy is by action of debt. 3
The same reason may with equal justice be applied to
all penal statutes, that is, such acts of parliament whereby
a forfeiture is inflicted for transgressing the provisions
therein enacted. Usually these forfeitures created by stat-
utte are given at large to any common informer, or, in other
words, to any such person or persons as will sue for the
same; and hence such actions are called popular actions,
because they are given to the people in general. [160]
Sometimes one part is given to the king, to the poor, or to
some public use, and the other part to the informer or
prosecutor; and then the suit is called a qui tarn action,
because it is brought by a person " qui tarn pro domino rege,
&c., quam pro se ipso in liac parte scquitur." If the king,
therefore, himself commences this suit he shall have the
whole forfeiture. But if any one hath begun a qui tarn or
popular action, no other person can pursue it, and the verdict
passed upon the defendant in the first suit is a bar to all
others, and conclusive even to the king himself. This has
frequently occasioned offenders to procure their own friends
to begin a suit, in order to forestall and prevent other ac-
tions; which practice is in some measure prevented by a
statute made in the reign of a very sharp-sighted prince in
penal laws, 4 Hen. VII. c. 20, which enacts that no recovery,
otherwise than by verdict obtained by collusion in an action
popular, shall be a bar to any other action prosecuted bona
fide.
3. See Puterburgh's Com. Law,
Plead. & Prac. (7th Ed.), ch. 13.
CHAP. IX.] OF INJURIES TO PERSONAL PROPERTY. 503
A second class of implied contracts are such as do not
arise from the express determination of any court or the
positive direction of any statute, but from natural reason
and the just construction of law [161] ; which class extends
to all presumptive undertakings or assumpsits, which,
though never perhaps actually made, yet constantly arise
from the general implication and intendment of the courts
of judicature, that every man hath engaged to perform
what his duty or justice requires. Thus,
1. If I employ a person to transact my business for me,
or perform any work, the law implies that I undertook or
assumed to pay him so much as his labor deserved. And
if I neglect to make him amends he has a remedy for this
injury by bringing his action on the case upon this implied
assumpsit,, wherein he is at liberty to suggest that I prom-
ised to pay him so much as he reasonably deserved, and
then to aver that his trouble was really worth such a par-
ticular sum, which the defendant has omitted to pay. But
this valuation of his trouble is submitted to the determina-
tion of a jury, who will assess such a sum in damages as
they think he really merited. This is called an assumpsit
on a quantum meruit.
2. There is also an implied assumpsit on a quantum
valebat which is very similar to the former, being only
where one takes up goods or wares of a tradesman without
expressly agreeing for the price. There the law concludes
that both parties did intentionally agree that the real value
of the goods should be paid, and an action on the case may
be brought accordingly if the vendee refuses to pay that
value.
3. A third species of implied assumpsits is when one has
had and received money belonging to another without any
valuable consideration given on the receiver's part, for the
law construes this to be money had and received for the
use of the owner only, and implies that the person so receiv-
ing promised and undertook to account for it to the true
proprietor. [162] And if he unjustly detains it, an action
on the case lies against him for the breach of such implied
promise and undertaking, and he will be made to repay the
504 OF INJURIES TO PERSONAL PROPERTY. [BOOK III.
owner in damages equivalent to what lie has detained in
violation of such his promise. This is a very extensive
and beneficial remedy, applicable to almost every casa
where the defendant has received money which ex aequo et
bono he ought to refund. It lies for money paid by mistake
or on a consideration which happens to fail, or through im-
position, extortion, or oppression, or where any undue ad-
vantage is taken of the plaintiff's situation.
4. Where a person has laid out and expended his own
money for the use of another at his request the law implies
a promise of repayment, and an action will lie on this
assumpsit.
5. Likewise, upon a stated account between two merch-
ants or other persons, the law implies that he against whom
the balance appears has engaged to pay it to the other,
though there be not any actual promise. And from this
implication it is frequent for actions on the case to be
brought, declaring that the plaintiff and defendant had
settled their accounts together, insimul computassent
(which gives name to this species of assumpsit), and that
the defendant engaged to pay the plaintiff the balance, but
has since neglected to do it. 4
But if no account has been made up, then the legal remedy is by bring-
ing a Tvrit of account, 5 de compute, commanding the defendant to render
a just account to the plaintiff or show the court good cause to the con-
trary. [163] In this action, if the plaintiff succeeds, there are two judg-
ments. The first is, that the defendant do account (quod computet] be-
fore auditors appointed by the court; and, when such amount is finished,
then the second judgment is-, that he do pay the plaintiff so much as he
is found in arrear. This action, by the old common law, lay only against
the parties themselves and not their executors, because matters of ac-
4. The foregoing constitute what Puterburgh's Com. Law, Plead. &
are called the common counts in as- Prac. (7th Ed.), 76-86, for a variety
sumpsit and, as a matter of routine of common counts; 1 Green's Ntw
practice, should be found in every Prac. 186, 187; 2 id. 1173-1192.
declaration in assumpsit upon a con- 5. This action is obsolete in most
tract wholly executed on^ the plain- of the states, but not in Illinois,
tiff's side and where nothing remains though it is rarely brought. See
to be done on the part of the defend- Puterburgh's Com. Law, Plead. &
ant but the payment of money. See Prac. (7th Ed.), eh. 6.
CHAP. IX.] OF INJURIES TO PERSONAL PROPERTY. 505
count rested solely on their own knowledge. But this defect, after many
fruitless attempts in parliament, was at last remedied by statute 4 Anne,
c. 16, which gives an action of account against the executors and adminis-
trators. But, however, it is found by experience that the most ready and
effectual way to settle these matters of account is by a bill in a court of
equity, where a discovery may be had on the defendant's oath, without
relying merely on the evidence which the plaintiff may be able to pro-
duce. 6
6. The last class of implied contracts arises upon this
supposition, that every one who undertakes any office, em-
ployment, trust, or duty, contracts with those who employ
or entrust him to perform it with integrity, diligence, and
skill. And if, by his want of either of those qualities, any
injury accrues to individuals, they have therefore their
remedy in damages by a special action on the case. A few
instances will fully illustrate this matter. If an officer of
the public is guilty of neglect of duty, or a palpable breach
of it, of nonfeasance or of misfeasance, as, if the sheriff does
not execute a writ sent to him, or if he wilfully makes a
false return thereof, in both these cases the party aggrieved
shall have an action on the case for damages to be assessed
by a jury. If a sheriff or gaoler suffers a prisoner, who is
taken up on mesne process (that is, during the pendency of
.a suit), to escape, he is liable to an action on the case. [164]
But if, after judgment, a gaoler or a sheriff permits a debtor
to escape who is charged in execution for a certain sum, the
debt immediately becomes his own, and he is compellable by
action of debt, being for a sum liquidated and ascertained, to
satisfy the creditor his whole demand, which doctrine is
grounded on the equity of the statute of Westm. 2, 13
Edw. I. c. 11, and 1 Bic. II. c. 12. An advocate or attorney
that betrays the cause of his client, or, being retained, neg-
lects to appear at the trial, by which the cause miscarries,
is liable to an action on the case for reparation to his in-
jured client. 7 There is also in law always an implied con-
tract with a common innkeeper to secure his guest's goods
in his inn; with a common carrier 8 or bargemaster to be an-
6. Sea Puterburgh's PI. & Pr.. Id. men, generally, Cooley on Torts (Stu-
7. See, as to liability for negligence dents' Ed.), 668-674 and cases cited,
of skilled workmen and professional 8. See ante, Bailments.
506 Or INJURIES TO PERSONAL PROPERTY. [BooK 111.
swerable for the goods he carries; with a common farrier,
that he ^shoes a horse well without laming him; with a
common ' tailor, or other workman, that he performs his
business in a workmanlike manner, in which, if they fail,
an action on the case lies to recover damages for such
breach of their general undertaking. But if I employ a
person to transact any of these concerns, whose common
profession and business it is not, the law implies no such
general undertaking, but, in order to charge him with dam-
ages, a special agreement is required. Also, if an inn-
keeper or other victualler hangs out a sign and opens
his house for travelers, it is an implied engagement
to entertain all persons who travel that way; and upon this
universal assumpsit an action on the case will lie against
him for damages if he without good reason refuses to ad-
mit a traveller. 9 If any one cheats me with false cards or
dice, or by false weights and measures, or by selling me one
commodity for another, an action on the case also lies
against him for damages upon the contract which the law
always implies, that every transaction is fair and honest.
In contracts, likewise, for sales, it is constantly under-
stood that the seller undertakes that the commodity he
sells is his own, and if it proves otherwise an action on the
case lies against him to exact damages for this deceit. [165]
In contracts for provisions it is always implied that they
are wholesome, and if they be not the same remedy may be
had. Also, if he that selleth anything doth upon the sale
warrant it to be good the law annexes a tacit contract to
his warranty that if it be not so he shall make compensa-
tion to the buyer, else it is an injury to good faith, for which
an action on the case will lie to recover damages. The
warranty must be upon the sale, for if it be made after and
not at the time of the sale it is a void warranty; for it is
then made without any consideration, neither does the
buyer then take the goods upon the credit of the vendor.
Also the warranty can only reach to things in being at the
time of the warranty made, and not to things in futoro,
as, that a horse is sound at the buying of him, not that he
9. Cooley on Torts (Students' Ed.),
303.
CHAP. IX.] OF INJURIES TO PERSONAL PROPERTY. 507
will be sound two years hence. . But if the vendor knew
the goods to be unsound, and hath used any art to disguise
them, or if they are in any shape different from what he
represents them to be to the buyer, this artifice shall
be equivalent to an express warranty, and the vendor
is answerable for their goodness. A general warranty
will not extend to guard against defects that are plainly and
obviously the object of one's senses, as if a horse be war-
ranted perfect and wants either a tail or an ear, unless the
buyer in this case be blind. But if cloth is warranted to
be of such a length when it is not, there an action on the
case lies for damages; for that cannot be discerned by sight,
but only by a collateral proof, the measuring it. Also, if
a horse is warranted sound, and he wants the sight of an
eye, |hough this seems to be the object of one's senses, yet
as the discernment of such defects is frequently matter of
skill, it hath been held that an action on the case lieth to
recover damages for this imposition. 1
Besides the special action on the case, there is also a peculiar remedy
entitled an action of deceit [obsolete], to give damages in some particular
cases of fraud, and principally where one man does anything in the
name of another by which he is deceived or injured, as if one brings an
action in another's name, and then suffers nonsuit, whereby the plain-
tiff becomes liable to costs; or where one obtains or suffers, a fraudulent
recovery of lands, tenements, or chattels, to the prejudice of him that
hath right. [166] It also lies in the cases of warranty before mentioned,
and other personal injuries committed contrary to good faith and honesty.
But an action on the case for damages in nature of a writ of deceit is
more usually brought upon these occasions. 2
1. See ante, Contracts and vol. 2 of sumpsit on the warranty or case for
this series, Warranty. the deceit. See, generally, Cooley on
Where a warranty is both false and Torts (Students' Ed.), ch. 15, p. 460.
fraudulent, i. e., when the vendor 2. See note ( 1 ) above,
either knows that his representations, In those states which, following New
being- material, were false or consci- York, have so-called codes of procedure
ously had no knowledge on the sub- the several forms of action described
ject but still made a false and mate- in this chapter have been abolished
rial representation as to a matter and one form of proceeding called a
susceptible of knowledge, with intent " civil action " adopted for all eases,
that another should rely upon such The real essence of the injuries corn-
representation who in fact did rely plained of remains the same, however,
on it to his damage, the plaintiff has in both cases,
his election to bring an action of as-
508 Or IN JUEIES TO REAL PROPERTY. [Boox III.
CHAPTER X.
OF INJURIES TO REAL PROPERTY; AND FIRST OF DISPOSSESSION,
OR OUSTER OF THE FREEHOLD.
Real injuries, or injuries affecting real rights, are prin-
cipally six: 1. Ouster; 2. Trespass; 3. Nuisance; 4.
Waste; 5. Subtraction; 6. Disturbance. [167]
Ouster, or dispossession, is a wrong or injury that car-
ries with it the amotion of possession; for thereby the
wrongdoer gets into the actual occupation of the land or
hereditament, and obliges him that hath a right to seek
his legal remedy, in order to gain possession, and damages
for the injury sustained. And such ouster, or dispo,sses-
sion, may either be of the freehold,, or of chattels real.
Ouster of the freehold is effected by one of the following
methods: 1. Abatement; 2-. Intrusion; 3. Disseisin; 4. Dis-
continuance; 5. Deforcement, all of which in their order,
and afterwards their respective remedies, will be con-
sidered in the present chapter.
1. And first, an abatement is where a person dies seisetl
of an inheritance, and before the heir or devisee enters, a
stranger who has no right makes entry, and gets possession
of the freehold. This entry of him is called an abatement,
and he himself is denominated an abator. [168]
2. The second species of injury, by ouster, or amotion of
possession from the freehold, is by intrusion, which is the
entry of a stranger, after a particular estate of freehold is
determined, before him in remainder or reversion. [169]
This entry and interposition of the stranger differ from an
abatement in this, that an abatement is always to the preju-
dice of the heir, or immediate devisee, an intrusion is always
to the prejudice of him in remainder or reversion.
3. The third species of injury by ouster, or privation of,
the freehold, is by disseisin. Disseisin is a wrongful put-
ting out of him that is seised of the freehold. The two
former species of injury were by a wrongful entry where
the possession was vacant; but this is an attack upon him
CHAP. X.] OF INJURIES TO REAL PROPERTY. 509
who is in actual possession, and turning him out of it.
Disseisin of things corporeal, as of houses, lands, &c., must
be by entry and actual dispossession of the freehold. [170]
Disseisin of incorporeal hereditaments cannot be an actual
dispossession, for the subject itself is neither capable of
actual bodily possession or dispossession; but it depends
on their respective natures and various kinds, being in
general nothing more than a disturbance of the owner in
the means of coming at or enjoying them. But all these
disseisins, of hereditaments incorporeal, are only so at the
election and choice of the party injured, if, for the sake
of more easily trying the right, he is pleased to suppose
himself disseised.
Two remaining species of injury are where the entry of
the tenant was at first lawful, but the wrong consists in
the detaining of possession afterwards. [171]
4. Such is, fourthly, the injury of discontinuance, which happens when
he who hath an estate-tail maketh a larger estate of the land than by law
he is entitled to do, in which case the estate is good so far as his power
extends who made it, but no farther. As if tenant In tail makes a feoff-
ment in fee-simple, or for the life 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 lease for his own life, in such case the entry of the
feoffee is lawful during the life of the feoffor. But if he retains the pos-
session after the death of the feoffor, it is an .injury which is termed a
discontinuance, the ancient legal estate which ought to have survived
to the heir in tail, being gone, or at least suspended, and for a while
discontinued. [172]
5. The fifth and last species of injuries, by ouster, or privation of the
freehold, where the entry of the present tenant or possessor was origi-
nally lawful, but his detainer is now become unlawful, is that by deforce-
ment. This, in its most extensive sense, is nomen generalissimum, a much
larger and more comprehensive expression than any of the former, it theu
signifying the holding of any lands or tenements to which another person
hath a right. So that this includes as well an abatement, an intrusion,
a disseisin, or a discontinuance, as any other species of wrong whatso-
ever, whereby he that hath right to the freehold is kept out of possession.
But. as contradistinguished from the former, it is only such a detainer
of the freehold, from him that hath the right of property, but never had
any possession under that right, as falls within none of the injuries
which we have before explained. [173]
510 OF INJURIES TO REAL PROPERTY. [BOOK III.
The remedy for the several species of ouster is univer-
sally the restitution of possession, and in some cases dam-
ages also. The methods of obtaining a remedy are various:
1. The first is that of entry by the legal owner, when an-
other person, who hath no right, hath previously taken
possession of lands or tenements. [174] In this case the
party entitled may make a formal, but peaceable, entry
thereon, declaring that thereby he takes possession; or he
may enter on any part of it in the same county, declaring
it to be in the name of the whole; but if it lies in different
counties he must make different entries. [175] Also if
there be two disseisors, the party disseised must make his
entry on both; or if one disseisor has conveyed the lands
with livery to two distinct feoffees, entry must be made on
both. If the claimant be deterred from entering by menaces
or bodily fear, he may make claim, as near to the estate
as he can, with the like forms and solemnities, which claim
is in force for only a year and a day. And this claim, if it be
repeated once in the space of every year and a day (which
is called continual claim), has the same effect with, and in
all respects amounts to, a legal entry. Such an entry gives
a man seisin, or puts into immediate possession him that
hath right of entry on the estate, and thereby makes him
complete owner, and capable of conveying it from himself
by either descent or purchase. 1
This remedy by entry takes place in three only of the
five species of ouster, viz., abatement, intrusion, and dis-
seisin.
But upon a discontinuance or deforcement the owner of the estate can-
not enter, but is driven to his action; for herein the original entry being
lawful, and thereby an apparent right of possession being gained, the law
will not suffer that right to be overthrown by the mere act or entry of
the claimant.
1. See 2 Wash. Real Prop. *485, period since the time when the actual
486, "As affecting the question of seisin was gained by one and lost by
title, however, these principles [re- the other." Ib. See, also, Stat. 3 &
ferring to re-entry by the disseisee] 4 Win. 4, c. 27, and the local statutes
are chiefly important in determining of the several states as to the legal
whether a title has bten gained by effect of entry,
adverse enjoyment for the requisite
CHAP. X.] OF INJURIES TO. REAL, PROPERTY. 511
Yet a man may enter on his tenant by sufferance; for
such tenant hath no freehold, but only a bare possession,
which may be defeated, like a tenancy at will, by the mere
entry of the owner.
On the other hand, in case of abatement, intrusion, or disseisin, where
entries are generally lawful, this right of entry may be tolled, that is,
taken away by descent. [176] In general no man can recover possession
by mere entry on lands which another hath by descent. [177] Yet this
rule hath some exceptions, especially if the claimant were under any
legal disabilities during the life of the ancestor, either of infancy, cover-
ture, imprisonment, insanity, or being out of the realm, in all which
cases there is no neglect or laches in the claimant, and therefore no
descent shall bar or take away his entry. On the other hand, it is en-
acted by the statute of limitations, 21 Jac. I. c. 1&, that no entry shall be
made by any man upon lands, unless within twenty years after his right
shall accrue. [178]
This remedy by entry must be pursued according to
statute 5 Ric. II. st. 1, c. 8, in a peaceable and easy manner,
and not with force or strong hand. [179] For if one turns
or keeps another out of possession forcibly, this is an injury
of both a civil and a criminal nature. The civil is remedied
by immediate restitution, which puts the ancient possessor
in statu quo; 2 the criminal injury, or public wrong, by
breach of the king's peace, is punished by fine to the king.
For by the statute 8 Hen. VI. c. 9, upon complaint made to
any justice of the peace, of a forcible entry, with strong
hand, on lands or tenements, or a forcible detainer after
a peaceable entry, he shall try the truth of the complaint
by jury, and upon force found shall restore the possession
to the party so put out. 3 But this does not extend to such
as endeavor to keep possession manu fortif after three
years' peaceable enjoyment of either themselves, their an-
cestors, or those under whom they claim; by a subsequent
clause of the same statute, enforced by statute 31 Eliz. c. 11.
2. In his former condition or state. 1; Rev. Stat. N. Y., pt. 3, ch. 8. tit.
3. These statutes have been re-en- 10, sec. 1; 2 Comp. Laws, Mich. 1871,
acted and extended by most of the sec. 6695.
states. See Gen. Stat. Mass., ch. 137, 4. By a strong hand.
sec. 1; Rev. Stat. 111. 1874, 335, sec.
512 OF INJURIES TO REAL PROPERTY. fBooK III.
II. Thus' far of remedies when tenant or occupier of the land hath
gained only a mere possession, and no apparent shadow of right. Next
follow another class which are in use where the title of the tenant or
occupier is advanced one step nearer to perfection, so that he hath in him
not only a bare possession, which may be destroyed by a bare entry, but
also an apparent right of possession, which cannot be removed but by
orderly course of law, in the process of which it must be shown that
though he hath at present possession and therefore hath the presump-
tive right, yet, there is a right of possession superior to his, residing in
him who brings the action. [180]
These remedies are either by a writ of entry or an assise, which are
action merely possessory, serving only to regain that possession whereof
the demandant (that is, he who sues for the land) or his ancestors have
been unjustly deprived by the tenant or possessor of the freehold, or
those under whom lie claims. They decide nothing with respect to the
right of property, only restoring the demandant to that state or situation
in which he was (or by law ought to have been) before the dispossession
committed. But this without any prejudice to the right of ownership;
for if the dispossessor has any legal claim, he may afterwards exert it,
notwithstanding a recovery against him in these 'possessory actions.
Only the law will not suffer him to be his own judge, and either take or
maintain possession of the lands until he hath recovered them by legal
means, rather presuming the right to have accompanied the ancient seisin
than to reside in one who had no such evidence in his favor.
1. The first of these possessory remedies is by writ of entry [obsolete],
which is that which disproves the title of the tenant or possessor, by
showing the unlawful means by which he entered or continues possession.
This remedy is applicable to all the cases of ouster before mentioned,
except that of discontinuance by tenant in tail, and some peculiar species
of deforcements. [182] [See the text for these exceptions.]
2. As a writ of entry is a real action which disproves the title of the
tenant by showing the unlawful commencement of his possession, so a
writ of assise [obsolete] is a real action which proves the title of the
demandant merely by showing his or his ancestor's possession. And
these two remedies are in all other respects so totally alike, that a judg-
ment or recovery in one is a bar against the other; so that when a man's
possession is once established by either of these possessory actions, it
can never be disturbed by the same antagonist in any other of them. [185]
This remedy, by writ of assise, is only applicable to two species of injury
by ouster, viz. abatement and a recent or novel disseisin.
III. By these several possessory remedies the right of possession may
be restored to him that is unjustly deprived thereof. [190] But the right
of possession (though it carries with it a strong presumption) is not al-
ways conclusive evidence of the right of property, which may still subsist
in another man. For as one man may have the possession and another the
right of possession, which is recovered by these possessory actions, so
one man may have the right of possession, and so not be liable to eviction
CHAP. X.] OF INJURIES TO REAL PROPERTY. 513
by any possessory action, and another may have the right of property,
which cannot be otherwise asserted than by the great and final remedy of
& writ of right, or such correspondent writs as are in the nature of a
' writ of right. [191] [Obsolete.]
This happens principally in four cases: 1. Upon discontinuance by the
alienation of tenant in tail, whereby he who had the right of possession
hath transferred it to the alienee, and therefore his issue, or those in re-
mainder or reversion, shall not be allowed to recover by virtue of that
possession which the tenant hath so voluntarily transferred. 2, 3. In
case of judgment given against either party, whether by his own default
or upon trial of the merits in any possessory action; for such judgment,
if obtained by him who hath not the true ownership, is held to be a
species of deforcement, which, however, binds the right of possession,
and suffers it not to be ever again disputed, unless the right of property
be also proved. 4. In case the demandant, who claims the right, is
barred from these possessory actions by length of time and the statute of
limitations; for an undisturbed possession for fifty years ought not to
be devested by anything but a very clear proof of the absolute right of
property. In these four cases the law applies the remedial instrument
of either the writ of right itself, or such other writs as are said to be of
the same nature. [For particulars, see text.]
The title of lands is now usually tried in actions of eject-
ment or trespass; of which in the following chapters. 5 [1971
5. The real actions have been abol- \Vm. 4, ch. 27, and the local statutes
ished or become obsolete in all the of the several states,
states and in England. See 3 & 4
33
514 OUSTER OF CHATTELS REAL. [BooK III.
CHAPTER XL
OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL.
I. Ouster, or emotion of possession from estates held by statute, recog-
nizance, or elegrit, is only liable to happen by a species of disseisin, or
turning out of the legal proprietor before his estate is determined, by
raising the sum for which it is given him in pledge. [198] And for such
ouster, though the estate be merely a chattel interest, the owner shall
[by statute] have the same remedy as for an injury to a freehold, viz.
by assise of novel disseisin. [Obsolete.]
II. As for ouster or amotion of possession, from an estate
for years, this happens only by a like kind of disseisin, ejec-
tion, or turning out of the tenant from the occupation of
the land during the continuance of his term. [199] For
this injury the law has provided him with two remedies,
according to the circumstances and situation of the wrong-
doer: the writ of ejectione firmae, 1 which lies against any
one, the lessor, reversioner, remainder-man, or any stranger
who is himself the wrongdoer and has committed the injury
complained of; and the writ of quare ejecit infra terminum, 2
which lies not against the wrongdoer or ejector himself,
but his feoffee or other person claiming under him. These
are mixed actions, somewhat between real and personal;
for therein are two things recovered, as well restitution of
the term of years as damages for the ouster or wrong.
1. A writ then of ejectione firmae., or action of trespass in
ejectment, lieth where lands or tenements are let for a term
of years, and afterwards the lessor, reversioner, remainder-
man, or any stranger doth eject or oust the lessee of his
term. And by this writ the plaintiff shall recover back his
term, or the remainder of it, with damages. Since the dis-
use of real actions, this mixed proceeding is become the
common method of trying the title to lands or tenements.
[200]
The remedy by ejectment is in its original an action
1. Ejection from the farm. 2. Wherefore he ejected within the
term.
CHAP. XL] OUSTER OF CHATTELS REAL. 515
brought by one who hath a lease for years to repair the
injury done him by dispossession. [201] In order, there-
fore, to convert it into a method of trying titles to the free-
hold, it is first necessary that the claimant do take posses-
sion of the lands, to empower him to constitute a lessee for
years, that may be capable of receiving this injury of dis-
possession. When, therefore, a person who hath right of
entry into lands determines to acquire that possession which
is wrongfully withheld by the present tenant, he makes (as
by law he may) a formal entry on the premises, and being
so in the possession of the soil, he there, upon the land,
seals and delivers a lease for years to some third person or
lessee, and, having thus given him entry, leaves him in pos-
session of the premises. This lessee is to stay upon the
land till the prior tenant, or he who had the previous pos-
session, enters thereon afresh and ousts him, or till some
other person (either by accident or by agreement before-
hand) comes upon the land, and turns him out or ejects
him. [202] For this injury the lessee is entitled to his
action of ejectment against the tenant, or this casual ejector,
whichever it was that ousted him, to recover back his term
and damages. But where this action is brought against
such a casual ejector as is before mentioned, and not against
the very tenant in possession, the court will not suffer the
tenant to lose his possession without any opportunity to
defend it. Wherefore it is a standing rule that no plain-
tiff shall proceed in ejectment to recover lands against a
casual ejector without notice given to the tenant in posses-
sion (if any there be), and making him a defendant if he
pleases. And in order to maintain the action the plaintiff
must, in case of any defence, make out four points before
the court, viz., title, lease, entry, and ouster. First, he
must show a good title in his lessor, which brings the matter
of right entirely before the court ; then, that the lessor, being
seised or possessd by virtue of such title, did make him the
lease for the present term; thirdly, that he, the lessee or
plaintiff, did enter or take possession in consequence of such
lease; and then, lastly, that the defendant ousted or ejected
him. Whereupon he shall have judgment to recover his
516 OUSTER OF CHATTELS REAL. [BOOK ITT.
term and damages, and shall, in consequence, have a u-rit of
possession, which the sheriff is to execute by delivering him
the undisturbed and peaceable possession of his term.
This is the regular method of bringing an action of eject-
ment, and must be still continued in due form and strict-
ness, save only as to the notice to the tenant whenever the
possession is vacant or there is no actual occupant of tin*
premises, and also in some other cases. But as much trouble
and formality were found to attend the actual making of the
leave, entry, and ouster, a new and more easy method of try-
ing titles by writ of ejectment, where there is any actual
tenant or occupier of the premises in dispute, was invented
somewhat more than a century ago by the Lord Chief Jus-
tice Rolle. [203] This new method entirely depends upon
a string of legal fictions: no actual lease is made, no actual
entry by the plaintiff, no actual ouster by the defendant,
but all are merely ideal for the sole purpose of trying
the title. To this end, in the proceedings, a lease for a
term of years is stated to have been made by him who
claims title, to the plaintiff who brings the action, as by
John Rogers to Richard Smith. It is also stated that
Smith, the lessee, entered, and that the defendant William
Stiles, who is called the casual ejector, ousted him, for
which ouster he brings this action. As soon as this action
is brought, and the complaint fully stated in the declara-
tion, Stiles, the casual ejector or defendant, sends a written
notice to the tenant in possession of the lands, as George
Saunders, informing him of the action brought by Richard
Smith, and transmitting him a Copy of the declaration,
withal assuring him that he, Stiles, the defendant, has no
title at all to the premises, and shall make no defence, and
therefore advising the tenant to appear in court and defend
his own title, otherwise he, the casual ejector, will suffer
judgment to be had again him, and thereby the actual
tenant, Saunders, will inevitably be turned out of posses-
sion. On receipt of this friendly caution, if the tenant in
possession does not within a limited time apply to the
court to be admitted a defendant in the stead of Stiles, he
is supposed to have no right at all; and, upon judgment
OJIAT\ XL] OUSTER OF CHATTELS REAL. 517
being had against Stiles, the casual ejector, Saunders, the
real tenant, will be turned out of possession by the sheriff.
But if the tenant in possession applies to be made a
defendant it is allowed him upon this condition: that he
enter into a rule of court to confess at the trial of the cause
three of the four requisites for the maintenance of the plain-
tiff's action, viz., the lease of Rogers, the lessor, the entry
of Smith, the plaintiff, and his ouster by Saunders himself,
now made the defendant instead of Stiles which requi-
sites being wholly fictitious, should the defendant put the
plaintiff to prove them, he must of course be nonsuited for
want of evidence; but by such stipulated confession of
lease, entry, and ouster, the trial will now stand upon the
merits of the title only. [204] This done, the declaration
is altered by inserting the name of George Saunders instead
of William Stiles, and the cause goes down to trial under
the name of Smith (the plaintiff), on the demise of Rogers
(the lessor), against Saunders, the new defendant. And
therein the lessor of the plaintiff is bound to make out a
clear title, otherwise his fictitious lessee cannot obtain
judgment to have possession of the land for the term sup-
posed to be granted. But if the lessor makes out his title
in a satisfactory manner, then judgment and a writ of
possession shall go for Richard Smith, the nominal plain-
tiff, who by this trial has proved the right of John Rogers,
his supposed lessor. But if the new defendants, whether
landlord or tenant or both, after entering into the common
rule, fail to appear at the trial, and to confess lease, entry,
and ouster, the plaintiff (Smith) must indeed be there non-
suited for want of proving those requisites; but judgment
will in the end be entered against the casual ejector, Stiles,
for the condition on which Saunders or his landlord was
admitted a defendant is broken, and therefore the plaintiff
is put again in the same situation as if he never had ap-
peared at all, the consequence of which (we have seen)
would have been that judgment would have been entered
for the plaintiff, and the sheriff, by virtue of a writ for
that purpose, would have turned out Saunders and deliv-
ered possession to Smith. [205] The same process there-
518 OUSTER OF CHATTELS REAL. [BOOK IIT.
fore as would have been had, provided no conditional rule
had been ever made, must now be pursued as soon as the
condition is broken. 3
The damages recovered in these actions, though formerly
their only intent, are now usually (since the title has been
considered as the principal question) very small and inade-
quate, amounting commonly to one shilling or some other
trivial sum. In order, therefore, to complete the remedy,
when the possession has been long detained from him that
had the right to it, an action of trespass also lies after a
recovery in ejectment to recover the mesne profits which
the tenant in possession has wrongfully received ; which ac-
tion may be brought in the name of either the nominal
plaintiff in the ejectment or his lessor against the tenant in
possession, whether he be made party to the ejectment, or
suffers judgment to go by default. In this case the judg-
ment in ejectment is conclusive evidence against the de-
fendant for all profits which have accrued since the date of
the demise stated in the former declaration of the plaintiff;
but if the plaintiff sues for any antecedent profits, the de-
fendant may make a new defence. 4
3. The action of ejectment is still till the costs of a former ejectment,
in use eo nomine (by that name) in though brought in another court, be
Illinois, Michigan and probably other discharged. 2 Bla. Rep. 1158; Barnes,
states; but it has been shorn of its 133. But a court of equity, in some
fictions and the action is begun like instances where there had been sev-
any other action by the real claimant eral trials in ejectment for the same
against the party in possession or premises, though the title was entirely
alleged owner, if unoccupied. At com- legal, has granted a perpetual in-
mon law one or both the parties to junction. 1 P. W. 672. By statute,
the action being fictitious, the judg- however, one or more new trials are
ment was not a bar and the unsuc- now granted in certain cases. Consult
cessful party might re-try the same the local statutes. See 1 Green's New
question as often as' he pleased with- Practice, 371; Howell's (Mich.) Stat-
out the leave of the court; for by utes, 1955, 1956; Rev. Stat. 111., ch.
making a fresh demise to another 45, sec. 35.
nominal character, it becomes the ac- 4. In Illinois, Michigan and prob-
tion of a new plaintiff upon another ably other states, it is not now neces-
right, and the courts of law could not sary to bring a nrw action for the
any farther prevent this repetition of mesne profits, but they may be re-
the action, than by ordering the pro- covered in the same action on filing
ceedings in one ejectment to be stayed what is called a suggestion of claim
CHAP. XL] OUSTEK OF CHATTELS REAL. 519
A writ of ejectment is not an adequate means to try the
title of all estates, for on those things whereon an entry
cannot in fact be made no entry shall be supposed by any
fiction of the parties. Therefore an ejectment will not lie
of an advowson, a rent, a common, or other incorporeal
hereditament.
2. The writ of quare ejecit infra terminum lieth by the ancient law
where the wrongdoer or ejector is not himself in possession of the lands,
but another who claims under him. [207] But since the introduction of
fictitious ousters, whereby the title may be tried against any tenant in
possession (by what means soever he acquired it), and the subsequent
recovery of damages by action of trespass for mesne profits, this action
is fallen into disuse.
for mesne profits. See Puterburgh'a 420, 421; 1 Green's New Prac. 375;
Com. Law, Plead. & Prac. (7th Ed.), 6 Hill (N. Y.) 328.
520 OF TRESPASS. [BOOK III.
CHAPTER XII.
OF TRESPASS.
Trespass, in its largest and most extensive sense, signifies
any transgression or offence against the law of nature, of
society, or of the country in which we live, whether it
relates to a man's person or his property. [208] But in the
limited and confined sense in which we are at present to
consider it, it signifies no more than an entry on another
man's ground without a lawful authority, and doing some
damage, however, inconsiderable, to his real property. [209]
The law of England treats every entry upon another's
lands (unless by the owner's leave, or in some very particu-
lar cases) as an injury or wrong, for satisfaction of which
an action of , trespass will lie, but determines the quantum
of that satisfaction by considering how far the offence was
wilful or inadvertent, and by estimating the value of the
actual damage sustained.
Every unwarrantable entry on another's soil the law
entitles a trespass by breaking his close, the words of the
writ of trespass commanding the defendant to show cause
quare clausum querentis f re git. 1 For every man's land is
in the eye of the law enclosed and set apart from his neigh-
bor's and that either by a visible and material fence, as one
field is divided from another by a hedge, or by an ideal in-
visible boundary, existing only in the contemplation of law,
as when one man's land adjoins to another's in the same
field. [210] And every such entry or breach of a man's
close carries necessarily along with it some damage or
other; for if no other special loss can be assigned, yet still
the words of the writ itself specify one general damage, viz.,
the treading down and bruising his herbage.
1. Wherefore he broke the plaintiff's 1 Green's New Practice, *70, 71. In
close. both states trespass and case are con-
This a.ction is still in use in Michi- current remedies. Id. The same
pui. Illinois and probably other remedy exists, though under another
stales. See Puterburgh's Com. Law, form in all the states.
Plead. & Prae. (7th Ed.), 320, Oo3;
CHAP. XIL] OF TRESPASS. 521
One must have a property (either absolute or temporary)
in the soil, and actual possession by entry, to be able to
maintain an action of trespass; or at least it is requisite
that the party have a lease and possession of the vesture
and herbage of the land. But before entry and actual
possession one cannot maintain an action of trespass
though he hath the freehold in law. And therefore an heir
before entry cannot have this action against an abator,
though a disseisee might have it against the disseisor for
the injury done by the disseisin itself at which time the
plaintiff was seised of the land; but he cannot have it for
any act done after the disseisin until he hath gained pos-
session 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 jus postliminii, supposes the freehold to have all
along continued in him.
A man is answerable for not only his own trespass but
that of his cattle also; for if by his negligent keeping they
stray upon the land of another (and much more, if he per-
mits, or drives them on), and they there tread dawn his
neighbor's herbage and spoil his corn or his trees, this is
a trespass for which the owner must answer in damages,
and the law gives the party injured a double remedy in this
<?ase, by permitting him to distrain the cattle thus damafje-
fcasant, or doing damage, till the owner shall make him
satisfaction, or else by leaving him to the common remedy
in foro contentioso , 2 by action. [211] And the action that
lies in either of these cases of trespass committted upon
another's land, either by a man himself or his cattle, is the
action of trespass vi ct arrnis.
In trespasses of a permanent nature, where the injury is
continually renewed (as by spoiling or consuming the herb-
age with the defendant's cattle), the declaration may allege
the injury to have been committed by continuation from
one given day to another (which is called laying the action
with a continuandc), and the plaintiff shall not be com-
pelled to bring separate actions .for every day's separate
^offence. [212] But where the trespass is by one or several
2. In a court of litigation.
522 OF TRESPASS. [Boox III.
acts, each of which terminates in itself, and being once
done cannot be done again, it cannot be laid with a continu-
ando; yet if there be repeated acts of trespass committed,,
as cutting 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. 3
In some cases trespass is justifiable, or, rather, entry on
another's land or house shall not in those cases be accounted
trespass, as if a man comes thither to demand or pay money
there payable, or to execute in a legal manner the process
of the law. Also, a man may justify entering into an inn
or public house without the leave of the owner first spe-
cially asked, because when a man professes the keeping
such inn or public house he thereby gives a general licence
to any person to enter his doors. So a landlord may justify
entering to distrain for rent, a commoner to attend his
cattle commoning on another's land, and a reversioner to
see if any waste be committed on the estate for the appar-
ent necessity of the thing. In like manner the common
law warrants the hunting of ravenous beasts of prey, as
badgers and foxes, in another man's land, because the de-
stroying such creatures is said to be profitable to the pub-
lic. [213] [Not the law, except perhaps as to noxious ani-
mals that are a public nuisance.] But in cases where a
man misdemeans himself, or makes an ill use of the author-
ity with which the law intrusts him, he shall be accounted
a trespasser ab initio, as if one conies into a tavern and
will not go out in a reasonable time, but tarries there all
night contrary to the inclinations of the owner, this wrong-
ful act shall affect and have relation back even to his first
entry, and make the whole a trespass. But a bare non-
feasance, as not paying for the wine he calls for, will not
make him a trespasser, for this is only a breach of contract
for which the travener shall have an action of debt or
3. The latter mode prevails in mod- tween that day and the commencement
cm practice, and the form of declar- of the suit, trespassed, the plaintiff
ing with a continuando has grown may prove any number of trespasses
obsolete. Under the statement that within those limits, though none are-
the defendant, on a day named, and specified except those on the earliest
on divers other days and times be- day named. 1 Stark. R. 351.
CHAP. XII.] OF TRESPASS. 523
assumpsit against him. 4 So if a landlord distrained for
rent and wilfully killed the distress, this by the common
law made him a trespasser ab initio. If a reversioner who
enters on pretence of seeing waste breaks the house or stays
there all night, or if the commoner who comes to tend his
cattle cuts down a tree, in these and similar cases the law
judges that he entered for this unlawful purpose; and
therefore, as the act which demonstrates such his purpose
is a trespass, he shall be esteemed a trespasser ab initio.
So, also, in the case of hunting the fox or the badger, a
man cannot justify breaking the soil and digging him out
of his earth; for though the law warrants the hunting of
such noxious animals for the public good, 5 yet it is held
that such things must be done in an ordinary and usual
manner: therefore, as there is an ordinary course to kill
them, viz., by hunting, the court held that the digging
for them was unlawful. [214]
A man may also justify in an action of trespass on ac-
count of the freehold and right of entry being in himself,
and this defence brings the title of the estate in question. 6
This is therefore one of the ways devised since the disuse
of real actions to try the property of estates, though it is
not so usual as that by ejectment, because that, being now
a mixed action, not only gives damages for the ejection, but
also possession of the land; whereas in trespass, which is
merely a personal suit, the right can be only ascertained,
but no possession delivered, nothing being recovered but
damages for the wrong committed.
4. This is the rule in the leading Cooley on Torts (Students' Ed.), 313;
case known as The Six Carpenters' Diana Shooting Club v. Lamoreaux,
Case, 8 Coke, 146; 1 Smith's Lead. 114 Wis. 44.
Cases, *216. 6. By the plea of liberum tenemen-
5. Not the law in this country. turn, i. e., that the locus in quo was
Even a state license to hunt and fish the defendant's freehold. Gould's
confers no right to commit a trespass. Pleading, ch. vi, part 2, sees. 91-93.
524 OF NUISANCE. [BooK III.
CHAPTER XIII.
OF NUISANCE.
A third species of real injuries to a man's lands and tene-
ments is by nuisance. Nuisance (nocumentum) or annoy-
ance signifies anything that worketh hurt, inconvenience,
or damage. [216] And nuisances are of two kinds: public
or common nuisances, which affect the public and are an-
noyance to all the king's subjects, for which reason we
must refer them to the class of public wrongs or crimes and
misdemeanors; 1 and private nuisances, which are the ob-
jects of our present consideration, and may be denned any-
thing done to the hurt or annoyance of the lands, tenements,
or hereditaments of another.
I. We will consider first such nuisances as may affect a
man's corporeal hereditaments, and then those that may
damage such as are incorporeal.
1. First, as to corporeal inheritances. If a man builds a
house so close to mine that his roof overhangs my roof and
throws the water off his roof upon mine, this is a nuisance
for which an action will lie. Likewise to erect a house or
other building so near to mine that it obstructs my ancient
lights and windows is a nuisance of a similar nature. 2 Also,
if a person keeps his hogs or other noisome animals so
near the house of another that the stench of them incom-
modes him and makes the air unwholesome, this is an in-
jurious nuisance, as it tends to deprive him of the use and
benefit of his house. A like injury is if one's neighbor sets
up and exercises an offensive trade, as a tanner's, a tallow-
chandler's, or the like; for though these are lawful and
necessary trades, yet they should be exercised in remote
places, for the rule is, "sic utere tuo, ut alicnnm non lacdas." 3
1. Post, Book 4. Cooley on Torts (Students' Ed.), ch.
2. See, as to ancient lights, ante, 17 ; Burdick on Torts, ch. 14. As to
Not applicable to this country. the degree of annoyance necessary to
3. So use your own as not to injure constitute a nuisance, see Cooley
another. Broom's Legal Maxims, (supra}. 571; St. Helen's Smelting
*327; 9 Rep. 59. Co. v. Tipping, 11 H. L. Cas. 642;
See, generally, as to nuisances, a. c. Big. Lead. Cases, 454; Susque-
CHAP. XIII.] OF XUISANCE. 525
This therefore is an actionable nuisance. So that the nui-
sances which affect a man's dwelling may be reduced to
these three: 1. Overhanging it, which is also a species of
trespass, for cnjns cst solum, cjnx c?tt uxtiiie ad coelum;*
2. Stopping ancient lights; and 3. Corrupting the air with
noisome smells; for light and air are two indispensable
requisites to every dwelling. But depriving one of a mere
matter of pleasure, as of a fine prospect by building a wall,
or the like, this, as it abridges nothing really convenient or
necessary, is no injury to the sufferer, and is therefore not
an actionable nuisance.
As to nuisance to one's lands: if one erects a smelt ing-
house for lead so near the land of another that the vapor
and smoke kill his corn and grass, and damage his cattle
therein, this is held to be a nuisance. And by consequence
it follows that if one does any other act, in itself lawful,
which yet being done in that place necessarily tends to the
damage of another's property, it is a nuisance; for it is
incumbent on him to find some other place to do that act
where it will be less offensive. [218] So also, if my neigh-
bor ought to scour a ditch, and does not, whereby my land
is overflowed, this is an actionable nuisance. 5
With regard to other corporeal hereditaments: it is a
nuisance to stop or divert water that uses to run to an-
other's meadow or mill; to corrupt or poison a watercourse
by erecting a dye-house or a lime-pit for the use of trade in
the upper part of the stream; or, in short, to do any act
therein that in its consequences must necessarily tend to the
prejudice of one 's neighbor. 6
2. As to incorporeal hereditaments, the law carries itself
with the same equity. If I have a way annexed to my
hanna Fertilizer Co. v. Malone, 73 even to heaven. This doctrine must
Md. 268 ; Bohan v. Port Jervis Gas now be taken with some reservations.
Lt. Co., 112 N. Y. 18. See Law Notes for July, 1914, 62;
That cannot, however, be a nuisance The Law of Motor Vehicles, by Mr.
which has been authorized by the leg- Berkeley Davids, 290, 291.
Hlature acting within constitutional 5. See preceding notes,
limits. Cooley on Torts (Students' 6. Cooley on Torts (Students' Ed.),
Ed.), 611. 578, 592, 593 and cases cited.
4. He who owns the land, owns also
526 OF XUISANCE. [BOOK III.
estate across another's land, and he obstructs me in the
use of it, either by totally stopping it or putting logs across
it or ploughing over it, it is a nuisance. 7
II. As to the remedies which the law has given for this
injury or nuisance, I must premise that the law gives no
private remedy for anything but a private wrong. [219]
Therefore no action lies for a public or common nuisance,
but an indictment only. Yet this rule admits of one excep-
tion, where a private person suffers some extraordinary
damage, beyond the rest of the king's subjects, by a public
nuisance, in which case he shall have a private satisfaction
by action. [220] As if, by means of a ditch dug across the
public way, which is a common nuisance, a man or his horse
suffer any injury by falling therein, there for this particular
damage, which is not common to others, the party shall
have his action. Also if a man hath abated, or removed, a
nuisance which offended him, in this case he is entitled to
no action. 8
The remedies by suit are, 1. By action on the case for
damages, in which the party injured shall only recover a
satisfaction for the injuries sustained, but cannot thereby
remove the nuisance. Indeed every continuance of a nui-
sance is held to be a fresh one, and therefore a fresh action
\vill lie, and very exemplary damages will probably be
given, if, after one verdict against him, the defendant has
the hardiness to continue it. 9
The law provided two other actions, the assize of nuisance and the
writ of quod permittat prosternere, 1 which not only give the plaintiff
satisfaction for his injury past, but also strikes at the root and remove
the cause itself, the nuisance that occasioned the injury. These two
actions, however, can only be brought by the tenant of the freehold, so
that a lessee for years is confined to his action upon the case. 2
7. See, generally, Cooley on Torts 9. See note below, also vol. 2 of
(Students' Ed.), ch. 12, pp. 351, 362. this series, title Injunction.
8. The abater may maintain an ac- 1. Because he permitted to throw
tion for the recovery of damages sus- down.
tained by him prior to the abatement, 2. Both these actions are obsolete,
notwithstanding such abatement. Lan- The preventive remedy is now by
sing v. Smith, 4 Wend. 9; Pierce v. injunction.
Dart, 7 Cow. 609; Gieason v. Gary,
4 Conn. 418.
CHAP. XIV.] OF WASTE. 527
CHAPTER XIV.
OF WASTE.
Waste is a spoil and destruction of the estate, either in
houses, woods, or lands, by demolishing not the temporary
profits only, but the very substance of the thing, thereby
rendering it wild and desolate. [223] Waste is either vol-
untary or permissive, the one by an actual and designed
demolition of the lands, woods, and houses; the other aris-
ing from mere negligence and want of sufficient care in
reparations, fences, and the like.
I. The persons who may be injured by waste are such as
have some interest in the estate wasted; for if a man be the
absolute tenant in fee-simple, without any incumbrance or
charge on the premises, he may commit whatever waste
his own indiscretion may prompt him to, without being
impeachable or accountable for it to any one. [224]
One species of interest which is injured by waste is that of a person
who has a right of common in the place wasted, especially if it be com-
mon of estovers, or a right of cutting and carrying away wood for house-
bote, plough-bote, etc.
But the most usual and important interest that is hurt
by this commission of waste is that of him who hath the
remainder or reversion of the inheritance., after a particular
estate for life or years in being. 1 Here, if the particular
tenant, be it the tenant in dower or by courtesy, who was
answerable for waste at the common law, or the lessee for
life or years, who was first made liable by the statutes of
Marlbridge .and of Gloucester, commits or suffers any
waste, it is a manifest injury to him that has the inherit-
ance. [225] To him, therefore, in remainder and reversion
to whom the inheritance appertains in expectancy, the law
hath given an adequate remedy. For he who hath the re-
mainder for life only is not entitled to sue for waste, since
his interest may never perhaps come into possession, and
then he hath suffered no injury.
1. See ante, Waste, and note.
528 OF WASTE. [BOOK III.
II. The redress for this injury of waste is of two kinds:
preventive and corrective; the former of which is by writ of
t, the latter by that of waste.
1. Estrepement 2 is an old French word signifying the same as waste
or .extirpation; and the writ of estrepement lay at the common law aftir
judgment obtained in any action real, and before possession was de-
livered by the sheriff, to stop any waste which the vanquished party be
tempted to commit in lands which were determined to be no longer his.
6ut as in some cases the demandant may be justly apprehensive that the
tenant may make waste or cstrepement pending the suit, well knowing
the weakness of his title, therefore the statute of Gloucester gave an-
other writ of estrepement pendente placito? commanding the sheriff firmly
to inhibit the tenant "e faciat vastum vel cstrepementum, pendente placito
tlicto indiscusso." * [226] And now in an action of waste [obsolete] itself
to recover the place wasted, and also damages, a writ of estrepement will
lie as well before as after judgment.
Besides this preventive redress at common law, the courts
of equity, upon bill exhibited therein complaining of waste
and destruction, will grant an injunction in order to stay
waste until the defendant shall have put in his answer,
and the court shall thereupon make further order; which
is now become the most usual way of preventing waste. 5
2. A writ of waste [obsolete; the remedy now is by an action on the
case] is also an action partly founded upon the common law, and partly
upon the statute of Gloucester, and may be brought by him who hath the
immediate estate of inheritance in reversion or remainder, against the
tenant for life, tenant in dower, tenant by courtesy, or tenant for years.
This action is also maintainable, in pursuance of statute Westm. 2, by
one tenant in common of the inheritance against another who makes
waste in the estate holden in common; the equity of which statute ex-
tends to joint tenants but not to coparceners, because by the old law
coparceners might make partition whenever either of them thought
proper, and thereby prevent future waste, but tenants in common and
joint-tenants could not, and therefore the statutes gave them this remedy,
compelling the defendant either to make partition and take the place
wasted to his own share, or to give security not to commit any further
waste.
2. This writ is still in use in Penn- 4. That he do not commit waste or
pylvania. See 1 Bouvier Law Diet., devastation during the pendency of
title Estrepement, 4; 122 Pa. St. the action.
78. 5. See vol. 2 of this series, title
3. Wast* pending the action. -Injunction.
CHAP. XIV.] OF WASTE. 520
This action of waste [obsolete] is a mixed action, partly real, so far
as it recovers land, and partly personal, so far as it recovers damages;
for it is brought for both those purposes. And if the waste be proved
the plaintiff shall recover the thing or place wasted, and also treble
damages, by the statute of Gloucester. 6 [228]
The defendant on the trial may give in evidence anything
that proves there was no waste committed, as that the de-
struction happened by lightning, tempest, the king's ene-
mies, or other inevitable accident. But it is no defence to
say that a stranger did the waste, for against him the plain-
tiff hath no remedy, though the defendant is entitled to
sue such stranger in an action of trespass vi^pt armis, and
shall recover the damages he has suffered in consequence
of such unlawful act.
6. The action of trespass on the
ease is the proper legal remedy of the
reversioner to recover his damages.
34
530 OF SUBTRACTION. [BOOK III.
CHAPTER XV.
OF SUBTRACTION.
Subtraction, which is the fifth species of injuries affecting
a man's real property, happens when any person who owes
any suit, duty, custom, or service to another, withdraws or
neglects to perform it. [230] It differs from a disseisin,
in that thi-s is committed without any denial of the right,
consisting merely of non-performance; that strikes at the
very title of the party injured, and amounts to an ouster
or actual dispossession.
Fealty, suit of court and rents are duties and services
usually issuing and arising ratione tenurae, being the con-
ditions upon which, the ancient lords granted out their
lands ":o their fetfdatories.
The general remedy for all these is by distress, and
it is the only remedy at the common law for the two first
of them. [231] A distress is the taking of beasts, or other
personal property, by way of pledge to enforce the perform-
ance of something due from the party distrained upon.
And for the most part it is provided that distresses be rea-
sonable and moderate; but in the case of distress for fealty
or suit of court, no distress can be unreasonable, immod-
erate, or too large, for this is the only remedy to which the
party aggrieved is entitled, and therefore it ought to be
such as is sufficiently compulsory.
The most usual other remedy, when recourse is had to
any action at all for the recovery of pecuniary rents, is by
action of debt for the breach of the express contract.
CIIAP. XVI.] OF DISTURBANCE. 531
CHAPTER XVI.
OF DISTURBANCE.
The sixth and last species of real injuries is that of dis-
turbance, which is usually a wrong done to some incorporeal
hereditament, by hindering or disquieting the owners in
their regular and lawful enjoyment of it. [236] I shall
consider five sorts of this injury: viz., 1. Disturbance of
franchises; 2. Disturbance of common; 3. Disturbance of
ways; 4. Disturbance of tenure; 5. Disturbance of patronage.
I. Disturbance of franchises happens when a man has the franchise
of holding a court-leet, of keeping a fair or market, of free-warren, of
taking toll, of seising waifs or estrays, or (in short) any other species
of franchise whatsoever, and he is disturbed or incommoded in the law-
ful exercise thereof. To remedy which, as the law has given no other
writ, he is therefore entitled to sue for damages by a special action on
the case, or in case of toll, may take a distress if he pleases. [237]
II. The disturbance of common is where any act is done by which the
right of another to his common is incommoded or diminished; [the
remedies for which are either by distress, action of trespass, or special
action on the case, according to the circumstances of the case. For
details see text.]
III. Disturbance of ways is very similar in its nature to the last; it
principally happening when a person who hath a right to a way over
another's grounds, by grant or prescription, is obstructed by inclosures
or other obstacles, or by ploughing across it; by which means he can-
not enjoy his right of way, or at least not in so commodious a manner
as he might have done. [241] If this be a way annexed to his estate,
and the obstruction is made by the tenant of the land, this brings it to
another species of injury, for it is then a nuisance for which an assise
will lie, as mentioned in a former chapter. But if the right of way thus
obstructed by the tenant be only in gross (that is, annexed to a man's
person and unconnected with any lands or tenements), or if the obstruc-
tion of a way belonging to a house or land is made by a stranger, it is
then in either case merely ^a disturbance; for the obstruction of a way
in gross is no detriment to any lands or tenements, and therefore does
not fall under the legal notion of a nuisance, which must be laid ad
nocnmentum liberi tenement!,* and the obstruction of it by a stranger
can never tend to put the right of way in dispute; the remedy, therefore.
1. To the damage of the freehold.
.532 OF DISTURBANCE. [BOOK III.
for these disturbances is not by assise or any real action, but by the
universal remedy of-action on the case to recover damages. [242]
IV. The fourth species of disturbance is that of disturbance of tenure,
or breaking that connection which subsists between the lord and his
tenant, and to which the law pays so high a regard that it will not suffer
it to be wantonly dissolved by the act of a third person. To have an
estate well tenanted is an advantage that every landlord must be very
sensible of, and therefore the driving away of a tenant from off his
estate is an injury of no small consequence. So that if there be a ten-
ant at will of any lands or tenements, and a stranger either by menaces
and threats, or by unlawful distresses, or by fraud and circumvention,
or other means, contrives to drive him away or inveigle him to leave
his tenancy, this the law very justly construes to be a wrong and injury
to the lord, and gives him a reparation in damages against the offender
by a special action on the case.
V. The fifth species of disturbance is that of disturbance of patronage,
which is an hindrance or obstruction of a patron to present his clerk
io a oenence. [Not applicable to this country. As to the remedies by
writ of quare impedit, etc., see the text.]
CHAP. XVII. ] OF INJURIES BY OR TO THE CROWN. 533
CHAPTER XVII.
OF INJURIES PROCEEDING FROM OR AFFECTING THE CROWN.
I. That the king can do no wrong 1 is a necessary and
fundamental principle of the English constitution, meaning
only that in the first place whatever may be amiss in the
conduct of public affairs is not chargeable personally on
the king, nor is he, but his ministers, accountable for it to
the people; and secondly, that the prerogative of the crown
extends not to do any injury; for, being created for the
benefit of the people, it cannot be exerted to their prejudice.
[255] Whenever, therefore, it happens that by misinfor-
mation or inadvertence the crown hath been induced to
invade the private rights of any of its subjects, though no
action will lie against the sovereign, yet the law hath fur-
nished the subject with a decent and respectful mode of
removing that invasion, by informing the king of the true
state of the matter in dispute; and as it presumes that to
know of any injury and to redress it are inseparable in the
royal breast, it then issues as of course, in the king's own
name, his orders to his judges to do justice to the party
aggrieved.
It rarely can happen that any personal injury can im-
mediately and directly proceed from the prince to any pri-
vate man; and as it can so seldom happen, the law in de-
cency supposes that it never will or can happen at all,
because it feels itself incapable of furnishing any adequate
remedy without infringing the dignity and destroying the
sovereignty of the royal person, by setting up some su-
perior power with authority to call him to account. But
injuries to the rights of property can scarcely be committed
by the crown without the intervention of its officers, for
whom the law in matters of right entertains no respect or
delicacy, but furnishes various methods of detecting the
errors or misconduct of those agents by whom the king
1. Rcf now potest percare. 2 Roll.
Rep. 304; Broom's Legal Maxims, *51.
534 OF INJURIES BY OR TO THE CROWN. [Boox III.
lias been deceived and induced to do a temporary injus-
tice. 2
The common law methods of obtaining possession or restitution from
the crown of either real or personal property are: 1. By petition dc droit,
or petition of right. [256] 2. By monstrans de droit, manifestation or
plea of right, both of which may be preferred or prosecuted either in
the Chancery or Exchequer. [Not applicable to this country.] The for-
mer is of use where the king is in full possession of any hereditaments
or chattels, and the petitioner suggests such a right as controverts the
title of the crown, grounded on facts disclosed in the petition itself,
in which case he must be careful to state truly the whole title of the
crown, otherwise the petition shall abate, and then, upon this answer
being endorsed or underwritten by the king, soit droit fait al partie (let
right be done to the party), a commission shall issue to inquire of the
truth of this suggestion; after the return of which the king's attorney
is at liberty to plead in bar, and the merits shall be determined upon
issue or demurrer, as in suits between subject and subject. But where
the right of the party, as well as the right of the crown, appears upon
record, there the party shall have monstrans de droit, which is putting
in a claim of right grounded on facts already acknowledged and estab-
lished, and praying the judgment of the court, whether upon those facts
the king or the subject hath the right. But as this seMom happens, and
the remedy by peiition was extremely tedious and expensive, that by
monstrans was much enlarged and rendered almost universal by several
statutes, particularly 36 Edw. III. c. 13, and 2 & 3 Edw. VI. c. 8, which,
also allow inquisitions of office* to be traversed or denied wherever the
right of a subject is concerned, except in a very few cases. [257] These
proceedings are had in the petty-bag office in the Court of Chancery;
and if upon either of them the right be determined against the crown,
the judgment is, quod manus domini regis atnoveanlur et possessio rcstituatur
petenti, salvo jure domini regis, which last clause is always added to
judgments against the king, to whom no laches is ever imputed, and
whose right (till some late statutes) was never defeated by any limita-
tion or length of time. And by such judgment the crown is instantly out
of possession, so that there needs not the indecent interposition of his
own officers to transfer the seisin from the king to the party aggrieved.
II. The methods of redressing such injuries as the crown
may receive from the subject are,
1. By such usual common law actions as are consistent
2. Unless by statute or constitution state is by petition. Cooley's Const,
an action against the state is per- Lim. (7th Ed.), 23.
mitted, the only remedy against a
CHAP. XVII.] OF INJURIES BY OR TO THE CROWN. 535
with the royal prerogative and dignity. 3 As, therefore, the
king, by reason of his legal ubiquity, cannot be disseised
or dispossessed of any real property which is once vested
in him, he can maintain no action which supposes a dis-
possession of the plaintiff, such as an assise or an ejectment ;
but he may bring a quare impedit, and he may prosecute
this writ, like every other by him brought, as well in the
King's Bench as the Common Pleas, or in whatever court
he pleases. So too he may bring an action of trespass for
taking away his goods; but such actions are not usual
(though in strictness maintainable) for breaking his close,
or other injury done upon his soil or possession.
2. Inquisition or inquest of office, which is an inquiry
made by the king's officer, his sheriff, coroner, or escheator,
virtute officii* or by writ to them sent for that purpose, or
by commissioners specially appointed, concerning any mat-
ter that entitles the king to the possession of lands or tene-
ments, goods or chattels. [258] This is done by a jury of
no determinate number, being either twelve, or less, or
more.
These inquests of office were devised by law as an authentic means to
give the king his right by solemn matter of record, without which he in
general can neither take nor part from anything. [259] With regard to
real property, if an office be found for the king, it puts him in immediate
possession without the trouble of a formal entry, provided a subject in
the like case would have had a right to enter, and the king shall re-
ceive all the mesne or intermediate profits from the time that his title
accrued. [260] In order to avoid the possession of the crown acquired
by the finding of such office, the subject may not only have his petition
of right, which discloses new facts not found by the office, and his
mcnstrans de droit, which relies on the facts as found, but also he may
(for the most part) traverse or deny the matter of fact itself, and put it
in a course of trial by the common law process of the Court of Chancery;
3. A state may sue a private person 4. By virtue of his office.
or a corporation in its own courts or An inquest of office, or office found,
the courts of another state in the is a not uncommon means of enforc-
same manner as an individual. As ing a forfeiture of real estate to the
to controversies to which the United state or of enforcing an escheat of
States is a party or between two or lands in the several states. Consult
mere states, see Cooley Const. Lim. the local statutes. See 1 Bouvier Law
(7th Ed.), 23. Diet., Inquest, 1, 2.
536 OF INJURIES BY OR TO THE CROWN. [Booic III.
yet still, in sdme special cases, he hath no remedy left but a mere peti-
tion of right. These traverses as well as the monstrans de droit were
greatly enlarged and regulated for the benefit of the subject by the
statutes before mentioned and others. And in the traverses thus given
by statute, which came in the place of the old petition of right, the party
traversing is considered as the plaintiff, and must therefore make out his
own title as well as impeach that of the crown, and then shall have
judgment quod manus domini regis amoveantur, etc.
3. Where the crown hath unadvisedly granted anything
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, the remedy to repeal the patent is by writ of
scire facias 5 in Chancery. [261] This may be brought
either on the part of the king in order to resume the thing
granted, or if the grant be injurious to a subject the king
is bound of right to permit him (upon his petition) to use
his royal name for repealing the patent in a scire facias.
And so also if upon office untruly found for the king he
grants the land over to another, he who is grieved thereby,
and traverses the office itself, is entitled before issue joined
to a scire facias against the patentee, in order to avoid the
grant.
4. An information on behalf of the crown, filed in the
Exchequer by the king's Attorney-General, is a method of
suit for recovering money or other chattels, or for obtain-
ing satisfaction in damages for any personal wrong com-
mitted in the lands or other possessions of the crown. It
differs from an information filed in the Court of King's
Bench (of which we shall treat in the next book), in that
this is instituted to redress a private wrong by which the
property of the crown is affected, that is calculated to punish
some public wrong or heinous misdemeanor in the defendant.
It is grounded on no writ under seal, but merely on the inti-
5. This is a judicial writ founded Diet., scire facias ; Graham's Practice,
upon a record requiring the defendant 649; 2 Tidd's Prac. 982; 2 Arch,
to show cause why the plaintiff should Prac. 76: 1 Green's New Prac. ch.
not have the advantage of such record 15, sec. 1, p. *669; Puterbiirgh's Com.
or why the record should not be an- Law, Plead. & Prac. (7th Kd.), ch. 15.
nulled and vacated. 1 Bouvier Law
CHAP. XVII.] OF INJURIES BY OR TO THE CROWJT. 537
mation of the king's officer, the Attorney-General, who
"gives the court to understand and be informed of" the
matter in question, upon which the party is put to answer,
and trial is had as in suits between subject and subject. The
most usual informations are those of intrusion and debt:
intrusion for any trespass committed on the lands of the
crown, as by entering thereon without title, holding over
after a lease is determined, taking the profits, cutting down
timber, or the like; and debt upon any contract for moneys
due to the king, or for any forfeiture due to the crown upon
the breach of a penal statute. This is most commonly used
to recover forfeitures occasioned by transgressing those laws
which are enacted for the establishment and support of the
revenue; others which regard mere matters of police and
public convenience being usually left to be enforced by com-
mon informers in the qui tarn informations or actions of
which we have formerly spoken. [262] But after the At-
torney-General has informed upon the breach of a penal
law, no other information can be received. There is also
an information in rem when any goods are supposed to be-
come the property of the crown and no man appears to
claim them or to dispute the title of the king; as anciently
in the case of treasure-trove, wrecks, waifs, and estrays
seized by the king's officer for Ms use. Upon such seizure
an information was usually 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 same time
there issued a commission of appraisement to value the
goods in the officer's hands; after the return of which, and
a second proclamation had, if no claimant appeared the
goods were supposed derelict, and condemned to the use of
the crown. And when in later times forfeitures of the
goods themselves, as well as personal penalties on. the
parties, were inflicted by act of parliament for transgres-
sions against the laws of the customs and excise, the same
process was adopted in order to secure such forfeited goods
for the public use, though the offender himself had escaped
the reach of justice. \
538 OF INJURIES BY OR TO THE CROWN. [BOOK III.
5. A writ of quo warranto 6 is in the nature of a writ of
right for the king against him who claims or usurps any
office, franchise, or liberty, to inquire by what authority he
supports his claim, in order to determine the right. It lies
also in case of non-user or long neglect of a franchise, or
mis-user or abuse of it, being a writ commanding the de-
fendant to show by what warrant he exercises such a fran-
chise, having never had any grant of it, or having forfeited
it by neglect or abuse. Writs of quo warranto (if brought
at all) must now be prosecuted and determined before the
king's justices at Westminster. [263] And in case of judg-
ment for the defendant, he shall have an allowance of his
franchise; but in case of judgment for the king, for that
the party is entitled to no such franchise, or hath disused
or abused it, the franchise is either seized into the king's
hands, to be granted out again to whomever he shall please,
or if it be not such a franchise as may subsist in the hands
of the crown, there is merely judgment of ouster, to turn
out the party who usurped it.
A more modern method of prosecution is by information
filed in the Court of King 's Bench by the Attorney-General,
in the nature of a writ of quo warranto 7 wherein the process
is speedier and the judgment not quite so decisive. . This is
properly a criminal method of prosecution, as well to punish
the usurper by a fine for the usurpation of the franchise, as
to oust him or seize it for the crown, but hath long been
applied to the mere purposes of trying the civil right, seiz-
ing the franchise, or ousting the wrongful possessor, the
fine being nominal only.
This proceeding is now applied to the decision of cor-
poration disputes between party and party, without any
intervention of the prerogative, by virtue of the statute 9
Anne, c. 20, which permits an information in nature of quo
6. By what warrant or authority. or the right to exercise the franchise
See next note below. of being a corporation. Consult the
7. This is in this country the com- local statutes. See, also, Puterburgh's
won method, where not changed by Com. Law, Plead. & Prac. JTth Ed.),
statute, as it has been in many in- ch. 18, p. 565; 1 Green's New Pra.
stances, of trying the title to an office *16.
CHAP. XVII. ] OF INJUEIES BY OR TO THE CROWN". 539
warranto to be brought with leave of the court, at the
relation of any person desiring to prosecute the same (who
is then styled the relator), against any person usurping,
intruding into, or unlawfully holding any franchise or office
in any city, borough, or town corporate, provides for its
speedy determination, and directs that if the defendant be
convicted judgment of ouster (as well as a fine) may be
given against him, and that the relator shall pay or receive
costs according to the event of the suit. [264]
6. The writ of mandamus is also made by the same stat-
ute, 9 Anne, c. 20, a most full and effectual remedy, in the
first place for refusal of admission where a person is en-
titled to an office or place in any such corporation, and
secondly, for wrongful removal when a person is legally
possessed. 8
8. See ante, *350 and note.
540
REMEDY BY ACTION.
[BOOK 111.
CHAPTER XVIII.
OP THE PURSUIT OF REMEDIES BY ACTION, AND FIRST, OF THE
ORIGINAL WRIT.
In treating of remedies by action at common law, I shall
confine myself to the modern method of practice in our
courts of judicature 1 [271]; and what the student may
expect in this and the succeeding chapters is an account of
the method of proceeding in and prosecuting a suit upon
any of the personal writs we have before spoken of in the
Court of Common Pleas at Westminster, that being the
court originally constituted for the prosecution of all civil
actions. 1 In giving an abstract or history of the progress
of a suit through the Court of Common Pleas, 2 we shall at
1. In the United States, imprison-
ment for debt being generally abol-
ished, the most usual method of com-
mencing an action is by summons is-
sued out of and returnable to the
court which is to try the cause. In
cases of tort and in some cases of
debts fraudulently contracted, upon
making affidavit of the facts and ob-
taining an order to hold to bail a
suit may in some states be commenced
by capias. No original writ, in the
sense used by the author, is in use in
this country.
Actions may, in some states, be
commenced in several ways. Thus in
Michigan in a case in which an arrest
would be warranted by law, the ac-
tion may be commenced by an ordi-
nary summons, by the entry of a rule
to plead and service of the declaration
with notice of such rule indorsed
thereon and upon obtaining the proper
order, filing bonds, etc., by a capias
or an attachment. In many states
actions arc begun by filing a petition
and the issuance of a summons, or
by serving a copy of the petition.
In the federal district courts, except
in admiralty and equity cases, the
same pleading and practice prevails
as in the state in which the court is
held, as nearly as may be applicable.
Rev. Stat. U. S., sees. 914-916.
The student should consult the local
statutes and books of practice. The
method set forth in the text should
be studied, as it is the foundation of
more modern practice and necessary
to its full understanding.
2. The student will do well to read
the following remarks of our au-
thor found in his note to page *271:
'' In deducing this history the student
must not expect authorities to be con-
stantly cited; as practical knowledge
is not so much to be learned from any
books of law, as from experience and
attendance on the courts. The com-
piler must therefore be frequently
obliged to rely upon his own obser-
vations: which in general he hath
been studious to avoid where those of
any other might be had. To accom-
CHAP. XVIII.] REMEDY BY ACTION. 541
the same time give a general account of the proceedings of
the other two courts; taking notice, however, of any con-
siderable difference in the local practice of each. [272]
The general and orderly parts of a suit are these : 1. The
original Writ. 2. The process. 3. The pleadings. 4. The
issue or demurrer. 5. The trial. 6. The judgment and its
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 of the suit. When a person hath
received an injury and thinks it worth his while to demand
a satisfaction for it, he is to -consider with himself or take
advice what redress the law has given for that injury, and
thereupon is to make application or suit to the crown, the
fountain of all justice, for that particular specific remedy
which he is determined or advised to pursue. [273] To
this end he is to sue out, or purchase by paying the stated
fees, an original, or original writ, from the Court of Chan-
cery, which is the offtcina justitiae, the shop or mint of jus-
tice, wherein all the king's writs are framed. It is a man-
datory letter from the king in parchment, sealed with his
great seal, and directed to the sheriff of the county wherein
pany and illustrate these remarks, (like the rest of his posthumous
such gentlemen as are designed for the works) it has suffered most grossly
profession will find it necessary to by ignorant or careless transcribers,
peruse the books of entries, ancient yet it has traced out the reason of
and modern; which are transcripts of many parts of our modern practice
proceedings that have been had in from the feodal institutions and the
some particular actions. A book or primitive construction of our courts,
two of technical learning will also be in a most clear and ingenious man-_
found very convenient; from which a ner."
man of liberal education and tolerable The student may also, when exam-
understanding may glean pro re nata ining a question of common law prac-
as much as is sufficient for his pur- tice or procedure, consult with profit,
pose. These 6oo/cs of practice, as they Tidd's Practice; Chitty's General
are called, are all pretty much on a Practice; Graham's (N. Y.) Practice;
level, in point of composition and solid Burrill's (N. Y.) Practice; Puter-
instruction; so that that which bears burgh's Com. Law, Plead. & Practice
the latest edition is usually the best. (7th Ed.) ; Green's New Practice, and
But Gilbert's history and practice of Hughe's Federal Procedure. The local
the court of common pleas is a book statutes and works on Practice should
of a very different stamp ; and though of course always be consulted.
542 REMEDY BY ACTION. [BOOK III.
the injury is committed or supposed so to be, requiring him
to command the wrong-doer -or party accused either to do
justice to the complainant, or else to appear in court and
answer the accusation against him. Whatever the sheriff
does in pursuance of this writ he must return or certify to
the Court of Common Pleas, together with the writ itself,
which is the foundation of the jurisdiction of that court,
being the king's warrant for the judges to proceed to the
determination of the cause. 3
Original writs are either optional or peremptory, or, in the language
of our lawyers, they are either a praecipe or a si te fecerit securum. [274]
The praecipe is in the alternative, commanding the defendant to do the
thing required, or show the reason wherefore he hath not done it. The
use of this writ is where something certain is demanded by the plaintiff
which it is incumbent on the defendant himself to perform. The other
species of original writs is called a si fecerit te securum, from the words
of the writ, which directs the sheriff to cause the defendant to appear
in court without any option given him, provided the plaintiff gives the
sheriff security effectually to prosecute his claim. This writ is in use
where nothing is specifically demanded, but only a satisfaction in gen-
eral, to obtain which and minister complete redress the intervention of
some judicature is necessary. Such are writs of trespass or on the case,
wherein no debt or other specific thing is sued for in certain, but only
damages to be assessed by a jury. Both species of writs are tested 4 or
witnessed in the king's own name, " witness ourselves at Westminster,"
or wherever the Chancery may be held. The security here spoken of to
be given by the plaintiff for prosecuting his claim, is common to both
writs, though it gives denomination only to the latter. [275] The whole
of it is at present become a mere matter of form, and John Doe and
Richard Roe are always returned as the standing pledges for this purpose.
The day on which the defendant is ordered to appear in court, and on
which the sheriff is to bring in the writ and report how far he has obeyed
it, is called the return of the writ, it being then returned by him to (he
king's justices at Westminster.5 And it is always made returnable at
the distance of at least fifteen days from the date or teste, that the de-
fendant may have time to come up to Westminster, even from the most
3. Original writs are no longer used and signed by the sheriff, marshal or
in this country. other officer authorized by law to
4. The tcste of any writ is import- make the service. If served by a dep-
*uit even now. Consult the statutes uty the return should be signed in
and constitution. the name of his principal by himself
Jj. The return to the writ as to the as deputy,
manner of service is indorsed thereon
CHAP. XVIII. ] REMEDY BY ACTION. 543
remote parts of the kingdom, and upon some day in one of the four
terms in which the court sits for the despatch of business.
There are in each of these terms stated days called days in bank,
dies in banco, that is, days of appearance in the court of common bench.
[277] They are generally at the distance of about a week from each
other, and have reference to some festival of the Church. On some one
of these days in bank all original writs must be made returnable, and
therefore they are generally called the returns of that term. But though
many of the return days are fixed upon Sundays, yet the court never
sits to receive these returns till the Monday after, and therefore no pro-
ceedings can be held or judgment can be given, or supposed to be given,
on the Sunday.
The first return in eyery term is, properly speaking, the first day in
that term. [278] And thereon the court sits to take essoigns, or excuses
for such as do not appear according to the summons of the writ; where-
fore this is usually called the essoign day of the term. But on every re-
turn-day in the term the person summoned has three days of grace
beyond the day named in the writ in which to make his appearance;
and if he appears on the fourth day inclusive, quarto die post, it is suffi-
cient. Therefore at the beginning of each term the court does not usually
sit for despatch of business till the fourth or appearance day.
5-14 OF PKOCESS. [BOOK III.
CHAPTER XIX.
OF PROCESS.
The next step for carrying on the suit, after suing out
the original, is called the process, being the means of com-
pelling the defendant to appear in court. 1 [279] This is
sometimes called original process, being founded upon the
original writ, and also to distinguish it from mesne, or in-
termediate process, which issues, pending the suit upon
some collateral interlocutory matter, as to summon juries,
witnesses, and the like. Mesne process is also sometimes
put in contradistinction to final process, or process of execu-
tion, and then it signifies all such process as intervenes be-
tween the beginning and end of a suit.
But process, as we are now to consider it, is the method taken by the
law to compel a compliance with the original writ, of which the primary
step is by giving the party notice to obey it. This notice is given upon
all real praecipes, and also upon all personal writs for injuries not against
the peace, by summons, which is a warning to appear in court at the
return of the original writ, given to the defendant by two of the sheriff's
messengers, called summoners, either in person or left at his house or
land.
If the defendant disobeys this verbal monition, the next process is by
writ of attachment,- or pone, sc called from the words of the writ, " pone
per vadium et salvos plegios, put by gage and safe pledges A. B. the de-
fendant, etc." [280] This is a writ not issuing 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
sheriff is commanded to attach him, by taking gage, that is, certain of his
goods, which he shall forfeit if he doth not appear, or by making him
find safe pledges or sureties, who shall be amerced in case of his non-
appearance. This is also the first and immediate process, without any
previous summons, upon actions of trespass vi et armis or for other in-
juries, which, though not forcible, are yet trespasses against the peace,
as deceit and conspiracy,
1. In this country process to compel the plaintiff's demand, and judgment
an appearance, in the sense of the may be taken against him by default,
author, is not in use, but if the de- 2. This is not the statutory writ of
fendant does not appear, but makes attachment so commonly used against
default, he is regarded as confessing fraudulent debtors.
CHAP. XIX.J OF PROCESS. 545
If after attachment the defendant neglects to appear, he not only for-
feits this security, but is moreover to be further compelled by writ of
distringas, or distress infinite, which is a subsequent process issuing from
the Court of Common Pleas, commanding the sheriff to distrain the de-
fendant from time to time, and continually afterwards, by taking his
goods and the profits of his lands, which are called issues, and which
by the common law he forfeits to the king if he doth not appear. But
now the issues may be sold, if the court shall so direct, in order to de-
fray the reasonable costs of the plaintiff.
And here by the common as well as the civil law the process ended in
case of injuries without force. [281] But in case of injury accompanied
with force, the law, to punish the breach of the peace and prevent its
disturbance for the future, provided also a process against the defend-
ant's person in case he neglected to appear upon the former process of
attachment or had no substance whereby to be attached, subjecting his
body to imprisonment by the writ of capias ad respoudendum. 3 But
this immunity of the defendant's person, in case of peaceable though
fraudulent injuries, producing great contempt of the law in indigent
wrongdoers, a capias was also allowed to arrest the person in actions of
account, though no breach of the peace be suggested, by the statutes of
Marlbridge, 52 Hen. III. c. 23, and We&tm. 2, 13 Edw. I. c. 11, in actions of
debt and detinue by statute 25 Edw. III. c. 17, and in all actions on the case
by statute 19 Hen. VII. c. 9.
If, therefore, the defendant, being summoned or attached, makes de-
fault and neglects to appear, or if the sheriff returns a nihil, or that the
defendant hath nothing whereby he may be summoned, attached, or dis-
trained, the capias now usually issues, being a writ commanding the
sheriff to take the body of the defendant if he may be found in his baili-
wick or county, and him safely to keep, so that he may have him in
court on the day of the return to answer to the plaintiff of a plea of
debt or trespass, etc., as the case may be. [282] This writ and all others
subsequent to the original writ not issuing out of Chancery, but from the
court into which the original was returnable, and being grounded on
what has passed in that court in consequence of the sheriff's return, are
called judicial, not original, writs. They issue under the private seal
of that court and not under the Great Seal of England, and are tested,
not in the king's name, but in that of the chief (or, if there be no chief,
of the senior) justice only. 4 And these several writs being grounded on
3. Take to answer. dated on the day it issues, be sealed
4. See the constitution and local with the seal of the court from which
statutes as to teste, etc., of writs. it issues and made returnable on the
For example, in Michigan (Const., first day of the next succeeding term,
art. 6, sec. 35), process must run "In It must be directed to the sheriff
the name of the people of the state of the same county ; or, if the sheriff
of Michigan," be tested in the name is a party to the suit, then to the
of the circuit judge, and must be coroner, etc. See 1 Green's New Pra-
546 OF PROCESS. [Boox III.
the sheriff's return, must respectively bear date the same day on which
the writ immediately preceding was returnable.
This is the regular and ordinary method of process. But it is now
usual in practice to sue out the capias in the first instance, upon a sup-
posed return of the sheriff, especially if it be suspected that the defend-
ant, upon notice of the action, will abscond; and afterwards a fictitious
original is drawn up, if the party is called upon so to do, with a proper
return thereupon, in order to give the proceedings a color of regularity.
When this capias is delivered to the sheriff, he by his under-sheriff grants
a warrant to his inferior officers or bailiffs to execute it on the defendant.
And if the sheriff of Oxfordshire (in which county the injury is supposed
to be committed and 'the action is laid) cannot find the defendant in his
jurisdiction, he returns that he is not found, non est inventus, 5 in his
bailiwick, whereupon another writ issues, called a testatum capias,
directed to the sheriff of the county where the defendant is supposed
to reside, as of Berkshire, reciting the former writ, and that it is testified
(testatum est) that the defendant lurks or wanders in his bailiwick,
whefefore he is commanded to take him as in the former capias. [283]
But here, also, when the action is brought in one county and the de-
fendant lives in another, it is usual, for saving trouble, time, and ex-
pense, to make out a testatum capias at the first, supposing not only an
original but a. former capias to have been granted, which in fact never
was. And this fiction, being beneficial to all parties, is readily acquiesced
in, and is now become the settled practice.
But "where a defendant absconds, and the plaintiff would proceed to an
outlawry against him, an original writ must then be sued out regularly,
and after that, a capias. [Outlawry in civil cases is abolished in this
country.] And if the sheriff cannot find the defendant upon the first
writ of capias, and return a non est inventus, there issues out an alias 6
writ, and after that a pluries, 7 to the same effect as the former, only
after these words, "we command you," this clause is inserted: "as we
have formerly," or, " as we have often commanded you " (" sicut alias,"
or "sicut pluries, praecipimus ") . And if a non est inventus is returned
upon all of them, then a writ of exigent, or exigi facias,* may be sued
out, which requires the sheriff to cause the defendant to be proclaimed,
required, or exacted in five county courts successively to render him-
self, and if he does, then to take him as in a capias; but if he does not
appear, and is returned guinto cxactus? he shall then be outlawed by the
coroners of the county. Also, by statutes 6 Hen. VIII. c. 4, and 31 Eliz.
c. 3, whether the defendant dwells within the same or another county
than that wherein the exigent \& sued out, a "writ of proclamation shall
tice, 107; Puterburgh Com. Law, 5. He has not been found.
Plead. & Prac. (7th Ed.), 22; Const. 6. Another.
111., art. 6, sec. 33; Parris v. People, 7. Several.
76 111. 274; Sidewell v. Schumacher, 8. Cause to be required.
99 id. 426. 9. Called the fifth time.
CHAP. XIX.] Or PKOCESS. 547
issue out at the same time with the exigent, commanding the sheriff of
the county wherein the defendant dwells to make three proclamations
thereof in places the most notorious and most likely to come to his
knowledge a month before the outlawry shall take place. [284] Such
outlawry is putting a man out of the protection of the law, so that he is
incapable to bring an action for redress of injuries, and it is also at-
tended with a forfeiture of all one's goods and chattels to the king. If
after outlawry the defendant appears publicly, he may be arrested by a
writ of capias utlagatum 1 and committed till the outlawry be reversed;
which reversal may be had by the defendant's appearaing personally in
court or by attorney (though in the King's Bench he could not appear
by attorney till permitted by statute 4 & 5 W. & M. c. 18), and any
plausible cause, however slight, will in general be sufficient to reverse
it, it being considered only as a process to compel an appearance. But
then the defendant must pay full costs, and put the plaintiff in the same
condition as if he had appeared before the writ of exigi facias was
awarded.
Such is the first process in the Court of Common Pleas. In the King's
Bench they may also (and frequently do) proceed in certain causes, par-
ticularly in actions of ejectment and trespass, by original writ, with
attachment and capias thereon, returnable, not at Westminster, where the
Common Pleas are now fixed in consequence of Magna Garta, but
" ubicunque fuerimus in Anglia," 2 wheresoever the king shall then be in
England. [285] But the more usual method of proceeding therein is
without any original, but, by a peculiar species of process entitled a bill
of Middlesex, and therefore so entitled because the court now sits in
that county; for if it sat in Kent, it would then be a bill of Kent. The
bill of Middlesex, which was formerly always founded on a plaint of
trespass quare clausum fregit* entered on the records of the court, is a
kind of capias directed to the sheriff of that county, and commanding
him to take the defendant and have him before our lord the king at
Westminster on a day prefixed to answer to the plaintiff of a plea of
trespass. For this accusation of trespass it is that gives the Court of
King's Bench jurisdiction in other civil causes, as was formerly ob-
served, since when once the defendant is taken into custody of the mar-
shal or prison-keeper of this court for the supposed trespass, he, being
then a prisoner of this court, may here be prosecuted for any other
species of injury. Yet in order to foun^l this jurisdiction it is not neces-
sary that the defendant be actually the marshal's prisoner, for as soon
as he appears or puts in bail to the process he is deemed by so doing
to be in such custody of the marshal as will give the court a jurisdiction
to proceed. [286] And upon these accounts in the bill or process a
complaint of trespass is always suggested, whatever else may be the
real cause of action. This bill of Middlesex must be served on the de-
1. Take the outlaw. 3. Wherefore he broke and entered.
2. Wherever we are in England.
548 OF PROCESS. [BOOK III.
fendant by the sheriff if he finds him in that county, but if he returns
" non est iitvenlus," then there issues out a writ of lath at to the sheriff
of another county, as Berks, which is similar to the testa turn capias in,
the Common Pleas, and recites the bill of Middlesex and the proceed-
ings thereon, and that it is testified that the defendant " latitat et dis-
t-itn-it,'' lurks and wanders about in Berks, and therefore commands the
sheriff to take him and have his body in court on the day of the return.
But as in the Common Pleas the ti'statum capias may be sued out upon
only a supposed and not an actual preceding capias, so in the King's
Bench a latitat is usually sued out upo*n only a supposed and not an
actual Ull of Middlesex. So that in fact a latitat may be called the first
process in the Court of King's Beach, as the tcstatum capias is in the
Common Pleas. Yet, as in the Common Pleas, if the defendant lives
in the county wherein the action is laid, a common capias suffices; so in
the King's Bench, likewise, if he lives in Middlesex, the process must
still be by bill of Middlesex only.
In the Exchequer the first process is by writ of quo minus, in order
to give the court a jurisdiction 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 injury complained of, quo
minus sufficiens exisit,* by which he is the less able to pay the king his
rent or debt. And upon this the defendant may be arrested as upon a
capias from the Common Pleas.
Thus differently do the three courts set out at first in the commence-
ment of a suit. Afterwards, when the cause is f once drawn into the re-
spective courts, the method of pursuing it is pretty much the same in
all of them.
If the sheriff has fouud the defendant upon any of the former writs
the capias, latitat, etc. he was anciently obliged to take him into cus-
tody, in order to produce him in court upon the return, however small
and minute the cause of action might be. [287] For, not having obeyed
the original summons, he had shown a contempt of the court, and was
no longer to be trusted at large. But when the summons fell into disuse,
and the capias became in fact the first process, it was thought hard to
imprison a man for a contempt which was only supposed, and therefore
in common cases, by the gradual indulgence of the courts (at length
authorized by statute 12 Geo. I. c. 29, which was amended by 5 Geo. II.
c. 27, made perpetual by 21 Geo. ^11. c. 3, and extended to all inferior
courts' by 19 Geo. III. c. 70), the sheriff or proper officer can now only
personally serve the defendant with the copy of the writ or process, and
with notice in writing to appear by his attorney in court to defend this
action, which in effect reduces it to a mere summons. And if the de-
fendant thinks proper to appear upon this notice, his appearance is
recorded, and he puts in sureties for his future attendance and obedi-
4. By which less than enough re-
mains.
CHAP. XIX.] OF PROCESS. 549
ence; which sureties are called common bail, being the same two im-
aginary persons that were pledged for the plaintiff's prosecution, John
Doe and Richard Roe. Or, if the defendant does not appear upon the
return of the writ, or within four (or, in some cases, eight) days after,
the plaintiff may enter an appearance to him as if he had really appeared,
and may file common bail in the defendant's name, and proceed there-
upon as if the defendant had done it himself.
But if the plaintiff will make affidavit, or assert upon oath, that the
cause of action amounts to ten pounds or upwards, then he may arrest
the defendant and make him put in substantial sureties for his appear-
ance, called special bail; 3 in order to which it is required by statute 13
Car. II. st. 2, c. 2, that the true cause of action should be expressed in
the body of the writ or process, else no security can be taken in a
greater sum than 40'. This statute (without any such intention in the
makers) had like to have ousted the King's Bench of all its jurisdiction
over civil injuries without force; for, as the bill of Middlesex was framed
only for actions of trespass, a defendant could not be arrested and held
to bail thereupon for breaches of civil contracts. [288] But to remedy
this inconvenience the officers of the King's Bench devised a method
of adding what is called a clause of ac etiam to the usual complaint of
trespass, the bill of Middlesex commanding the defendant to be brought
in to answer the plaintiff of a plea of trespass and also to a bill of debt,
the complaint of trespass giving cognizance to the court, and that of
debt authorizing the arrest. The sum sworn to by the plaintiff is marked
upon the back of the writ, and the sheriff or his officer, the bailiff, is
then obliged actually to arrest or take into custody the body of the de-
fendant, and having so done to return the writ with a cepi corpus in-
dorsed thereon.
An arrest must be by corporal seizing or touching the
defendant's body, 6 after which the bailiff may justify
5. Arrest for a simple debt has been erty of the defendant as security for
abolished by statute in most, if not the plaintiff's claim upon making the
all the states; but in many states if requisite affidavit and giving bond as
the debt was contracted by fraud or required by statute. Proceedings by
there has been a fraudulent attempt garnishment are also authorized prob-
to evade payment, etc., and in most ably in all the sjtates. See, generally,
cases of tort the plaintiff by making Drake on Attachment; Waples on At-
a proper showing on oath may pro- tachment & Garnishment; Bradner on
cure an order for the arrest of the Attachment, and the local statutes,
defendant on capias, under which he 6. Mere words will not constitute
will be compelled to give special bail an arrest. A submission, however, to
or bail to the action or be confined reasonably apprehended force is suffi-
in jail. In all the states also, there cient to constitute an unlawful im-
vvill probably be found statutes au- prisonment though no force is used
thorizing the attachment of the prop- or threatened. Cooley on Torts (Stu-
550
OF PROCESS.
[BooK III.
breaking open the house in which he is to take him; other-
wise he has no such power, but must watch his opportunity
to arrest him. For every man's house is looked upon by
the law to be his castle of defence and asylum, wherein he
should suffer no violence. 7 Peers of the realm, members of
parliament, and corporations are privileged from arrests, 8
and of course from outlawries. [289] And against them the
process to enforce an appearance must be by summons and
distress infinite, instead of a capias. Also clerks, attorneys,
and all other persons attending the courts of justice (for
attorneys, being officers of the court, are always supposed
to be there attending) are not liable to be arrested by the
ordinary process of the court, but must be sued by bill
(called usually a bill of privilege) 9 as being personally pres-
dents' Ed.), 158 and note; Brushaber
v. Stegernan, 22 Mich. 266. So that it
is not absolutely necessary that there
be a corporal seizing or touching as
stated in the text; for if a bailiff
come into a room and tell the defend-
ant he arrests him, and lock the door,
it is sufficient. C. T. Hardw. 301; 2
New Rep. 211; Bull. N. P. 82. See
also authorities cited above.
7. It is the defendant's own dwell-
ing which by law is said to be his
castle; for if he be in the house of
another, the bailiff or sheriff may
break and enter it to effect his pur-
pose, but he ought to be very certain
that the defendant be, at the time of
such forcible entry, in the house. See
Johnson v. Leigh, 6 Taunt. 246. A
bailiff before he has made the arrest
cannot break open an outer door of
a house; but if he enter the outer
door peaceably, he may then break
open the inner door, though it be the
apartment of a lodger, if the owner
himself occupies part of the house.
Cowp. 1; 2 Moore, 207; 8 Taunt. 250,
S. C. But if the whole house be let
in lodgings, as each lodging is then
considered a dwelling-house, in which
burglary may be stated to have been
committed, it has been supposed that
the door of each apartment would be
considered an outer door, which could
not be legally broken open to execute
an arrest. Cowp. 2. But to justify
breaking open an inner door belonging
to a lodger, admittance must be first
demanded, unless defendant is in the
room. 3 B. & P. 223; 4 Taunt. 619.
And the breaking upon an inner door
of a stranger cannot be justified on
a suspicion that defendant is in the
room. 5 Taunt. 765, 6 ed. 246.
8. Members of parliament, members
of Congress and the various state leg-
islative bodies while in attendance
thereon, ambassadors and their house-
holds are privileged from civil arrest,
the extent of the privilege not always
being the same. For details, see
Cooley Const. Lim. (7th Ed.), 192
and notes, ante, Book 1, p. *46 and
note.
9. Not applicable to this country.
When suable at all the same process
is used as in other cases.
CHAP. XIX.] OF PROCESS. 551
ent in court. Clergymen performing divine service, and
not merely staying in the church with a fraudulent design,
are for the time privileged from arrests, by stat. 50 Edw.
III. c. 5, and 1 Ric. II. c. 16, as likewise members of Con-
vocation- actually attending thereon, by statute 8 Hen. VI.
c. 1 [not applicable to this country]. Suitors, witnesses,
and other persons necessarily attending any courts of
record upon business are not to be arrested during their
actual attendance, which includes their necessary coming
and returning. And no arrest can be made in the king's
presence, nor within the verge of his royal palace, nor in
any place where the king's justices are actually sitting.
And, lastly, by statute 29 Car. II. c. 7, no arrest can be made,
nor process served upon a Sunday, except for treason,
felony, or breach of the peace. 1 [290]
When the defendant is regularly arrested, he must either
go to prison, for safe custody, or put in special bail to the
sheriff. The method of putting in bail to the sheriff is by
entering into a bond or obligation, with one or more sure-
ties, not fictitious persons, as in the former case of common
bail, but real, substantial, responsible bondsmen, to insure
the defendant's appearance at the return of the writ; which
obligation is called the 'bail-bond. 2 The sheriff, if he pleases,
may let the defendant go without any sureties, but that is
at his own peril; for after once taking him the sheriff is
bound to keep him safely so as to be forthcoming in court,
otherwise an action lies against him for an escape. But
on the other hand he is obliged, by statute 23 Hen. VI. c. 10,
to take (if it be tendered) a sufficient bail-bond; and by
statute 12 Geo. I. c. 29, the sheriff shall take bail for no
other sum than such as is sworn to by the plaintiff and
endorsed on the back of the writ.
Upon the return of the writ, or within four days after,
the defendant must appear according to the exigency of
the writ. This appearance is effected by putting in and
justifying bail to the action, 2 which is commonly called
1. The American law is, in most re- 2. As to the manner of putting in
spects, similar; but in. every case the and perfecting special bail and bail
local statutes must be consulted. to the action, consult the local stat-
utes and books on Practice.
~'*<2 Or PROCESS. [BOOK III.
putting in bail above. If this be not done, and the bail that
were taken by the sheriff below are responsible persons, the
plaintiff may take an assignment from the sheriff of the
bail-bond (under the statute 4 & 5 Anne, c. 16), and bring
an action thereupon against the sheriff's bail. [291] But if
the bail so accepted by the sheriff be insolvent persons, the
plaintiff may proceed against the sheriff himself by calling
upon him, first, to return the writ (if not already done), and
afterwards to bring in the body of the defendant. And if
the sheriff does not then cause sufficient bail to be put in
and perfected above, he will himself be responsible to the
plaintiff. 3
The bail above,, or bail to the action, must be put in either
in open court or before one of the judges thereof, or else in
the country before a commissioner appointed for that pur-
pose by virtue of the statute 4 W. & M. c. 4, which must be
transmitted to the court. These bail, who must at least be
two in number, must enter into a recognizance in court or
before the judge or commissioner, in a sum equal (or in
some cases double) to that which the plaintiff hath sworn
to, whereby they do jointly and severally undertake, that
if the defendant be condemned in the action he shall pay
the costs and condemnation, or render himself a prisoner,,
or that they will pay it for him, which recognizance is trans-
mitted to the court in a slip of parchment entitled a bail
piece. And, if excepted to, the bail must be perfected, that
is, they must justify themselves in court, or before the com-
missioner in the country, by swearing themselves house-
keepers, and each of them to be worth . the full sum for
which they are bail, after payment of all their debts. 4
Special bail may be discharged by surrendering the defend-
ant into custody within the time allowed by law, for which
purpose they are at all times entitled to warrant to appre-
hend him. [292]
Special bail is required (as of course) only upon actions
of debt, or actions on the case in trover or for money due,
3. Similar rules will be found to 4. See local statutes,
exist in some of the states. Consult
the local books on Practice,
CHAP. XIX.] OF PROCESS. 553
where the plaintiff can swear that the cause of action
amounts to ten pounds; but in actions where the damages
are precarious, being to be assessed, ad libitum* by a jury,
as in actions for words, ejectment, or trespass, it is very
seldom possible for a plaintiff to swear to the amount of
his cause of action, and therefore no special bail is taken
thereon, unless by a judge's order or the particular direc-
tions of the court, in some peculiar species of injuries, as
in cases of mayhem or atrocious battery, or upon such
special circumstances as make it absolutely necessary that
the defendant should be kept within the reach of justice.
Also in actions against heirs, executors, and administrators,
for debts of the deceased, special bail is not demandable;
for the action is not so properly against them in person as
against the effects of the deceased in their possession. But
special bail is required even of them in actions for a devas-
tavit, or wasting the goods of the deceased, that wrong being
of their own committing. *
5. At pleasure.
554:
OF PLEADING.
[BOOK III.
CHAPTEK XX.
OF PLEADING.
Pleadings are the mutual altercations between the plain-
tiff and defendant, which at present are set down and de-
livered into the proper office in writing, though formerly
they were usually put in by their counsel ore tenus or viva
I. After an experience of many
years as a teacher of common law
pleading and practice, it is our de-
liberate judgment that a thorough
knowledge of the elements of common
law pleading and practice is the best
preparation for the practice of the law
in any jurisdiction whether it has the
common law or so-called code proce-
dure and* that one having such knowl-
edge will experience no difficulty in
adopting any other system.' No at-
tempt will therefore be made to give
the details of any other system than
that of the common law. There are
several works on elementary common
law pleading, each so excellent, that
to us the one last read (and we have
read them often) seems the best. Ste-
phens' Pleading and Gould's Pleading
are most excellent works; and an old
edition will do as well as the most
recent, if not better; for with the most
recent editions of these works it is
not always easy without consulting
the reports to tell what cases are
based upon the common law and what
upon statute. " Chitty's Pleading,
which [as John G. Saxe, in describ-
ing his library once said], draws the
student's tear," is a work of monu-
mental learning. We remember well
when a student listening to lectures
by the Hon. Thomas M. Cooley of
revered memory, hearing him advise
his listeners to study the precedents
in the 2d and 3d vols. of Chitty. The
man who knows all of Blackstone's
Commentaries, Chitty on Pleading,
and is well versed in evidence, is
better qualified to practice law than
are 99% of the bar. An old edition
of Chitty is preferable.
When we come to enumerate books
on practice which should be constantly
referred to and which will be found
necessary in order to understand ex-
traordinary process such as man-
damus, prohibition, quo warranto,
scire facias, certiorari, etc., we find
also a wealth of literature. Tidd's
and Chitty's General Practice; Went-
worth's Pleading (10 vols.) ; Graham
and Burrill's Practice; the last two
under the old New York common law
system, are very valuable. Of course,
local works should be consulted and
studied, but our experience is that
some of them are most noted for what
they do not contain. When we reach
the subject of equity pleading and
practice we shall take occasion to no-
tice some of the older works on those
subjects.
The literature on code pleading,
considering its alleged simplicity, is
rather formidable. See Bender's Law
Catalogue (1914), pp. 16, 82. For
the student desiring a good outline of
the subject, Bryant's Code Pleading
(2d Ed.), 1899, is well adapted.
CHAP. XX.]
OF PLEADING.
555
vocc, in court, and then minuted down by the chief clerks or
prothonotaries. [293] [Pleading is the statement in a
logical and legal form of the facts which constitute the
plaintiff's cause of action or the defendant's ground of
defence; it is the formal mode of alleging on the record that
which would be the support or the defence of the party in
evidence.] 2
2. Per Buller, J., 3 T. R. 159;
Dougl. 278. "It is (as also observed
by the same learned judge, in Dougl.
Rep. 159), one of the first principles
of pleading, that there is only occa-
sion to state facts, which must be
done for the purpose of informing the
court, whose duty it is to declare the
law arising upon those facts, and of
apprizing the opposite party of what
is meant to be proved, in order to give
him an opportunity to answer or tra-
verse it." And see the observations
of Lord C. J. De Grey, Cowp. 682.
From this it will be seen, that the
science of special pleading may be
considered under two heads: 1st.
The facts necessary to be stated. 2d.
The mode of stating them. In these
considerations, the reader must be
contented with a general outline of the
law upon the subject.
1st. The Facts Necessary to Be
Stated. No more should be stated
than is essential to constitute the
cause of complaint, or the ground of
defence. Cowp. 683; 1 Lord Ray. 171.
And facts only should be stated, and
not arguments or inferences, or mat-
ter of law. Cowp. 684; 5 East, 275.
The party can only succeed on the
facts, as they are alleged and proved.
There are various facts which need
not be stated, though it may be es-
sential that they should be established
in evidence, to entitle the party plead-
ing to succeed.
Thus there are facts of which the
court will, from the nature of its
office, take notice without their being
stated; as when the king came to the
throne (2 Lord Raym. 794), his priv-
ileges (id. 980), proclamations, etc.
(1 Lord Raym. 282; 2 Camp. 44; 4
M. & S. 532), but private orders of
council, pardons and declarations of
war, etc., must be stated. 2 Litt.
Bac. Reg. 303; 3 M. & S. 67; 11 Yes.
292; 3 Camp. 61. 67. The time and
place of holding parliaments, and
their course of proceedings, need not
be stated (1 Lord Raym. 343, 210;
1 Sauncl. 131) ; but their journals
must. Lord Raj". 15 ; Cowp. 17.
Public statutes, and the facts they
ascertain (1 T. R. 145; Com. Dig.
Pleader, c. 76) ; the ecclesiastical,
civil and marine laws (Bro. Qnare
Impedit, pi. 12; Lord Ray. 338) need
not be stated; but private acts (Lord
Ray. 381; 2 Dougl. 97) and foreign
(2 Cart. 273; Cowp. 174) and plan-
tation and forest (2 Leon. 209) laws,
must. Common law rights, duties and
general customs, customs of gavelkind
and borough English (Dougl. 150;
Lord Ray. 175, 1542; Carth. 83: Co.
Litt. 175; Lord Raym. 1025; Cro.
. Car. 561 ) , need not be stated ; but
particular local customs must. 1 Rol.
Rep. 509; 9 East, 185; Stra. 187,
1187; Dougl. 387. The almanack is
part of the law of the land, and the
courts take notice thereof, and the
days of the week, and of the moveable
feasts and terms. Dougl. 380; Salk.
556
OF PLEADING.
[BooK III.
The first of these is the declaration, narratio, or count,
anciently called the 'tale, in which the plaintiff sets forth
his cause of complaint at length, being indeed only an
amplification or exposition of the original writ upon which
his action is founded, with the additional circumstances of
time and place when and where the injury was committed.
In local actions, where possession of land is to be re-
269; 1 Roll. Ab. 524, c. pi. 4; 6 Mod.
81; Salk. 626. So the division of
England into counties will be noticed
without pleading (2 Inst. 557;
Marsh. 124) but not so of a less divi-
sion (id.), nor of Ireland. 1 Chit.
Rep. 28, 32; 3 B. & A. 301; S. C.,
2 D. & R. 15; 1 B. & C. 16, S. C.
The court will take judicial notice of
the incorporated towns, of the extent
of ports, and the river Thames. Stra.
469; 1 H. Bla. 356. So it will take
notice of the meaning of English
words and terms of art, according to
their ordinary acceptation (1 Rol.
Ab. 86, 525) ; also of the names and
quantities of legal weights and meas-
ures (1 Rol. Ab. 525) ; also courts
will take notice of its own course of
proceedings (1 T. R. 118; 2 Lev. 176)
and of those of the superior courts
(2 Co. Rep. 18; Cro. Jac. 67), the
privileges they confer on their officers
(Lord Ray. 869, 898), of courts of
general jurisdiction, and the course of
proceedings therein; as the court of
exchequer in Wales, and the counties
palatine (1 Lord Rayra. 154; 1 Saund.
73) ; but the courts are not bound,
ex officio, to take notice who were, or
are the judges of another court at
Westminster (2 Andr. 74; Stra.
1226), nor are the superior courts, ex
officio, bound to notice the customs,
laws or proceedings of inferior courts
of limited jurisdiction (1 Roll. Rep.
105; Lord Raym. 1334; Cro. Eli*.
502), unless indeed in courts of error.
Cro. Car. 179.
Where the law presumes a fact, as
that a person is innocent of a fraud
or crime, or that a transaction is il-
legal, it need not be stated. 4 M. &
S. 105; 2 Wils. 147; Co. Lit. 78b;
I B. & A. 463.
Matter which should come more
properly from the other side, as it is
presumed to lie more in the knowledge
of the other party, or is an answer to
the charge of the party pleading, need
not be stated, unless in pleas of estop-
pel and alien enemy; but this rule
must be acted upon with caution; for
if the fact in any way constitutes a
condition precedent, to enable the
party to avail himself of the charge
stated in his pleading, such fact should
be stated. Com. Dig. Pleader, c. 81; 1
Leon. 18; 2 Saund. 62b; 4 Camp. 20;
II East, 638, and see cases 1 Chit,
on PI. 206; Stephen, 354.
Though the facts of a case must be
stated in pleading, it is not necessary
to state that which is a mere matter
of evidence of such fact. 9 Rep. 9b;
9 Edw. III. 5b, 6a; Willes, 130;
Raym. S.
And though the general rule is. that
facts only are to be stated, yet there
are some instances in which the state-
ment in the pleading is proper, though
it does not accord with the real facts,
the law allowing a fiction, as in eject-
ment, trover, detinue, etc. 2 Burr.
667: 1 N. R. 140.
No fact that is not essential to sub-
stantiate the pleading should be
stated. The statement of immaterial
CHAP. XX.]
Or PLEADING.
557
covered or damages for an actual trespasser for waste, &c.,
affecting land, the plaintiff must lay his declaration or
declare his injury to have happened in the very county and
place that it really did happen in; but in transitory actions,
for injuries that might have happened anywhere, as debt,
detinue, slander, and the like, the plaintiff may declare in
or irrelevant matter is not only cen-
surable on the ground of expense, but
frequently affords an advantage to the
opposite party, either as the ground
of a variance, or as rendering it en-
eumbent on the party pleading to ad-
duce more evidence than would other-
wise have been necessary; though, in-
deed, if the matter unnecessarily
stated be wholly foreign and imperti-
nent to the cause, so that no allega-
tion whatever on the subject was nec-
essary, it will be rejected as surplus-
age, it being a maxim that utllc per
inutile non vitiatur. See cases, etc.,
in Chit, on PI. 208, 9, 10. Besides
this, the pleading must not state two
Or more facts, either of which would
of itself, independently of the other,
constitute a sufficient ground of ac-
tion or defence. Co. Lit. 304a; Com.
Dig. Pleader, C. 33, E. 2; 1 Chit, on
PI. 208.
2dly. The Mode of Stating Facts.
The facts should be stated logi-
cally, in their natural order; as, on
the part of the plaintiff, his right,
the injury and consequent damage;
and these, with certainty, precision,
and brevity. The facts, as stated,
must not be insensible or repugnant,
nor ambiguous or doubtful In mean-
ing, nor argumentative, nor in the
alternative, nor by way of recital, but
positive, and according to their legal
effect and operation. Dougl. 666, 7;
1 Chit, on PI. 211; Stephen, 378 to
405.
Certainty signifies a clear and dis-
tinct statement, so that it may be
understood by the opposite party, by
the jury, who are to ascertain the
truth of such statement, and by the
court ? who are to give judgment.
Cowp. 682; Com. Dig. Pleader, C. 17.
Less certainty is requisite, when the
law presumes that the knowledge of
the facts is peculiarly in the opposite
party; and so when it is to be pre-
sumed that the party pleading is not
acquainted with minute circumstances.
13 East, 112; Com. Dig. Pleader, C.
26; 8 East, 85. General statements
of facts admitting of almost any
proof, are objectionable (1 M. & S.
441; 3 M. & S. 114); but where a
subject comprehends multiplicity of
matter, there, in order to avoid pro-
lixity, general pleading is allowed.
2 Saund. 411, n. 4; 8 T. E. 462.
In the construction of facts stated
in pleading, it is a general rule, that
every thing shall be taken most
strongly against the party pleading
(1 Saund. 259, n. 8); or rather, if
the meaning of the words be equivo-
cal, they shall be construed most
strongly against the party pleading
them (2 H. Bla. 530) ; for it is to be
intended, that every person states his
case as favourably to himself as pos-
sible (Co. Litt. 30, 36) ; but the lan-
guage is to have a reasonable intfnd-
mertt and construction (Com. Dig.
Pleader, C. 25) : and if the sense be
clear, mere exceptions ought not to
be regarded (5 East, 5291 ; and where
an expression is capable of different
558
OF PLEADING.
[BooK III.
what county he pleases, 3 and then the trial must be had
in that county in which the declaration is laid. [294]
Though if the defendant will make affidavit that the cause of action,
if any, arose not in that but in another county, the court will direct a
change of the venue or visne (that is, the vicinia or neighborhood in
which the injury is declared to be done), and will oblige the plaintiff
to declare in the other county, unless he will undertake to give material
evidence in the first. 4
It is generally usual in actions upon the case to set forth
several cases by different counts in the same declaration,
so that if the plaintiff fails in the proof of one, he may
succeed in another. 5 [295] As in an action on the case upon
meanings, that shall be taken which
will support the averment, and not
the other which would defeat it. 4
Taunt. 492; 5 East, 257. After ver-
dict, an expression should be con-
strued in such sense as would sustain
the verdict. 1 B. & C. 297.
3. This distinction of actions as
local and transitory is still import-
ant. The actions of ejectment, tres-
pass quare clausum fregit, etc., are
local, as stated in the text. See
the leading case of Mostyn v. Fabri-
gas, Cowp. 161; 1 Smith's Lead. Cas.
*765 and notes.
4. Change of venue in this country
is regulated by statute. See local
works on Practice.
5. The variations should be sub-
stantial: for if the different counts
be so similar that the same evidence
would support each of them, and be
of any considerable length, and vexa-
tiously inserted, the court would, on
application, refer it to the master for
examination, and to strike out the
redundant counts; and in gross cases
direct the costs to be paid by the at-
torney. 1 X. R. 289; Rep. T. Hardw.
129. And as to striking out superflu-
ous counts, see Tidd (8th Ed.), 667,
648; in 2 Bing. 412, nine counts were
allowed in an action for slander,
though the words used were very few.
See 1 Chit, on PI. 350, 1, 2, as to the
insertion of several counts. There
must be no misjoinder of different
counts; and, in order to prevent the
confusion which might ensue, if dif-
ferent forms of action, requiring dif-
ferent pleas and different judgments,
were allowed to be found in one ac-
tion, it is a general rule, that actions
in form ex contractu cannot be- joined
with those in form ex delicto. Thus,
assumpsit and debt (2 Smith, 618, 3
ib. 114), or assumpsit and an action
on the case, as for a tort, cannot be
joined (1 T. R. 276, 277; 1 Vent. 366:
Garth. 189), nor assumpsit with tro*
ver (2 Lev. 101; 3 Lev. 99; 1 Salk.
10; 3 Wils. 354; 6 East. 335; 2 Chitty
R. 343), nor' trover with detinue.
Willes, 118; 1 Chitty on Plead. 182.
Debt and detinue may, however, be
joined, although the judgments be
different. 2 Saund. 117. And see
further as to what is a misjoinder,
1 Chit, on PI. 199. Unless the sub-
sequent count expressly refers to the
preceding, no defect therein will be
aided by such preceding count. Bac.
CHAP. XX.] OF PLEADING. 559
an assumpsit for goods sold and delivered, the plaintiff
usually counts or declares, first, upon a settled and agreed
price between him and the defendant, as that they bargained
for twenty pounds; and lest he should fail in the proof of
this, he counts likewise upon a quantum valebant, that the de-
fendant bought other goods, and agreed to pay him so much
as they were reasonably worth, and then avers that they
were worth other twenty pounds ; and so on in three or four
different shapes; and at last concludes with declaring that
the defendant had refused to fulfil any of these agreements,
whereby he is endamaged to such a value. And if he
proves the case laid in any one of his counts, though he
fails in the rest, he shall recover proportionable damages. 6
This declaration always concludes with these words, ' ' and
thereupon he brings suit, ' ' &c., " inde producit sectqm," &c.
By which words, suit or secta (a sequendo), were anciently understood
the witnesses or followers of the plaintiff. For in former times the law
would not put the defendant to the trouble of answering the charge till
the plaintiff had made out at least a probable case. But the actual pro-
duction of the suit, the secta, or followers, is not antiquated, and hath been
totally disused, at least ever since the reign of Edward III., though the
form of it still continues.
At the end of the declaration are added also the plaintiff's common
pledges of prosecution [obsolete], John Doe and Richard Roe, which are
now mere names of form; though formerly they were of use to answer
to the king for the amercement of the plaintiff in case he were nonsuited,
barred of his action, or had a verdict or judgment against him.
For if the plaintiff neglects to deliver a declaration for
two terms after the defendant appears, or is guilty of other
delays or defaults against the rules of law in any subsequent
stage of action, lie is adjudged not to follow or pursue his
remedy as he ought to do, and thereupon a nonsuit, or non
Ab. Pleas and Pleader, 16, 1. In ante. They are in every-day use,
Illinois counts in case and trover and as stated by the author, only in
in trover and replevin may be joined an abbreviated form, in those states
in the same declaration. 1 Puter- retaining the common law forms of
burgh Com. Law, Plead. & Prac. (7th pleading; and are very useful in pre-
Ed.), 292. venting a variance between the plead-
6. See common counts considered ings and the evidence.
560 OF PLEADING. [BOOK III.
prosequitur is entered, and he is said to be non pros' d~ l [296]
And for thus deserting his complaint, after making a false
claim or complaint (pro falso clamore suo], he shall not only
pay costs to the defendant, but is liable to be amerced to
the king. A retraxit differs from a nonsuit in that the one
is negative and the other positive. The nonsuit is a mere
default and neglect of the plaintiff, and therefore he is
allowed to begin his suit again upon payment of costs; but
a retraxit is an open and voluntary renunciation of his suit
in court, and by this he forever loses his action. 8 A discon-
tinuance is somewhat similar to a nonsuit, for when a plain-
tiff leaves a chasm in the proceedings of his cause, as by
not continuing the process regularly from day to day and
time to time, as he ought to do, the suit is discontinued, and
the defendant is no longer bound to attend, but the plaintiff
must begin again by suing out a new original, usually pay-
ing costs to his antagonist.
When the plaintiff hath stated his case in the declaration,
it is incumbent on the defendant within a reasonable time l
to make his defence and to put in a plea, else the plaintiff
will at once recover judgment by default, or nihil dicit, of the
defendant.
Defence, in its true legal sense, signifies not a justification, protection,
or guard, which is now its popular signification, but merely an opposing
or denial (from the French verb defender) of the truth or validity of the
complaint. It is the contestatio litis of the civilians; a general asser-
tion that the plaintiff hath no ground of action, which assertion is after-
wards extended and maintained in his plea. [297] By defending the force
and injury, the defendant waived all pleas of misnomer; by defending
the damages, all exceptions to the person of the plaintiff; and hy de-
fending either one or the other when and ichere it should behoove him,
he acknowledged the jurisdiction of the court. [298] But of late years
these niceties have been very deservedly discountenanced, though they
still seem to be law if insisted on. 2
Before defence made, if at all, cognizance of the suit must be claimed
7. See local works on Practice. 1. Fixed by rule or statute.
8. This distinction still exists in 2. At present they arc mere mat-
tliis country. teis of form.
CHAP. XX.] OF PLEADING. 561
or demanded, when any person or body corporate hath the franchise, not
only of holding pleas within a particular limited jurisdiction, but also
of the cognizance of pleas. Upon this claim of cognizance, if allowed, all
proceedings shall cease in the superior court, and the plaintiff is left at
liberty to pursue his remedy in the special jurisdiction. 3
After defence made, the defendant must put in his plea.
[299] But before lie defends, if the suit is commenced by
capias or latitat, without any special original,, he is entitled
to demand one imparlance, or licentia loquendl; and may
before he pleads, have more time granted by consent of the
court, to see if he can end the matter amicably without
farther suit, by talking with the plaintiff. 4 There are also
many other previous steps which may be taken by a defend-
ant before he puts in his plea. He may, in real actions,
demand a view 5 of the thing in question, in order to ascer-
tain its identity and other circumstances. He may crave
oyer of the writ, or of the bond, or other specialty upon
which the action was brought, that is, to hear it read to
him, the generality of defendants in the times of ancient
simplicity being supposed incapable to read it themselves;
whereupon the whole is entered verbatim upon the record,
and the defendant may take advantage of any condition or
other part of it not stated in the plaintiff's declaration. 6
3. Not applicable to this country. In Illinois profert is unnecessary ;
4. Further time to plead is now but oyer may be had of any instru-
usually obtained by special motion. ment in writing whether under seal
5. Now allowed in other actions if or not if the same is not lost or de-
riecessary in the interests of justice stroyed, in the same manner as if
on special motion. Real actions have profert had been properly made ac-
been abolished. cording to the common law. Rev.
6. But now a defendant is not al- Stat. 111., ch. 110, sec. 20: Puter-
lowed oyer of the writ. . 1 B. & P. burgh's Com. Law. Plead. & Prac. ( 7th
646; 3 B. & P. 395: 7 East, 383. As Ed.), 491. Profert and oyer are also
to the demand and giving of oyer, still in use in Michigan and probably
and the manner of setting out deeds, in other states. See Green's New
etc.. therein, see 1 Saund. 9 (1), 289 Practice, *1255, *1276, *1328, *1333.
(2); 2 Saund. 9 (12, 13), 46 (7), This practice does not apply in chan-
366 (1),405 (1),410 (2) ; Tidd (8th eery. Hamilton v. Downer, 152 111.
Ed.), 635 to 638, and index, tit. Oyer; 651.
1 Chit, on PI. 369 to 375; Gould's
Plead., ch. 8, sees. 32-64.
c/o
562 OF PLEADING. [BOOK III.
When these proceedings are over, the defendant must
then put in his excuse or plea. [301] Pleas are of two sorts,
dilatory pleas, and pleas to tJir action. Dilatory pleas are
such as tend merely to delay or put off the suit, by question-
ing the propriety of the remedy rather than by denying the
injury; pleas to the action are such as dispute the very cause
of suit. The former cannot be pleaded after a general im-
parlance, which is an acknowledgment of the propriety of
the action. For imparlances are either general, of which
we have before spoken and which are granted of course^ or
special, with a saving of all exceptions to the writ or count,
which may be granted by the prothonotary; or they may be
still more special, with a saving of all exceptions whatso-
ever, which are granted at the discretion of the court.
1. Dilatory pleas are: 1. To the jurisdiction of the court,
alleging that it ought not to hold plea of this injury. 2.
To the disability of the plaintiff, by reason whereof he is
incapable to commence or continue the suit; as that he is an
alien enemy, outlawed, excommunicated, attainted of treason
or felony, under a praemunire, not in rerum natura (being
only a fictitious person), an infant, a feme-covert, or a monk
professed. 3. In Abatement, which abatement is either of
the writ or the count, for some defect in one of them, as by
misnaming the defendant, which is called a misnomer,
giving him a wrong addition, as esquire instead of knight,
or other want of form in any material respect. [302] Or
it may be that the plaintiff is dead; for the death of either
party is at once an abatement of the suit. 7 And in actions
merely personal arising ex delicto for wrongs actualy done
or committed by the defendant, as trespass, battery, and
slander, the rule is that actio personalis moritur cum per-
sona, and it never shall be revived either by or against the
executors or other representatives. 8 For neither the execu-
7. See, generally, as to dilatory so that actions of tort affecting prop-
pic a., Stephens' Pleading, sees. 223, erty rights will survive. Actions for
224; Gould's Plead., ch. 2, sees. 32- torts to the person, such as assault
36: id., ch. 5. Some of these dis- and battery, slander, false imprison-
abilities are obsolete and have already ment, etc., are still subject to the
been considered. common law rule stated in the text.
8. This rule has been changed, to This subject has been already consid-
ome extent, by statute in many states red ante.
CHAP. XX.] OF PLEADING. 563
tors of the plaintiff have received, nor those of the defend-
ant have committed, in their own personal capacity, any
manner of wrong or injury. But in actions arising ex
eontractu, by breach of promise and the like, 9 where the
right descends to the representatives of the plaintiff, and
those of the defendant have assets to answer the demand,
though the suit shall abate by the death of the parties, yet
they may be revived against or by the executors, being
indeed rather actions against the property than the person,
in which the executors have now the same interest that
their testator had before.
Now by statute 4 and 5 Anne, c. 16, no dilatory plea is to
be admitted without affidavit made of the truth thereof, or
some probable matter shown to the court to induce them
to believe it true. And with respect to the pleas them-
selves, it is a rule that no exception shall be admitted
against a declaration or writ, unless the defendant will in
the same plea give the plaintiff a better, that is, show him
how it might be amended, that there may not be two objec-
tions upon the same account. 1
All pleas to the jurisdiction conclude to the cognizance
of the court, praying " judgment, whether the court will
have further cognizance of the suit; "pleas to the disability
conclude to the person, by praying " judgment, if the said
A the plaintiff ought to be answered," and pleas in abate-
ment (when the suit is by original) conclude to the writ or
declaration, by praying * ' judgment of the writ or 'declara-
tion and that the same may be quashed," cassetur, made void
or abated. [303]
When these dilatory pleas are allowed, the cause is either
dismissed from that jurisdiction, or the plaintiff is stayed
till his disability be removed, or he is obliged to sue 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
9. But not for breach of promise of 1. Andrews Stephens' Plead., sec.
marriage. Wade v. Kalbfleisch, 58 N. 223.
T. 283.
564 OF PLEADING. [BOOK III.
judgment of respondcat ouster, or to answer over in some
better manner. 2 It is then incumbent on him to plead.
2. A plea to the action, that is, to answer to the merits of
the complaint. This is done by confessing or denying it.
A confession of the whole complaint is not very usual, for
then the defendant would probably end the matter sooner,
or not plead at all, but suffer judgment to go by default.
Yet sometimes, after tender and refusal of a debt, if the
creditor harasses his debtor with an action, it then becomes
necessary for the defendant to acknowledge the debt and
plead the tender, adding that he has always been ready,
tout temps prist, and still is ready, uncore prist, to discharge
it; 3 for a tender by the debtor and refusal by the creditor
will in all cases discharge the costs, but not the debt itself,
though in some particular cases the creditor will totally
lose his money. But frequently the defendant confesses
one part of the complaint (by a cognovit actioncm in respect
thereof), and traverses or denies the rest, in order to avoid
the expense of carrying that part to a formal trial which he
has no ground to litigate. [304] A species of this sort of
confession is the payment of money into court, which is for
the most part necessary upon pleading a tender, and is
itself a kind of tender to the plaintiff, by paying into the
hands of the proper officer of the court as much as the de-
fendant acknowledges to be due, together with the costs
hitherto incurred, in order to prevent the expense of any
further proceedings. This may be done upon what is called
a motion, which is an occasional application to the court by
the parties or their counsel, in order to obtain some rule or
order of court, which becomes necessary in the progress of
a cause, and it is usually grounded upon an affidavit (the
perfect tense of the verb affido), being a voluntary oatli
before some judge or officer of the court, to evince the truth
of certain facts upon which the motion is grounded; though
no such affidavit is necessary for payment of money into
2. Andrews Stephens' Plead., sec. within a reasonable time after ac-
97. ceptance. See, generally. Puterburgh's
3. Thf tender must be kept good Com. Law, Plead. & Prac. (7th Ed.),
and the money ready to b delivered 211.
CHAP. XX.] OF PLEADING. 565
court. If after the money paid in the plaintiff proceeds in
his suit, it is at his own peril, for if he does not prove more
due than is so paid into court, he shall be non-suited and
pay the defendant costs; but he shall still have the money
so paid in, for that the defendant has acknowledged to be
his due. To this head may also be referred the practice
[authorized by statute] of what is called a set-off, 4 whereby
the defendant acknowledges the justice of the plaintiff's
demand on the one hand, but on the other sets up the de-
mand of his own to counterbalance that of the plaintiff,
either in the whole or in part: as, if the plaintiff sues for
ten pounds due on a note of hand, the defendant may set off
nine pounds due to himself for merchandise sold to the
plaintiff, and in case he pleads such set-off, must pay the re-
maining balance into court.
Pleas that totally deny the cause of complaint are either
the general issue or a special plea in bar. [-305]
1. The general issue, or general plea, is what traverses,
thwarts, and denies at once the whole declaration, without
offering any special matter whereby to evade it. As in
trespass, either vi et armis or on the case, non ciilpabilis, not
guilty; in debt upon contract, nihil debet, he owes nothing;
in debt on bond, non est factum, it is not his deed; on an
assumpsit, non assumpsit, he made no such promise. It is
an invariable rule that every defence which cannot be speci-
ally pleaded may be given in evidence upon the general issue
at the trial. 5
2. Special pleas, in- bar of the plaintiff's demand, are very
various; according to the circumstances of the defendant's
case. [306] As in personal actions, an accord, arbitration,
4. Regulated by statute in all the burgh's Com. Law, PI. & Pr. (7th
states, so that a judgment over may Ed.), 151; 1 Green's New Prac., *22G,
be recovered by the defendant against *229.
the plaintiff when the set-off exceeds 5. This plea is in general use in
the plaintiff's demand. Illinois, Michigan and probably other
Recoupement is also a defence. This" states. Its form has, however, in
is where the defendant claims dam- Michigan, been changed by statute,
ages against the plaintiff, for the though its legal effect is the same,
breach of the same contract that is 2 Green's Xew Prac. *1509.
sued on. See local statutes; Puter-
566 OF PLEADING. [Boox III.
conditions performed, nonage of the defendant, or some
other fact which precludes the plaintiff from his action. A
justification is likewise a special plea in bar, as in actions of
assault and battery, son assault demesne, that it was the
plaintiff's own original assault; in trespass, that the defend-
ant did the thing complained of in right of some office which
warranted him so to do ; or, in an action of slander, that the
plaintiff is really as bad a man as the defendant said he was.
Also, a man may plead the statutes of limitation in bar,
or the time limited by certain acts of parliament, beyond
which no plaintiff can lay his cause of action. 6
An estoppel is likewise a special plea in bar, which hap-
pens where a man hath done some act or executed some
deed which estops or precludes him from averring anything
to the contrary. [308]
The conditions and qualities of a plea (which, as well as
the doctrine of estoppels, will also hold equally [mutatis
mutandis] 7 with regard to other parts of pleading) are: 1.
That it be single and containing only one matter [i. e., in
each place], for duplicity begets confusion. 8 But by stat-
ute 4 & 5 Anne, c. 16, a man with leave of the court may
plead two or more distinct matters or single pleas, as in an
action of assault and battery, these three, not guilty, son
assault demesne, and the statute of limitations. 2. That it
be direct and positive, and not argumentative. 3. That it
have convenient certainty of time, place, and persons. 4.
That it answer the plaintiff's allegations in every material
point. 5. That it be so pleaded as to be capable of trial.
Special pleas are usually in the affirmative, sometimes in
the negative; but they always advance some new fact not
mentioned in the declaration, and then they must be averred
to be true in the common form, " and this he is ready to
verify." 9 [309] This is not necessary in pleas of the gen-
eral issue, those always containing a total denial of the facts
before advanced by the other party, and therefore putting
him upon the proof of them.
6. Consult the local statutes as the 8. Leave of court is no longer nee-
statutes are not uniform in the dif- essary.
ferent states. 9. Mere matter of form but still
7. The terms being changed. used.
CHAP. XX.] OF PLEADING. 567
No man is allowed to plead specially such a plea as
amounts only to the general issue, or a total denial of the
charge; but in such case he shall be driven to plead the
general issue in terms, whereby the whole question is re-
ferred to a jury. But if the defendant, in an assise or action
of trespass, be desirous to refer the validity of his title to
the court rather than the jury, he may state his title speci-
ally, and at the same time give color to the plaintiff, or
suppose him to have an appearance or color of title, bad
indeed in point of law, but of which the jury are not com-
petent judges. 1
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 question, he cannot plead
this by itself, as it amounts to no more than the general issue (nul tort,
nul disseisin) in assise, or not guilty in an action of trespass. But he
may allege this specially, provided he goes farther and says that the
plaintiff claiming by color of a prior deed of feoffment without livery
entered, upon whom he entered, and may then refer himself to the judg-
ment of the court which of these two titles is the best in point of law.
When the plea of the defendant is thus put in, if i.t does
not amount to an issue or total contradiction of the declara-
tion, but only evades it, the plaintiff may plead again, and
reply to the defendant's plea either traversing it, that is,
totally denying it, or he may allege new matter in contra-
diction to the defendant's plea, as when the defendant
pleads no award made the plaintiff may reply and set forth
an actual award and assign 'a breach; or the replication
may confess and avoid the plea, by some new matter or dis-
tinction consistent with the plaintiff's former declaration,
as in an action for trespassing upon land whereof the plain-
tiff is seised, if the defendant shows a title to the land by
descent, and that therefore he had a right to enter, and
gives color to the plaintiff, the plaintiff may either traverse
and totally deny the fact of the descent, or he may confess
and avoid it by replying that true it is that such descent
happened, but that since the descent the defendant himself
1. See Gould's Plead., ch. 6, part 2,
sees. 81-84; Stephens' Plead., ch. 5,
ec. 13.
5GS OF PLEADING. [BOOK III.
demised the lands to the plaintiff for term of life. [310]
To the replication the defendant may rejoin, or put in an
answer called a rejoinder. The plaintiff may answer the
rejoinder by a sur-re joinder, upon which the defendant may
rebut, and the plaintiff answer him by a sur-rebutter. 2
In the several stages of the pleading it must be carefully
observed not to depart or vary from the title or defence
which the party has once insisted on, for this (which is
called a departure in pleading) might occasion endless alter-
cation. Therefore the replication must support the declara-
tion, and the rejoinder must support the plea, without de-
parting out of it. As in the case of pleading no award made
in consequence of a bond of arbitration, to which the plain-
tiff replies, setting forth an actual award: now the defend-
ant cannot rejoin that he hath performed this award, for
such rejoinder would be an entire departure from his orig-
inal plea, which alleged that no such award was made,
therefore he has now no other choice but to traverse the
fact of the replication, or else to demur upon the law of
it. [311]
Yet in many actions the plaintiff, who has alleged in his
declaration a general wrojig, may in his replication, after
an evasive plea by the defendant, reduce that general wrong
to a more particular certainty by assigning the injury
afresh with all its specific circumstances in such manner
as clearly to ascertain and identify it, consistently with his
general complaint, which is. called a new or novel assign-
ment. As if the plaintiff in trespass declares on a breach
of his close in D, and the defendant pleads that the placo
where the injury is said to have happened is a certain close
of pasture in D, which descended to him from B, his father,
and so is his own freehold, the plaintiff may reply and
assign another close in D, specifying the abuttals and
boundaries as the real place of the injury. ;
Duplicity in pleading must be avoided. Every plea must
be simple, entire, connected, and confined to one single
2. The pleadings will rarely extend 3. See, generally, Puterburgh'a
so far as the sur-rebutter. Com. Law, Plead. & Prac. (7th Ed.),
361.
CHAP. XX.] OF PLEADING. 569
point: it must never be entangled with a variety of distinct,
independent answers to the same matter, which must re-
quire as many different replies and introduce a multitude
of issues upon one and the same dispute. For this would
often embarrass the jury, and sometimes the court itself,
and at all events would greatly enhance the expense of the
parties.
Yet it frequently is expedient to plead in such a manner as to avoid
any implied admission of a fact which cannot with propriety or safety be
positively affirmed or denied. And this may be done by what is called a
protestation, whereby the party interposes an oblique allegation or de-
nial of some fact, protesting (by the gerund protestando) that such a
matter does or does not exist, and at the same time avoiding a direct
affirmation or denial. Sir Edward Coke hath defined a protestation (in
the pithy dialect of that age) to be " an exclusion of a conclusion." For
the use of it is to save the party from being concluded with respect to
some fact or circumstance which cannot be directly affirmed or denied
without falling into duplicity of pleading, and which yet, if he did not
thus enter his protest, he might be deemed to have tacitly waived or ad-
mitted. [312]
In any stage of the pleadings, when either side advances
or affirms any new matter, he usually avers it to be true,
' ' and this he is ready to verify. ' ' [313] On the other hand,
when either side traverses or denies the facts pleaded by
his antagonist, he usually tenders an issue, as it is called,
the language of which is different according to the party by
whom the issue is tendered; for if the traverse or denial
comes from the defendant, the issue is tendered in this
manner, " and of this he puts himself upon the country,"
thereby submitting himself to the judgment of his peers.
But if the traverse lies upon the plaintiff he tenders the
issue, or prays the judgment of the peers against the defend-
ant in another form, thus: " and this he prays may be in-
quired of by the country." 4
But if either side (as, for instance, the defendant) pleads
a special negative plea, not traversing or denying anything
that was before alleged, but disclosing some new negative
matter, as where the suit is on a bond conditioned to per-
4. These forms are still observed.
570 OF PLEADING. [BOOK III.
form an award, and the defendant pleads, negatively, that
no award was made, he tenders no issue upon this plea,
because it does not appear whether the fact will be dis-
puted, the plaintiff not having yet asserted the existence
of any award; but when the plaintiff replies and sets forth
an actual specific award, if then the defendant traverses the
replication and denies the making of any such award, he
then, and not before, tenders an issue to the plaintiff. For
when in the course of pleading they come to a point which
is affirmed on one side and denied on the other, they are
then said to be at issue, all their debates being at last con-
tracted into a single point, which must now be determined
either in favor of the plaintiff or of the defendant.
CHAP. XXI.} OF ISSUE AND DEMURRER. 571
CHAPTER XXI.
OF ISSUE AND DEMURRER.
Issue (exitus], being the end of all the pleadings, is the
fourth part or stage of an action, and is either upon matter
of law or matter of fact. [314]
An issue upon matter of law is called a demurrer, and it
confesses the facts to be true as stated by the opposite
party, but denies that by the law arising upon those facts
any injury is done to the plaintiff, or that the defendant
has made out a legitimate excuse; according to the party
which first demurs (demoratur), rests, or abides upon the
point in question. As if the matter of the plaintiff's com-
plaint or declaration be insufficient in law, as by not assign-
ing any sufficient trespass, then the defendant demurs to
the declaration; if, on the other hand, the defendant's ex-
cuse or plea be invalid, as if he pleads that he committed a
trespass by authority from a stranger without making out
the stranger's right, here the plaintiff may demur in law to
the plea; and so on in every other part of the proceedings
where either side perceives any material objection in point
of law upon which he may rest his case.
The form of such demurrer is by averring the declaration
or plea, the replication or rejoinder, to be insufficient in law
to maintain the action or the defence, and therefore praying
judgment for want of sufficient matter alleged. [315] Some-
times demurrers are merely for want of sufficient form in
the writ or declaration. But in cases of exceptions to the
form or manner of pleading, the party demurring must, by
statute 27 Eliz. c. 5, and 4 & 5 Anne, c. 16, set forth the
causes of his demurrer, or wherein he apprehends the de-
ficiency to consist. And upon either a general or such a
special demurrer the opposite party must aver it to be suffi-
cient, which is called a joinder in demurrer, 1 and then the
parties are at issue in point of law; which issue in law, or
1. The practice is still the same
wh'efe not changed by statute.
572 OF ISSUE AXD DEMURRER. [BooK IIT.
demurrer, the judges of the court before which the action
is brought must determine.
An issue of fact is where the fact only, and not the law,
is disputed. And when he that denies or traverses the fact
pleaded by his antagonist has tendered the issue, thus:
" and this he prays may be inquired of by the country; " or
11 and of this he puts himself upon the country," it may
immediately be subjoined by the other party, " and the said
A B doth the like [similiter]," which done, the issue is said
to be joined, both parties having agreed to rest the fate of
the cause upon the truth of the fact in question. And this
issue of fact must, generally speaking, be determined, not
by the judges of the court, but by some other method, the
principal of which methods is that by the country, per paix
(in Latin per patriam), that is, by jury. 2
But here it will be proper to observe that during the whole of these
proceedings, from the time of the defendant's appearance in obedience
to the king's writ, it is necessary that both the parties be kept or con-
tinned in court from day to day till the final determination of the suit.
[316] For the court can determine nothing unless in the presence of
both the parties, in person or by their attorneys, or upon default of one
of them, after his original appearance and a time prefixed for his ap-
pearane in court again. Therefore in the course of pleading, if either
party neglects to put in his declaration, plea, replication, rejoinder, and
the like, within the times allotted by the standing rules of the court,
the plaintiff, if the omission be his, is said to be nonsuit, or not to follow
and pursue his complaint, and shall lose the benefit of his writ; or, if the
negligence be on the side of the defendant, judgment may be had against
him for such his default. And after issue or demurrer joined, as well
as in some of the previous stages 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 case may require. The giving of this day is
called the continuance, because thereby the proceedings are continued
without interruption from one adjournment to another. If these con-
tinuances are omitted, the cause is thereby discontinued, and the defend-
ant is discharged sine die, without a day, for this turn; for by his ap-
pearance in court he has obeyed the command of the king's writ, and
unless he be adjourned over to a certain day he is no longer bound to
2. It is a maxim that the court re- court by consent of the parties. In
spends to questions of law and the Manitoba, Canada, this is the regular
jury to questions of fact. By statute practice, trial by jury being rather
in some states all the issues, both unusual,
fact and law, may be tried by the
CHAP. XXI.] OF ISSUE AND DEMURRER. 573
attend upon that summons, but he must be warned afresh, and the whole
roust begin de novo. [Not so now in courts of record.]
Now it may sometimes happen that after the defendant
has pleaded, nay, even after issue or demurrer joined, there
may have arisen some new matter which it is proper for the
defendant to plead, as that the plaintiff, being a feme-sole,
is since married, or that she has given the defendant a re-
lease, and the like; here, if the defendant takes advantage
of this new matter as early as he possibly can, viz., at the
day given for his next appearance, he is permitted to plead
it in what is called a plea of puis darrein continuance, 3 or
since the last adjournment. For it would be unjust to ex-
clude him from the benefit of this new defence, which it was
not in his power to make when he pleaded the former. [317]
But it is dangerous to rely on such a plea without due con-
sideration, for it confesses the matter which was before in
dispute between the parties. And it is not allowed to be .
put in if any continuance has intervened between the arising
of this fresh matter and the pleading of it; for then the
defendant is guilty of neglect, or laches, and is supposed to
rely on the merits of his former plea. Also it is not allowed
after a demurrer is determined, or verdict given, because
the relief may be had in another way, namely, by writ of
audita querela, of which hereafter. And these pleas puis
darrein continuance, when brought to a demurrer in law or
issue of fact, shall be determined in like manner as other
pleas.
Demurrers, or questions concerning the sufficiency of the
matters alleged in the pleadings, are to be determined by
the judges of the court upon solemn argument by counsel
on both sides, 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 paper-
books, are delivered to the judges to peruse. The record is
a history of the most material proceedings in -the canso
3. See Puterburgh's Com. Law. sort. Id. Ross v. Nesbit, 2 Gilm.
riead. & Prac. (7th Ed.), 244. Great 252.
certainty is required in a plea of this
5 T-i OF ISSUE AND DEMURRER. [BOOK III.
entered on a parchment roll, 4 and continued down to the
present time, in which must be stated the original writ and
summons, all the pleadings, the declaration, view or oyer
prayed, the imparlances, plea, replication, rejoinder, con-
tinuances, and whatever further proceedings have been had,
all entered verbatim on the roll, and also the issue or de-
murrer, and joinder therein.
These were formerly all written, as indeed all public proceedings were,
in Gorman or law French, and even the arguments of the counsel and
decisions of the court were in the same barbarous dialect. This con-
tinued till the reign of Edward III., when by a statute passed in the
thirty-sixth year of his reign [1362], it was enacted that for the future
all pleas should be pleaded, shown, defended, answered, debated, and
judged in the English tongue, but be entered and enrolled in Latin. [318]
The practisers, however, being used to the Norman language, still con-
tinued to take their notes in law French, and of course when those notes
came to be published under the denomination of reports they were
printed in that barbarous dialect.
This technical Latin continued in use from the time of its first intro-
duction till the subversion of our ancient constitution under Cromwell,
when, among many other innovations in the law, the language of our
records was altered and turned into English. [322] But at the restora-
tion of King Charles this novelty was no longer countenanced, the prac-
tisers finding it very difficult to express themselves so concisely or signi-
ficantly in any other language but the Latin. And thus it continued
without any sensible inconvenience till about the year 1730, when it
was again thought proper that the proceedings at law should be done into
English, and it was accordingly so ordered by statute 4 Geo. II. c. 26. 5
4. The common law record now con- all the papers on file) and entries
tains the same items; but the original constitute the record. A bill of ex-
pleadings with their file marks and ceptions may be necessary to gpt other
the entries of verdict, judgment, etc., matters into the record. This will
in the books of records now consti- be considered in another place,
tute the record without the enroll- 5. All proceedings in our courts are
ment on parchment as described in in English,
tne text. In short the files (but not
CHAP. XXII.] OF THE SEVERAL SPECIES OF TRIAL. 575
CHAPTEK XXII.
OF THE SEVERAL, SPECIES OF TRIAL. '
Trial is the examination of the matter of fact in issue.
[330]
The species of trials in civil cases are seven. By record;
by inspection or examination; by certificate; by witnesses;
by wager of battle; by wager of law; and by jury.
I. First, then, of the trial by record. This is only used
in one particular instance, and that is where a matter of
record is pleaded in any action, as a fine, a judgment, or the
like, and the opposite party pleads ' ' nul tiel record, ' ' that
there is no such matter of record existing. Upon this, issue
is tendered and joined in the following form, ' ' and this he
prays may be inquired 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 the record by him
in pleading alleged, or else he shall be condemned," and
on his failure his antagonist shall have judgment to re-
cover [331] The trial, therefore, of this issue is merely
by the record, 1 for, as Sir Edward Coke observes, a record
or enrolment is a monument of so high a nature, and im-
por.teth in itself such absolute verity, that if it be pleaded
that there is no such record, it shall not receive any trial
by witness, jury, or otherwise, but only by itself.
II. Trial by inspection or examination 2 is when, for the greater ex-
pedition of a cause, in some point or issue, being either the principal
question or arising collaterally out of it, but being evidently the object
of senses, the judges of the court, upon the testimony of their own sense,
shall decide the point in dispute. For where the affirmative or negative
of a question is matter of such obvious determination, it is not thought
necessary to summon a jury to decide it, who are properly called in to
inform the conscience of the court in respect of dubious facts; and there-
fore when the fact, from its nature, must be evident to the court either
1. The court determines this issue 2. This method of trial probably
by an inspection of the transcript of does not exist in this country,
the record. Puterburgh's Com. Law,
Plead. & Prac. (7th Ed.), 495, 496.
5TG OF THE SEVERAL SPECIES OF TRIAL. [-BOOK TIT.
from ocular demonstration or other irrefragable proof, there the law de-
parts from its usual resort, the verdict of twelve men, and relies on the
judgment of the court alone. [332] As in case of a suit to reverse a
fine for nonage of the cognizor, or to set aside a statute or recognizance
entered into by an infant, here, and in other cases of the like sort, a writ
shall issue to the sheriff, commanding him that he constrain the said
party to appear, that it may be ascertained by the view of his body by
the king's justices whether he be of full age or not. If, however, the
court has, upon inspection, any doubt of the age of the party (as may
frequently be the case), it may proceed to take proofs of the fact, and
particularly may examine the infant himself upon an oath of voire dire,
verilatem dicerep that is, to make true answer to such questions as the
court shall demand of him; or the court may examine his mother, his
godfather, or the like.
In like manner, if a defendant pleads in abatement of the suit that the
plaintiff is dead, and one appears and calls himself the plaintiff, which
the defendant denies, in this case the judges shall determine by inspec-
tion and examination whether he be the plaintiff or not. Also if a man
be found by a jury an idiot a natititate, he may come in person into the
Chancery before the chancellor, or be brought there by his friends, to be
inspected and examined whether idiot or not; and if upon such view and
inquiry it appears he is not so, the verdict of the jury and all the pro-
ceedings thereon are utterly void and instantly of no effect.
Also, to ascertain any circumstances relative to a particular day past,
it hath been tried by an inspection of the almanac by the court. [333]
But in all these cases the judges, if they conceive a doubt, may order it
to be tried by jury.
III. The trial by certificate is allowed in such cases where the evidence
of the person certifying is the only proper criterion of the point in dis-
pute. For when the fact in question lies out of the cognizance of the
court the judges must rely on the solemn averment or information of
persons in such a station as affords them the most clear and competent
knowledge of the truth. As, therefore, such evidence (if given to a jury)
must have been conclusive, the law, to save trouble and circuity, permits
the fact to be determined upon such certificate merely. Thus, if the issue
be whether A was absent with the king in his army out of the realm in
time of war, this shall be tried by the certificate of the mareschal of the
king's host in writing under his seal, which shall be sent to the justices.
For matters within the realm, the customs of the city of London shall
be tried by the certificate of the mayor and aldermen certified by the
mouth of their recorder, upon a surmise from the party alleging it that
the custom ought to be thus tried, else it must be tried by the country.
[334] In some cases the sheriff of London's certificate shall be the final
trial, as if the issue be whether the defendant be a citizen of London or
a foreigner, in case of privilege pleaded to be sued only in the city courts.
3. To speak the truth.
CHAP. XXII.] OF THE SEVERAL SPECIES OF TRIAL. 577
[335] In matters of ecclesiastical jurisdiction, as marriage, and of course
general bastardy, and also excommunication and orders, these and other
like matters shall be tried by the bishop's certificate. The trial of all
customs and practice of the courts shall be by certificate from the proper
officers of those courts respectively, and what return was made on a
writ by the sheriff or under-sheriff snail be only tried by his own
certificate. 4 [336]
IV. A fourth species of trial is that by witnesses, per
testes, without the intervention of a jury; This is the only
method of trial known to the civil law in which the judge
is left to form in his own breast his sentence upon the credit
of the witnesses examined. But it is very rarely used in
our law, which prefers the trial by jury before it in almost
every instance, save only that when a widow brings a writ
of dower, and the tenant pleads that the husband is not
dead, this, being looked upon as a dilatory plea, is in favor
of the widow, and for greater expedition allowed to be tried
by witnesses examined before the judges; and so, saith
Finch, shall no other case in our law. But Sir Edward
Coke mentions some others, as to try whether the tenant
in a real action was duly summoned or the validity of a
challenge to a juror, so that Finch's observation must be
confined to the trial of direct, and not collateral issues. 5
And in every case Sir Edward Coke lays it down that the
affirmative must be proved by two witnesses at the least. 6
V. The next species of trial is of great antiquity, but much disused,
though still in force if the parties choose to abide by it; I mean the
trial by wager of battle. [337] [Obsolete.] This trial was introduced
into England among other Norman customs by William the Conqueror;
but was only used in three cases, one military, one criminal, and the
third civil. The first in the court-martial, or Court of Chivalry and
Honor; the second in appeals of felony, of which we shall speak in the
4. In this country marriage, has- 6. In courts of law, in general, it
tardy, absence in the army, etc., would suffices to prove a fact by one wit-
be established before a jury as in any ness. In courts of equity it is some-
other case. times otherwise, and two witnesses
5. By statute in many of (-he states are required. The exceptions both at
and in Canada issues of fact may, law and in equity will be considered
where no jury is demanded, be tried under the head Evidence in vol. 2 of
by the court without a jury. tins series.
37
578 OP THE SEVERAL SPECIES OF TRIAL. [Boox III.
next book; and the third upon issue joined in a writ of right, the last
and most solemn decision of real property. [338]
The last trial by battle that was waged in the Court of Common Pleas
at Westminster (though there was afterwards one in the Court of Chiv-
alry in 1631 and another in the County Palatine of Durham in 1638) was
in the thirteenth year of Queen Elizabeth, A. D. 1571, as reported by Sir
James Dyer. [Dyer, 301. See also Ashford v. Thornton, 1 B. & Aid. 405,
in 1818, on an appeal of murder.]
VI. A sixth species of trial is by wager of law, vadiatio legis [obsolete],
as the foregoing is called wager of battle, vadiatio duellij because, as in
the former case, the defendant gavo a pledge, gage, or vadium, to try the
cause by battle, so here he was to put in sureties or vadios, that at such
a day he will make his law, that is, take the benefit which the law has
allowed him. [341] For our ancestors considered that there were many
cases where an innocent man of good credit might be overborne by a
nmltitude of false witnesses, and therefore established this species of
;rial by the oath of the defendant himself; for if he will absolutely swear
himself not chargeable, and appears to be a person of reputation, he shall
go free and forever acquitted of the debt or other cause of action.
The manner of waging and making law is this. He that has waged,
or given security, to make his law, brings with him into court eleven
of his neighbors. [343J The defendant, then standing at 'the end of the
bar, is admonished by the judges of the nature and danger of a false
oath. And if he still persists, he is to. repeat this or the like oath:
" Hear this, ye justices, that I do not owe unto Richard Jones the sum
of ten pounds, nor any penny thereof, in manner and form as the said
Richard hath declared against me. So help me God." And thereupon his
eleven neighbors, or compurgators, shall avow upon their oaths that they
believe in their consciences that he saith the truth, so that himself must
be sworn de fidelitatej and the eleven de credulitate.% .
With us in England wager of law is never required, and is only ad-
mitted where an action is brought upon such matters as may be sup-
posed to be privately transacted between the parties, and wherein the
defendant may be presumed to have made satisfaction without being able
to prove it. [345] Therefore it is only in actions of debt upon simple
contract, or for amercement [in a court not of record], in actions of
detinue and of account, where the debt may have been paid, the goods
restored, or the account balanced, without any evidence of either, that
the defendant is admitted to wage his law.
7. Upon his faith. 8. Upon their belief.
CHAP. XXIII.] OF THE TRIAL BY JURY. 579
CHAPTER XXIII.
OF THE TRIAL BY JURY.
Trials by jury in civil causes are of two kinds, extraordi-
nary and ordinary. [351]
The first species of extraordinary trial by jury is that of the Grand
Assize [for the trial of writs of right].
Another Species of extraordinary juries is the jury to try an attaint,
which is a process commenced against a former jury for bringing in a
false verdict [both of which are abolished in this country].
With regard to the ordinary trial by jury in civil cases,
I shall in considering it follow the order and course of the
proceedings themselves, as the most clear and perspicuous
way of treating it.
When therefore an issue is joined by these words, " and
this the said A prays may be inquired of by the country,"
or " and of this he puts .himself upon the country, and the
said B does the like, ' ' the court awards a writ of venire
facias 1 upon the roll or record, commanding the sheriff
' ' that he cause to come here on such a day, twelve free and
lawful men, liber os et legales homines, of the body of his
county, by. whom the truth of the matter may be better
known, and who are neither of kin to the aforesaid A nor
the aforesaid B, to recognize the truth of the issue between
the said parties. [352] And such writ was accordingly
issued to the sheriff. By the statute 42 Edw. III. c. 11, it
was enacted that no inquests (except of assise and gaol
delivery) should be taken by writ of nisi pritis till after the
sheriff had returned the names of the jurors to the court
above. [353] So that now the course is to make the sheriff's
venire returnable on the last return of the same term wherein
issue is joined, viz., Hilary or Trinity term!, which from the
making up of the issues therein, are usually called issuable
terms. And he returns the names of the jurors in a panel
1. Cause to come. This writ still
issues by the same name.
580 OF THE TRIAL BY JURY. [BOOK IIT.
(a little pane, or oblong piece of parchment) annexed to the
writ. This jury is not summoned, and therefore, not appear-
ing at the day, must unavoidably make default. [354] For
which reason a compulsive process is now awarded against
the jurors, called in the Common Pleas a writ of habeas
corpora jiiratorum, 2 and in the King's Bench a distruitra.i,
commanding the sheriff to have their bodies or to distrain
them by their lands and goods, that they may appear upon
the day appointed. The entry, therefore, on the roll or
record is, "that the jury is respited, through defect of the
jurors, till the first day of the next term, then to appear at
Westminster, unless before that time, viz., on Wednesday,
the fourth of March, the justices of our lord the king, ap-
pointed to take assises in that county, shall have come to
Oxfdrd, that is, to the place assigned for holding the assises."
And thereupon the writ commands the sheriff to have their
bodies at Westminster on the said first day of next term, or
before the said justices of assise, if before that time they
come to Oxford, viz., on the fourth of March aforesaid. And
as the judges are sure to come and. open the circuit commis-
sions on the day mentioned in the writ, the sheriff returns
and summons the jury to appear at the assizes, and there the
trial is had before the justices of assise and nisi prius, among
whom are usually two of the judges of the courts of West-
minster, the whole kingdom being divided into six circuits
for this purpose.
If the sheriff be not an indifferent person, as if he be a
party in the suit, or be related by either blood or affinity
to either of the parties, he is not then trusted to return the
jury, but the venire shall be directed to the coroners, who in
this as in many other instances are the substitutes of the
sheriff, to execute process when he is deemed an improper
person. If any exception lies to the coroners the rent re
shall be directed to two clerks of the court, or two persons
of the county named by the court and sworn. [355] And
these two, who are called elisors, or electors, shall indif-
ferently name the jury, and .their return is final, no chal-
lenge being allowed to their array. 3
2. Bring the bodies of the jurors. 3. There have been many statutory
CHAP. XX III.] OF THE TKI-AL BY JURY. 581
When the general day of trials is fixed, the plaintiff or
his attorney must bring down the record to the assises,
and enter it with the proper officer, in order to its being
called on in course. 4 If it be not so entered, it cannot be
tried; therefore it is in the plaintiff's breast to delay any
trial by not carrying down the record, unless the defendant,
being fearful of such neglect in the plaintiff, and willing to
discharge himself from the action, will himself undertake
to bring on the trial, giving proper notice to the plaintiff.
[357] Which proceeding is called the trial by proviso, by
reason of the clause then inserted in the sheriff's venire,
viz., " proviso, provided that if two writs come to your
hands (that is, one from the plaintiff and another from the
defendant) you shall execute only one of them." But this
practice hath begun to be disused since the statute 14
Geo. II. c. 17, which enacts that if, after issue joined, ,he
cause is not carried down to be tried according to the
course of the court, the plaintiff shall be esteemed to be
nonsuited, and judgment shall be given/for the defendant
as in case of a nonsuit. In case the plaintiff intends to
try the cause, 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 distance, then fourteen days'
notice, ui order to prevent surprise. And if the plaintiff
then changes his mind, and does not countermand the no-
tice six days before the trial, he shall be liable to pay costs
to the defendant for not proceeding to trial by the same
last-mentioned statute. 3 The defendant, however, or plain-
tiff, may, upon good cause shown to the court above, as upon
changes in the manner of selecting the and records. The same judge, how-
jurors and in respect to their com- ever, is elected to preside over the
petency. As these changes differ in courts i of several counties, where the
the different states, the local statutes circuit comprises more than one
must be consulted. county.
4. In our country, as a general rule, 5. The manner of making up the
each county in the states, and each trial calendar or docket of cases is a
district in the federal system consti- matter of local practice and the local
tutes a separate court having a sep- works on practice or the rules of
arate seal, a complete set of officers court and statutes must be consulted.
582 OF THE TRIAL BY JURY. [BOOK III.
absence or sikness of a material witness, obtain leave upon
motion to defer the trial of the cause till the next assises. 6
But we will now suppose all previous steps to be regu-
larly settled, and the cause to be called on in court. The
record is then handed to the judge to peruse and observe
the pleadings, and what issues the parties are to maintain
and prove, while the jury is called and sworn. To this end
the sheriff returns his compulsive process (the writ of
habeas corpora, or distringas), with the panel of jurors
annexed, to the judge's officer in court. The jurors con-
tained in the panel are either special or common jurors.
Special jurors were originally introduced in trials at bar
when the causes were of too great nicety for the discussion
of ordinary freeholders, or where the sheriff was suspected
of partiality, though not upon such apparent cause as to
warrant an exception to him. He is in such case, upon mo-
tion 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 indifferently forty-eight of
the principal freeholders in the presence of the attorneys
on both sides, who are each of them to strike off twelve,
and the remaining twenty-four are returned upon the panel.
[358] By the statute 3 Geo. II. c. 25, either party is entitled
upon motion to have a special jury struck upon thetrial of
any issue, as well at the assises as at bar, he paying the
extraordinary expense, unless the judge will certify (in pur-
suance of the statute 24 Geo. II. c. 18) that the cause
required such special jury. 7
6. The practice upon motions for a is possible such may be the case in
new trial bears a general similarity some states. In courts of justice of
in all the states. The literature of the peace, however, while no special
the' subject has become quite volum- attention is paid to the quality, the
inous. See the local works on Prac- manner of selecting the six men, who
tice, Bayliss' New Trials, Hayne on usually constitute this sort of a jury,
New Trials (western states). 2 vols., is by each party alternately strik-
1912. ing off one name from the list of
7. Common juries, so-called, are the twelve, eighteen or twenty-four, as
only sort used in the state and fed- the case may b>, till six remain who
eral courts. So far as we know spe- constitute the jury in that court for
cial or " struck " juries are not now that case only.
in use in courts of record, though it
CHAP. XXIIL] OF THE TRIAL BY JURY. 583
A common jury is one returned by the sheriff according
to the directions of the statute 3 Geo. II. c. 25, which ap-
points that the sheriff or officer shall not return a separate
panel for every separate cause as formerly, but one and the
same panel for every cause to be tried at the same assises
containing not less than forty-eight nor more than seventy-
two jurors, and that their names being written on tickets
shall be put into a box or glass, and when each cause is
called twelve of these persons, whose names shall be first
drawn out of the box, shall be sworn upon the jury, unless
absent, challenged, or excused, or unless a previous view
of the messages, lands, or place in question shall have
been thought necessary by the court, in which case six 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,
shall be appointed by special writ of habeas corpora or
distringas to have the matters in question shown to them
by two persons named in the writ, and then such of the
jury as have had the view, or so many of them as appear,
shall be sworn on the inquest previous to any other jurors. 8
As the jurors appear, when called, they shall be sworn,
unless challenged by either party. Challenges are of two
sorts : challenges to the array, and challenges to the polls.
Challenges to the array are at once an exception to the
whole panel 9 in which the jury are arrayed or set in order
by the sheriff in his return, and they may be made upon
account of partiality or some default in the sheriff or his
under-officer who arrayed the panel. [359] And generally
speaking, the same reasons that before the awarding the
venire were sufficient to have directed it to the coroners or
elisors will be also sufficient to quash the array when made
by a person or officer of whose partiality there is any toler-
able ground of suspicion. Also, though there be no per-
sonal objection against the sheriff, yet if he arrays the
panel at the nomination, or under the direction of either
8. As before stated this matter is 9. This sort of challenge still ex-
wholly regulated by statute in this ista.
country. See the statutes and local
works on Practice.
5S4 OF THE TRIAL BY JURY. [BOOK III.
party, this is good cause of challenge to the array. By the
policy of the ancient law, the jury was to come de vicineto,
from the neighborhood of the vill or place where the cause
of action was laid in the declaration, and therefore some
of the jury were obliged to be returned from the hundred
in which such vill lay, and if none were returned the array
might be challenged for defect of hundredors. By statute
4 & 5 Anne, c. 6, this practice was entirely abolished upon
all civil actions, except upon penal statutes, and upon those
also by the 24 Geo. II. c. 18, the jury being now only to
come de corpore comitatus, from the body of the county at
large, 1 and not de vicineto, or from the particular neighbor-
hood. [360]
The array by the ancient law may also be challenged if an alien be
party to the suit, and upon a rule obtained by his motion to the court
for a jury de medicate linguae 2 such a one be not returned by the sheriff,
pursuant to the statute 28 Edw. III. c. 13, enforced by 8 Hen. VI. c. 29,
which enact that where either party is an alien born, the jury shall be
one half denizens and the other aliens (if so many be forthcoming in
the place) for the more impartial trial. But where both parties are
aliens no partiality is to be presumed to one more than another.
Challenges to the polls, In capita, are exceptions to par-
ticular jurors. [361] By the laws of England, also, in the
times of Bracton and Fleta, a judge might be refused for
good cause; but now the law is otherwise, and it is held that
judges and justices cannot be challenged. 3
Challenges to the polls are reduced to four heads : propter
honoris rcspcctum, propter dcfcctum, propter affectnm, and
propter deli< -him.
1. Propter honoris respectum, 4 as if a lord of parliament
be impanelled on a jury he may be challenged by either
party or he may challenge himself.
2. Propter defectum, 5 as if a juryman be an alien born,
this is defect of birth; if he be a slave or bondman, this is
1. Such is also the practice in the provides in such case for a change of
states. venue.
2. Of mixed tongue. Not in use in 4. On account of dignity,
the United States. 5. On account of defect.
3. The law in some states, however,
CHAP. XXIII.] OF THE TRIAL BY JURY. 535
defect of liberty, and he cannot be liber et leyalis homo. 9
[362] Under the word Jwmo also, though a name common
to both sexes, the female is, however, excluded propter dc-
fectum sexus? except when a widow feigns herself with child
in order to exclude the next heir, and a suppositions birth is
suspected to be intended; then upon the writ de venire inspi-
ciendo* a jury of women is to be impanelled to try the ques-
tion, whether with child or not. But the principal 'deficiency
is defect of estate sufficient to qualify him to be a juror. This
depends upon a variety of statutes. [As to which, see the
text]
3. Jurors may be challenged propter affectum 9 for sus-
picion of bias or partiality. [363] This may be either a
principal challenge or to the favor. A principal challenge is
such where the cause assigned carries with it prima facie
evident marks of suspicion, either of malice or favor, as
that a juror is of kin to either party within the ninth de-
gree; that he has been arbitrator on either side; that he
has an interest in the .cause ; that there is an action depend-
ing between him and the party; that he has taken money
for his verdict; that he has formerly been a juror in the
same cause; that he is the party's master, servant, coun-
selor, steward, or attorney, or of the same society or corpo-
ration with him all these are principal causes of chal-
lenge, which, if true, cannot be overruled, for jurors must be
omni exccptione majores. 1 Challenges to the favor 2 are
where the party hath no principal challenge, but objects
only some probable circumstances of suspicion, as acquaint-
ance and the like, the validity of which must be left to the
determination of triors, whose office it is to decide whether
the juror be favorable or unfavorable. The triors, in case
the first man called be challenged, are two indifferent per-
sons named by the court; and if they try one man and find
him indifferent lie shall be sworn, and then he and the two
triors shall try the next, and when another is found indif-
6. A free and legal man. 1. Above all exceptions.
7. On account of defect of sex. 2. Both principal challenges and to
8. Concerning an examination for the fnvor still exist though not ai-
ji vgnancy. ways distinguished by name.
9. On account of partiality.
586 OF THE TBIAL BY JURY. [Boos III.
ferent and sworn the two triors shall be superseded, and
the two first sworn on the jury shall try the rest.
4. Challenges propter delictum 3 are for some crime or
misdemeanor that affects the juror's credit and renders
him infamous, as for a conviction of treason, felony, per-
jury, or conspiracy, or if for some infamous offence he hath
received judgment of the pillory, tumbrel, or the like, or to
be branoTed, whipped, or stigmatized, or if he be outlawed
or excommunicated, or hath been attainted of false verdict,
praemunire, or forgery, or, lastly, if he hath proved recreant
when champion in the trial by battle, and thereby hath lost
his liberam legem. 4 [364] A juror may himself be exam-
ined on oath of voir dire, veritatem dicere, with regard to
such causes or challenge as are not to his dishonor or dis-
credit, but not with regard to any crime or anything which
tends to his disgrace or disadvantage.
Besides these challenges, which are exceptions against
the fitness of jurors, and whereby they may be excluded from
serving, there are also other causes to be made use of by
the jurors themselves, which are matter of exemption, &
whereby their service is excused and not excluded, as by
statute Westm. 2, 13 Edw. I. c. 38, sick and decrepit persons^
persons not commorant in the county, and men above seventy
years old; and by the statute of 7 & 8 W. III. c. 32, infants
under twenty-one. This exemption is also extended by divers
statutes, customs, and charters to physicians and other medi-
cal persons, counsel, attorneys, officers of the courts, and the
like, all of whom, if impanelled, must show their special ex-
emption. Clergymen are also usually excused, out of favor
and respect to their function.
If by means of challenges, or other cause, a sufficient num-
ber of unexceptionable jurors doth not appear at the trial,
either party may pray a tales. A tales is a supply of siwh
men as are summoned upon the first panel in order to make
3. On account of crime. 4. This is the constant practice
As to all the above challenges the everywhere where the common law
student will find statutory regula- trial by jury exists.
tion. The statutes and local works 5. Always a matter of statutory
on Practice must always be con- regulation.
suited.
CHAP. XXIII.] OF THE TRIAL BY JURY. 587
up the deficiency. For this purpose a writ of decent tales,
octo tales, and the like, was used to be issued to the sheriff
at common law, and must be still so done at a trial at bar
if the jurors make default. But at the assises or nisi prius,
by virtue of the statute 35 Hen. VIII. c. 6, and other subse-
quent statutes, the judge is empowered at the prayer of
either party to award a tales de circumstantibus 6 of persons
present in court, to be joined to the other jurors to try the
cause, who are liable, however, to the same challenges as the
principal jurors. [365] This is usually done till the legal
number of twelve be completed.
When a sufficient number of persons impanelled, or tales-
men, appear, they are then separately sworn well and truly
to try the issue between the parties, and a true verdict to
give according to the evidence, and hence they are denomi-
nated the jury (jurata) and jurors (sc. juratores) . 7
The jury are now ready to hear the merits, and, to fix
their attention the closer to the facts which they are im-
panelled and sworn to try, the pleadings are opened to them
by counsel on that side which holds the affirmative of the
question in issue. For the issue is said to lie, and proof
is always first required upon that side which affirms the
matter in question. 8 [366] The opening counsel briefly
informs them what has been transacted in the court above,
the parties, the nature of the action, the declaration, the
plea, replication, and other proceedings, and lastly, upon
what point the issue is joined which is there set down to
be determined. The nature of the case and the evidence
intended to be produced are next laid before them by
counsel also on the same side; and when their evidence is
gone through the advocate on the other side opens the
adverse case and supports it by evidence, and then the
party which began is heard by way of reply. 9 [367]
6. Such men from those standing the general issue is one of the pleas
around. This practice or some modi- of the defendant in which case the
fication thereon prevails generally in plaintiff always opens and closes the
this country. See the statutes. case.
7. Here the whole jury usually rise 9. Sometimes with us the defend-
and are sworn at once. ant makes his opening statement be-
8. This is the general rule unless fore any evidence is heard.
588
OF THE TRIAL BY JURY.
[BooK III.
Evidence signifies that which demonstrates, makes clear,
or ascertains the truth of the very fact or point in issue,
either on the one side or on the other, 1 and no evidence
ought to be admitted to any other point.
Evidence in the trial by jury is of two kinds, either that
which is given in proof or that which the jury may receive
by their own private knowledge. 2 The former, or proofs
(to which in common speech the name of evidence is usually
confined), are either written or parol, that is, by word of
mouth. Written proofs, or evidence, are, 1. Records, 3 and
2. Ancient deeds of thirty years standing which prove them-
selves; 4 but 3. Modern deeds, and 4. Other writings, must
be attested and verified by parol evidence of witnesses.
[368] And the one general rule that runs through all tho
doctrine of trials is this, that the best [legal] evidence the
nature of the case will admit of shall always be required,
if possible to be had, but if not possible, then the best
[legal] evidence that can be had shall be allowed. 6 For if
1. The student is especially referred
to the able and exhaustive work on
Evidence by Mr. Chamberlayne.
2. Not allowable. All evidence
must be given in open court. f
3. Proved by the proper official cus-
todian or by properly certified copies.
4. If produced from the proper cus-
tody.
5. No rule of law is more fre-
quently cited, and more generally
misconceived, than this. It is cer-
tainly true when rightly understood;
but it is very limited in its extent
and application. It signifies nothing
more than that, if the best legal evi-
dence cannot possibly be produced, the
next best legal evidence shall be ad-
mitted. Evidence may be divided in-
to primary and secondary : and the
secondary evidence is aa accurately
defined by the law as the primary.
But in general the want of better evi-
dence can never justify the admission
of hearsay, or the copies of copies,
etc. Where there are exceptions to
general rules, these exceptions are as
much recognized by the law as the
general rule; and where boundaries
and limits are established by the law
for every case that can possibly oc-
cur, it is immaterial what we call
the rule, and what the exception.
If the subscribing witness be living
and within the jurisdiction of the
court, he must be called to prove the
execution ; or if he cannot be found,
and that fact be satisfactorily ex-
plained, proof of his hand-writing
will be sufficient evidence of the exe-
cution. Barnes v. Trompowsky, 7 T.
R. 266. And the witness of the exe-
cution is necessary; acknowledgment
of the party who executed the deed
cannot be received. Johnson v. Ma-
son. 1 Esp. 89. At least only as sec-
ondary evidence. Call, Bart. v. Dun-
ning, 4 East, 53. And acknowledg-
ment to a subscribing witness by an
obligor of a bond that he has exe-
CHAP. XXITL] OF THE TRIAL BY JURY. 589
it be found that there is any better evidence existing than
is produced, the very not producing it is a presumption
that it would have detected some falsehood that at present
is concealed. Thus, in order to prove a lease for years,
nothing else shall be admitted but the very deed of lease
itself, if in being; but if that be positively proved to be
burnt or destroyed (not relying on any loose negative, as
that it cannot be found, or the like), then an attested copy
may be produced, or parol evidence be given of its con-
tents. So, no evidence of a discourse with another will be
admitted, but the man himself must be produced; yet in
some cases (as in proof of any general customs, or matters
of common tradition or repute), the courts admit of hear-
say 6 evidence, or an account of what persons deceased have
declared in 'their lifetime ; but such evidence will not be re-
ceived of any particular facts. So, too, books of account
or shop-books are not allowed of themselves to be given in
evidence for the owner, but a servant who made the entry
may have recourse to them to refresh his memory; and if
such servant (who was accustomed to make those entries)
be dead, and his hajid be proved, the book may be read in
evidence. 7
With regard to parol evidence, or witnesses, it must first
be remembered that there is a process to bring ttiem in by
writ of subpoena ad testificandum, 8 which commands them,
laying aside all pretences and excuses, to appear at the
trial on pain of 100/. to be forfeited to the king, to which
cuted it, is sufficient. Powell v. wherever a subscribing witness ap-
Blackett, 9 Esp. 87; and see Grellier pears to an instrument, note, etc., he
v. Xeale, Peake, 146. But a mere must be called or his absence ex-
bystander may not be received to sup- plained. See Higgs v. Dixon, 2 Stark,
ply the absence of the subscribing 180; Breton v. Cope, Peake, 31. See
witness (M'Craw v. Gentry, 3 Campb. Chamberlayne on Evidence, 464 et
232), or only as secondary evidence, seq.; Id., 2574 et scq.
see the next case. If -the apparent 6. See, generally, Chamberlayne on
attesting witness deny that he saw Evidence. 464, 2574.
the execution, secondary evidence is 7. See the leading case of Price v.
admissible; that is to say, the hand- The Earl of Torrington, Salk. 285;
writing of the obligor, etc.. may be 1 Smith's Lead. Cas. *390 and note,
proved. Ley v. Ballard. 3 Esp. 173 n. 8. This is the ordinary subpoena in
And, as a general rule, it seems that universal use.
590 OF THE TRIAL BY JURY. [BOOK III.
the statute 5 Eliz. c. 9, has added a penalty of 201. to the
party aggrieved, and damages equivalent to the loss sus-
tained by want of his evidence. [369] But no witness, un-
less his reasonable expenses be tendered him, is bound to
appear at all; 9 nor, if he appears, is he bound to give evi-
dence till such charges are actually paid him, except he re-
sides within the bills of mortality, and is summoned to give
evidence within the same. This compulsory process to
bring in unwilling witnesses, and the additional terrors of
an attachment in case of disobedience, 1 are of excellent use
in the thorough investigation of truth.
All witnesses, of whatever religion 2 or country, that have
the use of their reason, are to be received and examined,
except such as are infamous or such as are interested in the
event of the cause. All others are competent witnesses,
though the jury from other circumstances will judge of
their credibility. Infamous persons are such as may be
challeneged as jurors, propter delictum, and therefore never
shall be admitted to give evidence to inform that jury with
whom they were too scandalous to associate. [370] Inter-
ested witnesses 3 may be examined upon a voir dire, if sus-
pected to be secretly concerned in the event, or their inter-
est may be proved in court, which last is the only method
of supporting an objection to the former class, for no man
is to be examined to prove his own infamy. And no coun-
sel, attorney, or other person intrusted with the secrets of
the cause by the party himself, shall be compelled, or per-
haps allowed, to give evidence of such conversation or mat-
ters of privacy as came to his knowledge by virtue of such
trust and confidence; but. he may be examined as to mere
matters of fact, as the execution of a deed, or the like,
which might have come to his knowledge without being
intrusted in the cause. 4
9. So now, but the amount is fixed to competency on the ground of in-
by statute. terest and to make them extend solely
1. Still the practice. to the credibility of the witness. Con-
2. See the leading case of Omi- suit the local statutes.
chund v. Barker, Willes, 538; 1 4. This is the well-settled rule of
Smith's Lead Cas. *535. law everywhere both in civil and crim-
3. The general tendency of modern inal cases,
legislation is to remove all objections
CHAP. XXIII.] OF THE TRIAL BY JURY. 591
One witness (if credible [and believed by the jury] ) is
sufficient evidence to a jury of any singe facts, though un-
doubtedly the concurrence of two or more corroborates the
proof. 5
Positive proof is always required where from the nature
of the case it appears it might possibly have been had.
[371] But next to positive proof circumstantial evidence,
or the doctrine of presumptions, must take place; for when
the fact itself cannot be demonstratively evinced, that
which comes nearest to the proof of the fact is the proof
of such circumstances which either necessarily or usually
attend such facts, and these are called presumptions, which
are only to be relied upon till the contrary be actually
proved. Violent presumption is many times equal to full
proof, for there those circumstances appear which neces-
sarily attend the fact. As if a landlord sues for rent due
at Michaelmas, 1754, and the tenant cannot prove the pay-
ment, but produces an acquittance for rent due at a subse-
quent time, in full of all demands, this is a violent presump-
tion of his having paid 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 such payment, and it therefore in-
duces so forcible a presumption that no proof shall be ad-
mitted to the contrary. 6 Probable presumption arising
from such circumstances as usually attend the fact hath
also its due weight; as if, in a suit for rent due in 1754, the
tenant proves the payment of the rent due in 1755; this
will prevail to exonerate the tenant, unless it be clearly
shown that the rent of 1754 was retained for some special
reason, or that there was some fraud or mistake; for other-
5. There are several cases where Courts, on the other hand, limit the
more than one witness is required, number of witnesses on one point,
g., in treason, perjury (both con- e. g., character witnesses (Chamber-
sidered in Book 4) ; in chancery to layne on Evidence, 3326) ; of ex-
overcome a responsive answer re- perts. Id., 1804, note, 2276, note,
quired to be under oath (see vol. 2, 6. A receipt may be explained by
this series) ; in divorce cases (see parol evidence. Chamberlayne on
local works on Practice), and possibly Evidence, 1364, note 4.
other cases.
592 OF THE TRIAL BY JURY. [BOOK III.
wise it will be presumed to have been paid before that in
1755, as it is most usual to receive first the rents of longest-
standing. Light or rash presumptions have no weight or
validity at all.
The oath administered to the witness is not only that
what he deposes shall be true, but that he shall also depose
the whole truth ; so that he is not to conceal any part of what
he knows, whether interrogated particularly to that point
or not. [372] And all this evidence is to be given in open
court, in the presence of the parties, their attorneys, the
counsel, and all by-standers, and before the judge and jury;
each party having liberty to except 7 to its competency,
which exceptions are publicly stated, and by the judge are
openly and publicly allowed or disallowed, in the face of
the country. And if, either in his directions or decisions,
he mistakes the law by ignorance, inadvertence, or design,
the counsel on either side may require him publicly to seal
a bill of exceptions, stating the point wherein he is sup-
posed to err; and this he is obliged to seal by statute
Westm. 2, 13 Ed. I. c. 31, or if he refuses so to do, the party
may have a compulsory writ against him, commanding him
to seal it, if the fact alleged be truly stated; and if he re-
turns that the fact is untruly stated when the case is other-
wise, an action will lie against him for making a false re-
turn. This bill of exceptions is in the nature of an appeal,
examinable, not in the court out of which the record issues
for the trial at nisi pr'ms, but in the next immediate superior
court, upon a writ of error, after judgment given in the
court below. 8 But a demurrer to evidence shall be deter-
mined by the court out of which the record is sent. This
happens where a record or other matter is produced in evi-
dence concerning the legal consequences of which there
arises a doubt in law, in which case the adverse party may if
7. The word " object " is now com- upon a motion for a new trial. Its
monly used and " except " to refer to office is to incorporate into the record
the reservation of an objection to the for review those matters which are
court's ruling thereon. not part of the common law record.
8. A bill of exceptions is in the Consult local statutes and works on
states usually settled after the ruling Practice.
CJIAP. XXIII.] OF THE TEIAL BY JURY. 593
lie pleases demur to the whole evidence; which admits the
truth of every fact that has been alleged, but denies the
sufficiency of them all in point of law to maintain or over-
throw the isstie, which draws the question of law from the
cognizance of the jury to be decided (as it ought) by the
court. But neither these demurrers to evidence 9 nor the
bills of exceptions 1 are at present so much in. use as for-
merly, since the more frequent extension of the discretion-
ary powers of the court in granting a new trial, which is
now very commonly had for the misdirection of the judge at
nisi prius. 2 [373]
As to such evidence as the jury may have by their private
knowledge of facts, it was an ancient doctrine that this had
as much right to sway their judgment as the written or
parol evidence which is delivered in court. [374] And
therefore it hath been often held that though no proofs
be produced on either side, yet the jury might bring in a
verdict. For the oath of the jurors, to find according to
their evidence, was construed to be, to do it according to
the best of their own knowledge. But w r ith new trials, the
practice seems to have been first introduced, which now
universally obtains, that if a juror knows anything of the
matter in issue, he may be sworn as a witness and give his
evidence publicly in court. [375]
When the evidence is gone through on both sides, the
judge, in the presence of the parties, the counsel, and all
others, sums up the whole to the jury, omitting all super-
fluous circumstances, observing wherein the main question
and principal issue lies, stating what evidence has been
given to support it, with such remarks as he thinks neces-
sary for their direction, and giving them his opinion in mat-
ters of law arising upon that evidence. 3
9. Still in use in some jurisdictions, voluminous. See Hayne on New
but the more common practice is to Trials, 2 vols. (1912); Bayliss' New
move the court to direct a verdict Trials, 2d Ed. (1900). Still after
for insufficiency of the plaintiff's evi- the overruling of a motion for a new
dence. Chamberlayne on Evidence, trial, a bill of exceptions and appeal
140-144 and notes. or writ of error often follow as a
1. Bills of exceptions are in com- means of review.
inon use in the states. 3. Under our, practice the counsel
2. The literature of new trials is having the burden of proof opens and
38
594 OF THE TRIAL BY JURY. [BOOK ITT.
The jury, after the proofs are summed up, unless tho
case be very clear, withdraw from the bar to consider of
their verdict; and, in order to avoid intemperance and
causeless delay, are to be kept without meat, drink, fire, or
candle, unless by permission of the judge, till they are all
unanimously agreed. If our juries eat or drink at all, or
have any ea.tables about them, without consent of the court,
and before verdict, it is finable; and if they do so at his
charge for whom they afterwards find, it will set aside tho
verdict. Also if they speak with either of the parties or
their agents, after they are gone from the bar, or if they
receive any fresh evidence in private, or if, to prevent dis-
putes, they cast lots for whom they shall find, any of these
circumstances will entirely vitiate the verdict. 4 [376]
When they are all unanimously agreed, the jury return
back to the bar, and, before they deliver their verdict, the
plaintiff is bound to appear in court, by himself, attorney,
or counsel, in order to answer the amercement to which by
the old law he is liable, in case he fails in his suit, as a
punishment for his false claim. The amercement is dis-
used, but the form still continues; and if the plaintiff does
not appear, no verdict can be given, but the plaintiff is said
to be nonsuit, non sequitur clamorem suum. 5 Therefore it
is usual for a plaintiff, when he or his counsel perceives that
he has not given evidence sufficient to maintain his issue, to
be voluntarily nonsuited, or withdraw himself; whereupon
the crier is ordered to call the plaintiff, and if neither he nor
anybody for him appears, he is nonsuited, the jurors are dis-
charged, the action is at an end, and the defendant shall
closes the argument to the jury and tice and one that often defeats the
the charge or instructions of the ends of justice. The judge should be
court is not given till arguments of allowed to sum up and required to
counsel are finished. In many states instruct the jury,
there are statutes prohibiting the ex- 4. See works on New Trials cited
pression of any opinion or comment above; also Chamberlayne on Evi-
on the facts by the judge and often it dence, 306 et seq.
is nquired that his so-called instruc- 5. He does not follow up his com-
tions be in writing; in other words plaint. We do not understand that
the judge is substantially reduced to the plaintiff will now be nonsuited for
the position of a moderator. In our nonappearance.
judgment this is a most vicious prac-
CHAP. XXIII. ] OF THE TRIAL BY JURY. 505
recover his costs. The reason of this practice is that a
nonsuit is more eligible for the plaintiff than a verdict
against him, for after a nonsuit, which is only a default, he
may commence the same suit again for the same cause of
action; but after a verdict had, and judgment consequent
thereupon, he is [unless the same is reversed] forever
barred from attacking the defendant upon the same ground
of complaint. [377] But in case the plaintiff appears, the
jury by their foreman deliver in their verdict.
A verdict, vere dictum, is either privy or public. A privy
verdict is when the judge hath left or adjourned the court;
and the jury, being agreed, in order to be delivered from
their confinement, obtain leave to give their verdict privily
to the judge out of court, which privy verdict is of no force
unless afterwards affirmed by a public verdict given openly
in court, wherein the jury may, if they please, vary from the
privy verdict. 6 So that the privy verdict is indeed a mere
nullity; and yet it is a dangerous practice, allowing time
for the parties to tamper with the jury, and therefore very
seldom indulged. But the only effectual and legal verdict
is the public verdict, in which they openly declare to have
found the issue for the plaintiff or for the defendant; and
if for the plaintiff, they assess the damages also sustained
by the plaintiff in consequence of the injury upon which
the action is brought.
Sometimes, if there arises in the case any difficult matter
of law, the jury, for the sake of better information and to
avoid the danger of having their verdict attainted, will find
a special verdict, 7 which is grounded on the statute of
Westm. 2, 13 Edw. I. c. 30, 2. And herein they state the
naked facts 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 should be of opinion that
the plaintiff had cause of action, they then find for the
plaintiff; if otherwise, then for the defendant. This is
6. Or sealed verdict by consent ot' upon certain questions submitted to
counsel. them, as well as to find a general
7. By statute in some states the verdict. Consult local statutes and
jury may be required to find specially works on Practice.
596 OF THE TKIAL BY JUEY. [BOOK III.
entered at length on the record, and afterwards argued and
determined in the court at Westminster from whence the
issue came to be tried.
Another method of finding a species of special verdict is
when the jury find a verdict generally for the plaintiff, but
subject, nevertheless, to the opinion of the judge or flic
court above, on a special case stated by the counsel on both
sides with regard to a matter of lav/, which has this advan-
tage over a special verdict, that it is attended with much
less expense and obtains a much speedier decision, and
posted (of which .in the next chapter) being stayed in the
hands of the officer of nisi prias till the question is deter-
mined, and the verdict is then entered for the plaintiff or
defendant, as the case may happen. 8 [3781 But, as nothing
appears upon the record but the general verdict, the par-
ties are precluded hereby from the benefit of a writ of error,
if dissatisfied with the judgment of the court or judge upon
the point of law. But in both these instances the jury may,
if they think proper, take upon themselves to determine, at
their own hazard, the complicated question of fact and law;
and, without either special verdict or special case, may
find a verdict absolutely either for the plaintiff or de-
fendant.
When the jury have delivered in their verdict, and it
is recorded in court, they are then discharged. And so
ends the trial by jury. The principal defects of the system
seem to be,
1. The want of a complete discovery by the oath of tho
parties. This each of them is now entitled to have, by
going through the expense and circuity of a court of equity,
and therefore it is sometimes had by consent, even in the
courts of law. 9 [382]
2. A second defect is the want of a compulsive power
for the production of books and papers belonging to the
parties. 1 In the hands of third persons they can generally
be obtained by rule of court, or by adding a clause of requi-
8. See statutes and local works on party may be called and examined as
Practice. a witness. Consult local statutes.
9. In many of the states either 1. See local statutes.
CHAP. XXIII.] OF THE TRIAL BY JURY. 597
sition to the writ of subpoena, which is then called a sub-
poena duces tecum. 2
3. Another want is that of powers to examine witnesses
abroad, and to receive their depositions in writing where
the witnesses reside, and especially when the cause of ac-
tion arises in a foreign country. [383] To which may be
added the power of examining witnesses that are aged, or
going abroad, upon interrogatories de bene esse, to be read
in evidence if the trial should be deferred till after their
death or departure, but otherwise to be totally suppressed.
Both these are now very frequently effected by mutual con-
sent if the parties are open and candid, and they may also
be done indirectly at any time, through the channel of a
court of equity; but such a practice has never yet been
directly adopted as the rule of a court of law. 3 Yet where
the cause of action^ arises in India, and a suit is brought
thereupon in any 'of the king's courts at Westminster, the
court may issue a commission to examine witnesses upon
the spot and transmit the depositions to England.
4. The courts of law will [in case of local prejudice on
the part of the jurors] in transitory actions very often
change the venue, or county wherein the cause is to be tried ;
but in local actions, though they sometimes do it indirectly
and by mutual consent, yet to effect it directly and abso-
lutely, the parties are driven to a court of equity, where,
upon making out a proper case, it is done upon the ground
of being necessary to a fair, impartial, and satisfactory
trial. 4 [384]
2. Under penalty bring with you. suit the local statutes and books on
This writ is in common use. Practice.
3. These defects have in many 4. This may now be done in a court
states been remedied by statutes. Con- of law. Tidd (8th Ed.), 655. See
local statutes and works on Practice.
OF JUDGMENT AND ITS INCIDENTS. [BOOK III.
CHAPTER XXIV.
OF JUDGMENT AND ITS INCIDENTS.
If the issue be an issue of fact, whatever is done subse-
quent to the joining of issue and awarding the trial, it is
entered on record, and is called a postea. [386] The sub-
stance of which is, that postea, aftenoards, the said plain-
tiff and defendant appeared by their attorneys at the place
of trial, and a jury, being sworn, found such a verdict, or
that the plaintiff, after the jury sworn, made default and
did not prosecute his suit, or as the case may happen. This
is added to the roll, which is now returned to the court
from which it was sent, and the history of the cause from
the time it was carried out is thus continued by the postea. 1
Next follows, sixthly, the judgment of the court upon
what has previously passed, both the matter of law and
matter of fact being now fully weighed and adjusted.
Judgment may, however, for certain causes be suspended,
or finally arrested, for it cannot be entered till the next
term after trial had, and that upon notice to the other
party. 2 [387] So that if any defect of justice happened
at the trial by surprise, inadvertence, or misconduct, the
party may have relief in the court above by obtaining a
new trial; or if, notwithstanding the issue of fact be regu-
larly decided, it appears that the complaint was either not
actionable in itself or not made with sufficient precision and
accuracy, the party may supersede it by arresting or staying
the judgment.
1. Causes of suspending the judgment by granting a new
trial are at present wholly extrinsic,, arising from matter
foreign to or dehors the record. Of this sort are want of
notice of trial, or any flagrant misbehavior of the party
1. Under our practice no postea in 2. Entered of course with us, unless
the sense of the author is required, stayed by motion for new trial or in
although, of course, all the findings arrest of judgment which are, as a
appear on file or in the entries on the rule, considered as one motion. See
books of records. local works on Practice.
CHAP. XXIV.] OF JUDGMENT AND ITS INCIDENTS. 599
prevailing towards the jury which may have influenced
their verdict, or any gross misbehavior of the jury among
themselves; also, if it appears by the judge's report, certi-
fied by the court, that the jury have brought in a verdict
without or contrary to evidence, so that he is reasonably
dissatisfied therewith, or if they have given exorbitant dam-
ages, or if the judge himself has misdirected the jury, so
that they found an unjustifiable verdict, for these and
other reasons of the like kind it is the practice of the court
to award a new, or second, trial. But if two juries agree in
the same or a similar verdict, a third trial is seldom
awarded; for the law will not readily suppose that the ver-
dict of any one subsequent jury can countervail the oaths
of the two preceding ones.
A new trial is a rehearing of the cause before another
jury, but w r ith as little prejudice to either party as if it
had never been heard before. [391] No advantage is taken
of the former verdict on the one side, or the rule of court for
awarding such second trial on the other.
A sufficient ground must, however, be laid before the
court to satisfy them that it is necessary to justice that the
cause should be farther considered. If the matter be such
as did not or could not appear to the judge who presided at
nisi prius, it is disclosed to the court by affidavit;* if it
arises from what passed at the trial, it is taken from the
judge's information, who usually makes a special and
minute report of the evidence. Counsel are heard, on both
sides to impeach or establish the verdict, and the court give
their reasons at large why a new examination ought or
ought not to be allowed. [392] Nor do the courts lend too
easy an ear to every application for a review of the former
verdict. They must be satisfied that there are strong prob-
able grounds to suppose that the merits have not been fairly
and fully discussed, and that the decision is not agreeable
to the justice and truth of the case. A new trial is not
granted where the value is too inconsiderable to merit a
3. See preceding notes. The evi- proceedings on the motion for a new
dence in support of a new trial is trial are included in the record, when
usually presented by affidavit. The necessary, by a bill of exceptions.
600 OF JUDGMENT AND ITS INCIDENTS. [BOOK III.
second examination. It is not granted upon nice and for-
mal objections which do not go to the real merits. It is
not granted in cases of strict right or Kiininiuni jits, where
the rigorous exaction of extreme legal justice is hardly
reconcilable to conscience. Nor is it granted where the
scales of evidence hang nearly equal; that which leans
against the former verdict ought always very strongly to
preponderate.
In granting such farther trial (which is matter of sound
discretion) the court has also an opportunity, which it sel-
dom fails to improve, of supplying those defects in this
mode of trial which were stated in the preceding chapter,
by laying the party applying under all such equitable terms
as his antagonist shall desire and mutually offer to comply
with, such as the discovery of some facts upon oath, the
admission of others not intended to be litigated, the pro-
duction of deeds, books, and papers, the examination of wit-
nesses, infirm, or going beyond sea, and the like. And the
delay and expense of this proceeding are so small and tri-
fling that it seldom can be moved for to gain time or to
gratify humor. The motion must be made within the first
four days of the next succeeding term, within which term
it is usually heard and decided.
2. Arrests of judgment arise from intrinsic causes appear-
ing upon the face of the record. Of this kind are, first,
where the declaration varies totally from the original writ
[or process], as where the writ is in debt or detinue, and the
plaintiff declares in an action on the case for an assnmpsit.
Also, secondly, where the verdict materially differs from
the pleadings and issue thereon, as if in an action for words
it is laid in the declaration that the defendant said, " the
plaintiff is a bankrupt," and the verdict finds specially that
he said, " the plaintiff will be a bankrupt." 4 Or, thirdly,
if the case laid in the declaration is not sufficient in point
of law to found an action upon. And this is an invariable
4. If a verdict is taken generally, general verdict of guilty upon an in-
with entire damages, judgment may cUctment consisting of several counts,
be arrested if any one count in the and any one count is good, that is
declaration is bad; but if there is a held to be sufficient. Doug. 730.
CHAP. XXIV.] OF JUDGMENT AND ITS INCIDENTS. 601
rule with regard to arrests of judgment upon matter of law,
" that whatever is alleged in arrest of judgment must be
such matter as would upon demurrer have been sufficient
to overturn the action or plea. " [394] As if, on an action
for slander in calling the plaintiff a Jew, the defendant
denies the words, and issue is joined thereon. Now, if a
verdict be found for the plaintiff that the words were
actually spoken, whereby the fact is established, still the
defendant may move in arrest of judgment that to call a
man a Jew is not actionable; and if the court be of that
opinion the judgment shall be arrested and never entered
for the plaintiff. But the rule will not hold e converse, 5
" that everything that may be alleged as cause of demurrer
will be good in arrest of judgment; " for if a declaration
or plea omits to state some particular circumstance, with-
out proving of which at the trial it is impossible to support
the action or defence, this omission shall be aided by a ver-
dict, as if, in an action of trespass, the declaration doth not
allege that the trespass was committed on any certain day,
though this defect might be good cause to demur to the
declaration or plea, yet if the adverse party omits to take
advantage of such omission in due time, but takes issue,
and has a verdict against him, this exception cannot after
verdict be moved in arrest of judgment. For the verdict
ascertains those facts which before, from the inaccuracy
of the pleadings, might be dubious, since the law will not
suppose that a jury under the inspection of a judge would
find a verdict for the plaintiff or defendant unless he had
proved those circumstances without which his general alle-
gation is defective. Exceptions, therefore, that are moved
in arrest of judgment must be much more material and
glaring than such as will maintain a demurrer, or, in other
words, many inaccuracies and omissions, which would be
fatal if early observed, are cured by a subsequent verdict,
and not suffered in the last stage of a cause to unravel the
whole proceedings. But if the thing omitted be essential to
the action or defence, as if the plaintiff does not merely
state his title in a defective manner, but sets forth a title
5. To the contrary.
602 OF JUDGMENT AND ITS INCIDENTS. [BOOK III.
that is totally defective in itself, or if to an action of debt
the defendant pleads not guilty instead of nil dcbet, these
cannot be cured by a verdict for the plaintiff in the first
case, or for the defendant in the second. [395]
If, by the misconduct or inadvertence of the pleaders,
the issue be joined on a fact totally immaterial, or insuffi-
cient to determine the right, so that the court upon the
finding cannot know for whom judgment ought to be given,
as if, in an action on the case in assumpsit against an execu-
tor, he pleads that he himself (instead of the testator)
made no such promise. In this case the court will after ver-
dict award a repleader quod paries replacitant? unless it
appears from the whole record that nothing material can
possibly be pleaded in any shape whatsoever, and then a
pleader would be fruitless. And whenever a repleader is
granted, the pleadings must begin de novo at that stage of
them, whether it be the plea, replication, or rejoinder, &c.,
wherein there appears to have been the first defect or devia-
tion from the regular course. 7
If judgment is not by some of these means arrested within
the first four days of the next term after the trial, it is then
to be entered on the roll or record. Judgments are ^g sen .
tence of the law, pronounced by the court upon the matter
contained in the record, and are of four sorts : First, where
the facts are confessed by the parties and the law deter-
mined by the court, as in case of judgment upon demurrer;
secondly, where the law is admitted by the parties and the
facts disputed, as in case of judgment on a verdict; thirdly,
where both the fact and the law arising thereon are ad-
mitted by the defendant, which is the case of judgments
by confession or default; or, lastly, where the plaintiff is
convinced that either fact, or law, or both, are insufficient
to support his action, and therefore abandons or withdraws
his prosecution, which is the case in judgments upon a
nonsuit or retraxit. [396]
The judgment, though pronounced or awarded by the
6. That the parties replead. ments and jeofails. See Rev. Stat.
7. In probably all the states there 111., ch. 7. Consult local statutes and
are now liberal statutes of- amend- books on Practice.
CHAP. XXIV.] OF JUDGMENT AND ITS INCIDENTS. 603
judges, is not their determination or sentence, but the deter-
mination and sentence of the law. Therefore the style of
the judgment is, not that it is decreed or resolved by the
court, for then the judgment might appear to be their own,
but " it is considered," consideratum est per curiam? that
the plaintiff do recover his damages, his debt, his posses-
sion, and the like, which implies that the judgment is none
of their own, but the act of law, pronounced and declared
by the court after due deliberation and inquiry.
All these species of judgments are either interlocutory
or final. Interlocutory judgments are such as are given in
the middle of a cause upon some plea, proceeding, or de-
fault, which is only intermediate and does not finally deter-
mine or complete the suit. Of this nature are all judgments
for the plaintiff upon pleas in abatement of the suit or action,
in which it is considered by the court that the defendant do
answer over, respondeat ouster, that is, put in a more sub-
stantial plea. [397] But the interlocutory judgments most
usually spoken of are those incomplete judgments, whereby
the right of the plaintiff is indeed established, but the
quantum of damages sustained by him is not ascertained,
which is a matter that cannot be done without the interven-
tion of a jury. This can only happen where the plaintiff
recovers, for when judgment is given for the defendant it is
always complete as well as final. And this happens, in the
first place, where the defendant suffers judgment to go
against him by default, or nihil dicit; 9 as if he puts in no
plea at all to the plaintiff's declaration, by confession or
cognovit actionem, 1 where he acknowledges the plaintiff's de-
mand to be just; or by mm sum informatus, 2 when the de-
fendant's attorney declares he has no instruction to say
anything in answer to the plaintiff or in defence of his
client, which is a species of judgment by default. If these,
or any of them, happen in actions where the specific thing 1
sued for is recovered, as in actions of debt for a sum certain,
the judgment is absolutely complete. And therefore it is
very usual, in order to strengthen a creditor's security, for
8. It is considered by the court. 1. He confesses the action.
9. He says nothing. 2. I am not informed.
604 OF JUDGMENT AND ITS INCIDENTS. [BooKllT.
the debtor to execute a warrant of attorney to some attorney
named by the creditor, empowering him to confess a judg-
ment 3 by either of the ways just now mentioned (by nihil
(licit, cognovit actioncm, or non sum uiforniatux) in an action
of debt to be brought by the creditor against the debtor for
the specific sum due; which judgment, when confessed, is
absolutely complete and binding, provided the same (as is
also required in all other judgments) be regularly docquetted,
that is, abstracted and entered in a book, according to tli<>
directions of statute 4 & 5 W. & M. c. 20. [398] But where
damages are to be recovered, a jury must be called in to
assess them, unless the defendant, to save charges, will con-
fess the whole damages laid in the declaration; otherwise
the entry of the judgment is " that the plaintiff ought to
recover his damages (indefinitely), but because the court
know not what damages the said plaintiff hath sustained,
therefore the sheriff is commanded, that by the oaths of
twelve honest and lawful men he inquire into the said dam-
ages, and return such inquisition into court." This process
is called a writ of inquiry, in the execution of which the
sheriff sits as judge, and tries by a jury, subject to nearly
the same laws and conditions as the trial by jury at nisi priiix.
what damages the plaintiff hath really sustained; 4 and when
their verdict is given, which must assess some damages, the
sheriff returns the inquisition, which is entered upon the roll
in manner of a posted, and thereupon it is considered that
the plaintiff do recover the exact sum of the damages so
assessed. In like manner, when a demurrer is determined
for the plaintiff upon an action wherein damages are recov-
ered, the judgment is also incomplete without the aid of a
writ of inquiry.
Final judgments are such as at once put an end to the
3. A very common practice now. usually provided by statute. See the
The authority is often made a part local statutes and books on Practice.
of the security, i. e., written or printed Where a case is tried before a jury,
on the same paper. the jury, if they find for the plain--
4. This practice may still prevail tiff, usually assess his damages in the
in some of the states, but a more verdict.
eimple and expeditious proceeding is
CHAP. XXIV.] OF JUDGMENT AND ITS INCIDENTS. 605
action by declaring that the plaintiff lias either entitled
himself, or has not, to recover the remedy he sues for.
In which case, if the judgment be for the plaintiff, it is also considered
that the defendant be either amerced for his wilful delay of justice ia
not immediately obeying the king's writ by rendering the plaintiff his
due, or be taken up, capitur, till he pays a fine to the king for the public
misdemeanor which is coupled with the private injury in all cases of
force, etc. But if judgment be for the defendant, then in case of fraud
and deceit to the court, OT malicious or vexatious suits, the plaintiff may
also be fined: but in most cases it is only considered that he and his
pledges of prosecuting be (nominally) amerced for his false claim, pro
falso clamore. suo, and that the defendant may go thereof without a day,
eat inde sine die, that is, without any farther continuance or adjournment,
the king's writ commanding his attendance being now fully satisfied
and his innocence publicly cleared. [399]
Thus much for judgments, to which costs are a necessary
appendage, it being now [by statute] as well the maxim of
ours as of the civil law, that " victus victori in expensis con-
demnandus est;" 5 though the common law did not pro-
fessedly allow any, the amercement of the vanquished party
being his only punishment. These cases on both sides are
taxed and moderated by the prothonotary, or other proper
officer of the court.
After judgment is entered execution will immediately
follow, unless the party condemned thinks himself unjustly
aggrieved by any of these proceedings, and then he has his
remedy to reverse them by several writs in the nature of
appeals, which we shall consider in the succeeding chapter.
[401]
5. This is, in a small way, a rep- of the costs, when allowed, and how
tition of the maxim that " to the taxed are regulated by statute,
victor belong the spoils." The amount
606 OF APPEALS. BOOK III.
CHAPTER XXV.
OF PROCEEDINGS IN THE NATURE OF APPEALS.
Proceedings in the nature of appeals from the proceed-
ings of the king's courts of law are principally four. [402]
I. A writ of attaint, which lieth to inquire whether a jury of i-<!re
men gave a false verdict, that so the judgment following thereupon may
be reversed; and this must be brought in the lifetime of him for whom
the verdict was given, and of two at least of the jurors who gave it.
[Obsolete.] The jury who are to try this false verdict must be twenty-
four, and are called the grand jury. He that brings the attaint tan
give no other evidence to the grand jury than what was originally given
to the petit. But those again&t whom it is brought are allowed, in affirm-
ance of the first verdict, to produce new matter, because the petit jury
may have formed their verdict upon evidence of their own knowledge
which never appeared in court. [404]
II. The writ ef deceit, or action on tlie case in nature of it, may be
brought in the Court of Common Pleas to reverse a judgment there had
by fraud or collusion in a real action whereby lands and tenements have
been recovered to the prejudice of him that hath right. [405] [Obsolete.]
III. An audita querela is where a defendant, against
whom judgment is recovered and who is therefore in danger
of execution, or perhaps actually in execution, may be re-
lieved upon good matter of discharge which has happened
since the judgment; as if the 'plaintiff hath given him a
general release, or if the defendant hath paid the debt to the
plaintiff without procuring satisfaction to be entered on the
record. In these and the like cases wherein the defendant
hath good matter to plead, but hath had no opportunity of
pleading it (either at the beginning of the suit or puis (Jarre in
continuance, 1 which must always be before judgment), au
audita querela lies, in the nature of a bill in equity, to be
relieved against the oppression of the plaintiff. It is a writ
directed to the court stating that the complaint of the de-
fendant hath been heard, audita querela defendentis? and
1. Since the last continuance. 2. The complaint of the defendant
having been heard.
CHAP. XXV.] OF APPEALS. 607
then setting 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 cause justice to be done
between them. It also lies for bail when judgment is ob-
tained against them by scire facias to answer the debt of their
principal, and it happens afterwards that the original judg-
ment against their principal is reversed; for here the bail,
after judgment had against them, have no opportunity to
plead this special matter, and therefore they shall have re-
dress by audita querela. But the indulgence now shown by
the courts in granting a summary relief upon motion, 3 in
cases of such evident oppression, has almost rendered use-
less the writ of audita querela, and driven it quite out of
practice. [406]
IV. But, fourthly, the principal method of redress for
erroneous judgments in the king 's court of record is by writ
of error to some superior court of appeal.
A writ of errror lies for some supposed mistake in the
proceedings of a court of record; for to amend errors in a
base court, not of record, a writ of false judgment lies. The
writ of error only lies upon matter of law arising upon the
face of the proceedings; so that no evidence is required to
substantiate or support it, there being no method of revers-
ing an error in the determination of facts, but by an attaint
or a new trial, to correct the mistakes of the former verdict.
When once the record was made up, it was formerly held
that by the common law no amendment could be permitted,
unless within the very term in which the judicial act so
recorded was done ; for during the term the record is in the
breast of the court, but afterwards it admitted of no altera-
tion. But now the courts are become more liberal, and,
where justice requires it, will allow of amendments at any
time while the suit is depending, notwithstanding the record
be made up and the term be past. For they at present
consider the proceedings as in fieri, till judgment is given,
and therefore that, till then, they have power to permit
amendments by the common law; but when judgment is
3. Special motion supported by affi-
davit.
608 OF APPEALS. BOOK III.
once given and enrolled, 4 no amendment is permitted in any
subsequent term. 5 [407] Mistakes are also effectual! y
helped by the statutes of amendment and jeofails, 6 so called
because when a pleader perceives any slip in the form of his
proceedings, and acknowledges such error (jeo faile), he is
at liberty by those statutes to amend it; which amendment
is seldom actually made, but the benefit of the acts is at-
tained by the courts overlooking the exception. These stat-
utes are many in number, and by them all trifling exceptions
are so thoroughly guarded against that writs of error can-
not now be maintained but for some material mistake
assigned.
If a writ of error 7 be brought to reverse any judgment
of an inferior court of record, where the damages are less
than ten pounds, or if it is brought to reverse the judgment
of any superior court after verdict, he that brings the writ,
or that is plaintiff in error, must (except in some peculiar
cases) find substantial pledges of prosecution or bail, to
prevent delays by frivolous pretences to ^appeal, and for
securing payment of costs and damages, which are now
payable by the vanquished party in all, except in a few
particular instances. [411]
Each court of appeal, in their respective stages, may,
upon hearing the matter of law in which the error is as-
signed, reverse or affirm the judgment of the inferior courts,
but none of them are final save only the House of Peers, to
whose judicial decisions all other tribunals must therefore
submit and conform their own.
4. Enrollment in the sense here used 6. See Rev. Stat. 111., ch. 7, and
is no longer necessary. ante, p. *454, note.
5. Where the judgment has been 7. The ordinary method of review
entered and the term ended, without in an appellate jurisdiction of the
any stay order on a motion for a new judgment of an inferior court is by
trial, there can be no amendment of an appeal or writ of error, the latter
the record unless the minute books, of which is a new suit begun in the
entries or files contain matter suffi- appellate court, while the former ia
cifnt to serve as a basis for th prayed and allowed in the court be-
amendment. low.
XXVI.] OF EXECUTION. 609
CHAPTER XXVI.
or EXECUTION;.
If the regular judgment of the court, after the decisions
of the suit, be not suspended, superseded, or reversed by
one or other of the methods mentioned in the two preceding
chapters, the next and 'last step is the execution of that
judgment, or putting the sentence of the law in force. [412]
This is performed in different manners, according to the
nature of the action upon which it is founded, and of the
judgment which is had or recovered.
If the plaintiff recovers in an action, real 1 or mixed,
whereby the seisin or possession of land is awarded to him,
the writ of execution shall be an habere facias seisinam, or
writ of seisin of a freehold, or an habere facias possessionem,
or writ of possession of a chattel interest. These are writs
directed to the sheriff of the county, commanding him to give
actual possession to the plaintiff of the land so recovered, in
the execution of which the sheriff may take with him the posse
comitatus, or power of the county; and may justify breaking
open doors, if the possession 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 seisin, is sufficient
execution of the writ.
In other actions, where the judgment is that something
in special be done or rendered by the defendant, then, in
order to compel him so to do, and to see the judgment
executed, a special writ of execution issues to the sheriff
according to the nature of the case. [413] Upon a replevin
the writ of execution is the writ de retorno habendo, 2 and
if the distress be eloigned the defendant shall have a capias
in withernam; 3 but on the plaintiff's tendering the damages
and submitting to a fine, the process in icithernam shall be
stayed. In detinue, after judgment, the plaintiff shall have
a distringas, to compel the defendant to deliver the goods,
1. Real actions are obsolete. 3. See 2 Bouvier Law. Diet. With-
2. For having a return. ernam.
39 -?*
610 OF EXECUTION. [ BOOK III.
by repeated distresses of Ms chattels; or else a scire fa&a?
against any third person in whose hands they may happen
to be, to show cause why they should not be delivered. And
if the defendant still continues obstinate, then (if the judg-
ment hath been by default or on demurrer) the sheriff shall
summon an inquest to ascertain the value of the goods and
the plaintiff's damages, which (being either so assessed, or
by the verdict in case of an issue) shall be levied on tho
person or goods of the defendant.
Executions in actions where money only is recovered, as
a debt or damages (and not any specific chattel), are of five
sorts; either against the body of the defendant or against
his goods and chattels, or against his goods and the profits
of his lands, or against his goods and the possession of his
lands, or against all three, his body, lands, and goods. [414]
1. The first of these species of execution is by writ of
capias ad satisfaciendum, 4 which addition distinguishes it
from the former capias ad respondendum, which lies to com-
pel an appearance at the beginning of a suit. And, properly
speaking, this cannot be sued out against any but such as
were liable to be taken upon the former capias. The intent
of it is, to imprison the body of the debtor till satisfaction
be made for the debt, costs, and damages; it therefore doth
not lie against any privileged persons, peers, or members of
parliament, nor against executors or administrators, nor
against such other persons as could not be originally held to
bail. And Sir Edward Coke also gives us a singular in-
stance, where a defendant in 14 Edw. III. was discharged
from a capias, because he was of so advanced an age, qiwd
paenam imprisonamenti subire non protest. 5 If an action
4. In the states besides writs of writ for enforcing the payment of
possession, the ordinary writs of exe- money judgments; and, as a rule, th>
cution are: (1) The ca. sa. or capias statutes authorize the levy on and
ad respondendum which issues on a sale of personal and in default of
judgment for damages in actions ex personal, of real property under this
delicto and in special cases of actions writ. For the proceedings and prac-
ea> contractu accompanied by fraud, tice upon such levy and sales, see the
as has been already explained. As to local statutes and books on Practice,
this writ, see the local statutes and 5. Because he cannot endure im-
works of Practice. (2) The writ of prisonment.
ft. fa. or fieri facias is the common
CHAP. XXVI.] OF EXECUTION. , 611
be brought against an husband and wife for the debt of the
wife ,when sole, and the plaintiff recovers judgment, the
capias shall issue to take both husband and wife in execution ;
but if the action was originally brought against herself when
sole, and pending the suit she marries, the capias shall be
awarded against her only, and not against her husband. Yet,
if judgment be recovered against an husband and wife for the
contract, nay, even for the personal misbehavior of the wife
during her coverture, the capias shall issue against the hus-
band only.
When a man is once taken in execution upon this writ,
no other process can be sued out against his lands or goods.
Only by statute 21 Jac. I. c. 24, if the defendant dies while
charged in execution upon this writ, the plaintiff may, after
his death, sue out a new execution against his lands, goods,
or chattels. The writ is directed to the sheriff, command-
ing him to take the body of the defendant and have him at
Westminster on a day therein named, to make the plaintiff
satisfaction for his demand. And if he does not then make
satisfaction, he must remain in custody till he does. This
writ may be sued out, as may all other executory process,
for costs against a plaintiff as well as a defendant, when
judgment is had against him.
When a defendant is once in custody upon this process, he
is to be kept in arcta et salva custodia; 6 and if he be after-
wards seen at large, it is an escape, and the plaintiff may
have an action thereupon against the sheriff for his whole
debt. Escapes are either voluntary or negligent. Volun-
tary are such as are by the express consent of the keeper;
after which he never can retake his prisoner again (though
the plaintiff may retake him at any time), but the sheriff
must answer for the debt. Negligent escapes are where the
prisoner escapes without his keeper's knowledge or consent,
and then upon fresh pursuit the defendant may be retaken,
and the sheriff shall be excused if he has him again before
any action brought against himself for the escape. [416]
A rescue of a prisoner in execution, either going to gaol or
in goal, or a breach of prison, will not excuse the sheriff
6. In close and safe custody.
612 OF EXECUTION. [BOOK III.
from being guilty of and answering for the escape; for he
ought to have sufficient force to keep him, since he "may
command the power of the county.
If a capias ad satisfaciendum is sued out, -and a non est
inventus is returned thereon, the plaintiff may sue out a
process against the bail, if any were given; who stipulated
in this triple alternative, that the defendant should, if con-
demned in the suit, satisfy the plaintiff his debt and costs,
or that he should surrender himself a prisoner, or that they
would pay it for him. As therefore the two former
branches of the alternative are neither of them complied
with, the latter must immediately take place. In order to
which a writ of- scire facias may be sued out against the
bail, commanding them to show cause why the plaintiff
should not have execution against them' for his debt and
damages ; and on such writ, if they show no sufficient cause,
or the defendant does not surrender himself on the day of
the return, or of showing cause (for afterwards is not suffi-
cient), the plaintiff may have judgment against the bail
and take out a writ of capias ad satisfaciendum, 7 or other
process of execution against them. [417]
2. The next species of execution is against the goods and
chattels of the defendant, and is called a writ of fieri facias,
from the words in it where the sheriff is commanded, quod
fieri facias de bonis, 8 that he cause to be made of the goods
and chattels of the defendant the sum 1 or debt recovered.
This lies as well against privileged persons, peers, &c., as
other common persons, and against executors or adminis-
trators with regard to the goods of the . deceased. The
sheriff may not break open any outer doors to execute either
this or the former writ, but must enter peaceably, and may
then break open any inner door belonging to the defendant,
in order to take the goods. And he may sell the goods and
chattels* (even an estate for years, which is the chattel real)
of the defendant till he has raised enough to satisfy the
judgment and costs; first paying the landlord of the prem-
ises upon which the goods are found the arrears of rent
7. Capias for satisfaction [of the 8. Tliat he make of the goods. See
judgment], note above.
CHAP. XXVI.] OF EXECUTION. 613
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 satisfaciendum for the residue.
3. A third species of execution is by writ of levari facias [obsolete],
which affects a man's goods and the profits of his lands, by commanding
the sheriff to levy the plaintiff's debt on the lands and goods of the de-
fendant; whereby the sheriff may seize all his goods, and receive the
rents and profits of his lands till satisfaction be made to the plaintiff.
Little use is now made of this writ, the remedy by elegit, which takes
possession of the lands themselves, being much more effectual. [418]
4. The fourth species of execution is by the writ of elegit, 9 which is a
judicial writ given by the statute Westm. 2, 13 Edw. I. c. 18, either upon
a judgment for a debt or damages, or upon the forfeiture of a recogni-
zance taken in the king's court. By the common law a man oould only
have satisfaction of goods, chattels, and the present profits of lands, by
the two last mentioned writs of fieri facias or levari facias; but not the
possession of the lands themselves, which was a natural consequence of
the feodal principles, which prohibited the alienation, and of course the
incumbering, of the fief with the debts of the owner. And when the
restriction of alienation began to wear away, the consequence still con-
tinued, and no creditor could take the possession of lands, but only levy
the growing profits, so that if the defendant aliened his lands, the plain-
tiff was ousted of his remedy. The statute therefore granted this writ
(called an elegit, because it is in the choice or election of the plaintiff
whether he will sue out this writ or one of the former), by which the
defendant's goods and chattels are not sold, but only appraised; and all
of them (except oxen and beasts of the plough) are delivered to the
plaintiff, at such reasonable appraisement and price, in part of satisfac-
tion of his debt. If the goods are not sufficient, then the moiety or one
half of his freehold lands, which he had at the time of the judgment
given, whether held in his own name or by any other trust for him,
are also to be delivered to the plaintiff to hold, till out of the rents
and profits thereof the debt be levied, or till the defendant's interest be
expired. [419] During this period the plaintiff is called tenant by elegit.
This execution, or seizing of lands by elegit, is of so high a nature that
after it the body of the defendant cannot be taken. But if execution
can only be had of the goods, because there are no lands, and such
goods are not sufficient to pay the debt, a capias ad satisfaciendum may
then be had after the elegit; for such elegit is in this case no more in
effect than a fieri facias. So that body and goods may be taken in execu-
tion, or land and goods, but not body and land too, upon any judgment
9. Xot in general use in the United
States, though possibly it may still
be found to exist in one or two states.
614 OF EXECUTION. [BOOK III.
between subject and subject in the course of the common law. [420]
But,
5. Upon some prosecutions given by statute, as in the case of recogni-
zances or debts acknowledged on statutes merchant or statutes staple 1
(pursuant to the statutes 13 Edw. I. de mercatoribus, and 27 Edw. III. c.
9), upon forfeiture of these the body, lands, and goods may all be taken
at once in execution to compel the payment of the debt. The process
hereon is usually called an extent, or extendi facias, because the sheriff
is to cause the lands, etc.,' to be appraised to their full extended value
before he delivers them to the plaintiff, that it may be certainly known
how soon the debt will be satisfied.
Judgment between subject and subject related, even at
common law, no farther back than the first day of the term
in which they were recovered, 2 in. respect 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
statute of frauds, 29 Car. II. c. 3, the judgment shall not
bind the land in the hands of a bona fide purchaser, but only
from the day of actually signing the same, which is directed
by the statute to be punctually entered on the record; nor
shall the writ of execution bind the goods in the hands of a
stranger or the purchaser, but only from the actual delivery
of the writ to the sheriff or other officer, who is therefore
ordered to endorse on the back of it the day of his receiving
the same. [421]
These are the methods which the law of England has
pointed out for the execution of judgments; and when the
plaintiff's demand is satisfied, either by the voluntary pay-
ment of the defendant or by this compulsory process, or
otherwise, satisfaction ought to be entered on the record,
that the defendant may not be liable to be hereafter
harassed a second time on the same account. But all these
writs of execution must be sued out within a year and a
day after the judgment is entered, otherwise the court con-
cludes prima facie that the judgment is satisfied and ex-
1. Not in use in this country. that a judgment relates back to the
2. The reason for this relation was first day of terra, but the student
that originally the term of court was should consult the statutes upon the
only one day. When not changed by subject.
statute it is probably still the rule
CHAP. XXVI.] OF EXECUTION. 615
tinct; yet, however, it will grant a writ of scire facias in
pursuance of statute Westm. 2, 13 Edw. I. c. 45, for the de-
fendant to show cause why the judgment should not be
revived and execution had against him, to which the defend-
ant may plead such matter as he has to allege, in order to
show why process of execution should not be issued ; or the
plaintiff may still bring an action of debt, founded on this
dormant judgment, which was the only method of revival
allowed by the common law. 3
3. Still the law where not changed
by statute.
C16 PROCEEDINGS IN EQUITY. [BOOK III.
CHAPTER XXVII.
OF PROCEEDINGS IX THE COURTS OF EQUITY.
The same jurisdiction is exercised and the same system
of redress pursued in the Equity Court of the Exchequer
as in the Court of Chancery; with a distinction, however, as
to some few matters peculiar to each tribunal and in which
the other cannot interfere. [426] And as to those 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 its infant tenants was totally extin-
guished in every feodal view, but resulted to the king in his Court of
Chancery together with the general protection of all other infants in
the kingdom. [427] When, therefore, a fatherless child has no other
guardian, the Court of Chancery has a right to appoint one. 1 In this
and from all proceedings relative thereto an appeal lies to the House
of Lords. The Court of Exchequer can only appoint a guardian ad litem
to manage the defence of the infant if a suit be commenced against him,
a power which is incident to the jurisdiction of every court of justice;
but when the interest of a minor comes before the court judicially in
the progress of a cause, or upon a bill for that purpose filed, either
tribunal indiscriminately will take oare of the property of the infant.
2. As to idiots and lunatics, the king himself used formerly to commit
the custody of them to proper committees in every particular case; but
now, to avoid solicitations and the very shadow of undue partiality, a
warrant is issued by the king under his royal sign manual to the Chan-
cellor or Keeper of his Seal to perform this office for him; and if he acts
improperly in granting such custodies, the complaint must be made to-
the king himself in council. 2 But the previous proceedings on the corn--
mission, to inquire whether or no the party be an idiot or a lunatic,
are on the law side of the Court of Chancery, and can only be redressed
(if erroneous) by writ of error in the regular course of law.
3. The king, as parens patriae, has the general superintendence of all
charities, which he exercises by the keeper of his conscience, the Chan-
cellor. ' And therefore whenever it is necessary the Attorney-General, at
the relation of some informant (who is usually called the relator) , files ev
officio an information in the Court of Chancery to have the charity prop-
1. In this country this jurisdiction 2. In the United States this juris-
is usually by statute conferred upon diction is usually exercised by court*
probate courts, or other courts of of prol>atr> or other courts of similar
similar jurisdiction. jurisdiction.
CHAP. XXVIL] PROCEEDINGS IN EQUITY. C17
established. By statute also 43 Eliz. c. 4, authority is given to the
Lord Chancellor or Lord Keeper and to the Chancellor of the Duchy of
Lancaster, respectively, to grant commissions under their several seals
to inquire into any abuses of charitable, donations and rectify the same
by decree, which may be reviewed in the respective courts of the several
chancellors upon exceptions taken thereto. [428]
4. By the several statutes relating to bankrupts a summary jurisdic-
tion is given to the Chancellor in many matters consequential or pre-
vious to the commissions thereby directed to be issued.
Let us next take a brief but comprehensive view of the
general nature of equity as now understood and practised
in our several courts of judicature. [429]
Equity, then, in its true and genuine meaning, is the soul
and spirit of all law; positive law is construed, and rational
law is made by it. In this, equity is synonymous to justice;
in that, to the true sense and sound interpretation of the
rule. But the very terms of a court of equity and a court
of law, as contrasted to each other, are apt to confound and'
mislead us; as if the one judged without equity, and the
other was not bound by any law. Whereas every definition
or illustration to be met with which now draws a line be-
tween the two jurisdictions, by setting law and equity in
opposition to each other, will be found either totally errone-
ous or erroneous to a certain degree. [430]
1. Thus in the first place it is said that it is the business
of a court of equity in England to abate the rigor of the
common law. But no such power is contended for. In all
cases of positive law the courts of equity, as well as the
courts of law, must say with Ulpian, "hoc quidem perquam
'durum est, sed ita lex scripta est." z
2. It is said that a court of equity determines according
to the spirit of the rule, and not according to the strictness
of the letter. But so also does a court of law. Both, for
instance, are equally bound, and equally profess, to in-
terpret statutes according to the true intent of the legisla-
ture. There is not a single rule of interpreting laws,
whether equitably or strictly, that is not equally used by
3. This indeed is very hard, but so
the law is written.
618 PROCEEDINGS IN EQUITY. [BOOK III.
the judges in the courts both of law and equity, the con-
struction must in both be the same; or, if they differ, it is
only as one court of law may also happen to differ from
another. [431] Each endeavors to fix and adopt the true
sense of the law in question; neither can enlarge, diminish,
or alter that sense in a single title.
3. Again, it hath been said that fraud, accident, and trust
are the proper and peculiar objects of a court of equity.
But every kind of fraud is equally cognizable and equally
adverted to in a court of law, and some frauds are cogniz-
able only there: as fraud in obtaining a devise of lands,
which is always sent out of the equity courts, to be there
determined. Many accidents are also supplied in a court
of law, as loss of deeds, mistakes in receipts or accounts,
wrong payments, deaths which make it impossible to per-
form a condition literally, and a multitude of other contin-
gencies; and many cannot be relieved even in a court of
equity, as if by accident a recovery is ill suffered, a devise
ill executed, a contingent remainder destroyed, or a power
of leasing omitted in a family settlement. A technical
trust, indeed, created by the limitation of a second use, was
forced into the courts of equity in the manner formerly
mentioned ; and this species of trust, extended by inference
and construction, has ever since remained as a kind of
peculium in those courts. [432] But there are other trusts,
which are cognizable in a court of law, as deposits and all
manner of bailments, and especially that implied contract,
so highly beneficial and useful, of having undertaken to
account for money received to another's use, which is the
ground of an action on the case almost as universally
remedial as a bill in equity.
4. Once more: it has been said that a court of equity is
not bound by rules or precedents, but acts from the opinion
of the judge, founded on the circumstances of every par-
ticular case; whereas the system of our courts of equity is
a labored, connected system, governed by established rules,
and bound down by precedents from which they do not
depart, although the reason of some of them may perhaps
be liable to objection. Thus the refusing a wife her dower
CHAP. XXVII.] PROCEEDINGS IN EQUITY. 619
in a trust-estate, yet allowing the husband his courtesy;
the holding the penalty of a bond to be merely a security
for the debt and interest, yet considering it sometimes as
the debt itself, so that the interest shall not exceed that
penalty; the distinguishing between a mortgage at five per
cent., with a clause of a reduction to four if the interest be
regularly paid, and the mortgage at four per cent, with a
clause of enlargement to five if the payment of the interest
be deferred, so that the former shall be deemed a consci-
entious, the latter an unrighteous bargain, all these and
other cases that might be instanced, are plainly rules of
positive law, supported only by the reverence that is shown,
and generally very properly shown, to a series of former
determinations, that the rule of property may be uniform
and steady. [433] Nay, sometimes a precedent is so strictly
followed that a particular judgment, founded upon special
circumstances, gives rise to a general rule.
In short, if a court of equity in England did really act as
many ingenious writers have supposed it (from theory) to
do, it would rise above all law, either common or statute,
and be a most arbitrary legislator in every particular case.
The suggestion of every bill, to give jurisdiction to the
courts of equity (copied from those early times), is that
the complainant hath no remedy at the common law. [434]
But he who should from thence conclude that no case is
judged of in equity where there might have been relief at
law, and at the same time casts his eye on the extent and
variety of the cases in our equity reports, must think the
law a dead letter indeed. The rules of property, rules of
evidence, and rules of interpretation in both courts are, or
should be, exactly the same. Formerly some causes, which
now no longer exist, might occasion a different rule to be
followed in one court from what was afterwards adopted
in the other, as founded in the nature and reason of the
thing [e. g., the cases of penal bonds to secure payment of
principal and interest, and mortgages].
Again, neither a court of equity nor of law can vary men's
wills or agreements, or, in other words, make wills or agree-
ments for them. [435] Both are to understand them truly,
620 PROCEEDINGS IN EQUITY. [BOOK ITT.
and therefore both of them uniformly. A court of equity
no more than a court of law can relieve against a penalty in
the nature of stated damages, as a rent of 57. an acre for
ploughing up ancient meadow; nor against a lapse of time,
where the time is material to the contract, as in covenants
for renewal of leases. Both courts will equitably construe,
but neither pretends to control or change, a lawful stipula-
tion or engagement.
The rules of decision are in both courts equally apposite
to the subjects of which they take cognizance. [436] Where
the subject-matter is such as requires to be determined
secundum dequum et bonum* as generally upon actions on
the case, the judgments of the courts of law are guided by
the most liberal equity. In matters of positive right both
courts must submit to and follow those ancient and invariable
maxims " quae reUcta sunt et tradita/' 5 Both follow the
law of nations, and collect it from history and the most
approved authors of all countries where the question is the
object of that law. In mercantile transactions they follow
the marine law, and argue from the usages and authorities
received in all maritime countries. Where they exercise
a concurrent jurisdiction, they both follow the law of the
proper forum; in matters originally of ecclesiastical cog-
nizance, they both equally adopt the canon or imperial law,
according to the nature of the subject; and if a question
came before either which was properly the object of a
foreign municipal 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 reason which
governs both species of courts, wherein does their essential
difference consist? It principally consists in the different
modes of administering justice in each in the mode of
proof, the mode of trial, and the mode of relief. Upon
these, and upon two other accidental grounds of jurisdic-
tion, which were formerly driven into those courts by
narrow decisions of the courts of law, viz., the true con-
struction of securities for money lent, and the form and
4. According to right and justice. 5. Which are left and handed down.
CHAP.. XXVII.] PROCEEDINGS IN EQUITY. 621
effect of a trust or second use, upon these main pillars
hath been gradually erected that structure of jurisprudence
which prevails in our courts of equity. [437]
1. And first, as to the mode of proof. When facts, or
their leading circumstances, rest only in the knowledge of
the party, a court of equity applies itself to his conscience,
and purges him upon oath with regard to the truth of the
transaction; 6 and that being once discovered, the judgment
is the same in equity as it would have been at law. But
for want of this discovery at law the courts of equity have
acquired a concurrent jurisdiction with every other court
in all matters of account. 7 As incident to accounts, they
take a concurrent cognizance of the administration of per-
sonal assets, consequently of debts, legacies, the distribu-
tion of the residue, and the conduct of executors and ad-
ministrators. As incident to accounts, they also take the
concurrent jurisdiction of tithes and all questions relating
thereto, of all dealings in partnership, and many other
mercantile transactions; and so of bailiffs, receivers, factors,
and agents. It would be endless to point out all the several
avenues in human affairs and in this commercial age which
lead to or end in accounts.
From the same fruitful source, the compulsive discovery
upon oath, the courts of equity have acquired a jurisdiction
over almost all matters of fraud, all matters in the private
knowledge of the party,. which, though concealed, are bind-
ing in conscience, and all judgments at law obtained
through such fraud or concealment; and this, not by im-
peaching or reversing the judgment itself, but by prohibit-
ing the plaintiff from taking any advantage of a judgment
obtained by suppressing the truth, and which, had the same
facts appeared on the trial as now are discovered, he would
never have attained at all. [438]
6. In those states in which courts Y. ) 143 (this work is especially
of equity still exist, the complainant adapted to the chancery practice of
may still require an answer under Michigan) ; Puterburgh's Chancery
oath as described in the text, but if Pleading & Practice (4th Ed.), 167.
answer on oath is expressly waived 7. As before stated the common law
the bill and answer are merely plead- action of account is still in use in
ings. 1 Barbour Chancery Prac. (N. Illinois.
622 PROCEEDINGS IN EQUITY. [BooK III.
2. As to the mode of trial. This is by interrogatories ad-
ministered to the witnesses, upon which their depositions
are taken in writing wherever they happen to reside. If,
therefore, the cause arises in a foreign country, and the
witnesses reside upon the spot; if, in causes arising in Eng-
land, the witnesses are abroad, or shortly to leave the king-
dom; or if witnesses residing at home are aged or infirm,
any of these cases lays a ground for a court of equity to
grant a commission to examine them. 8
3. With respect to the mode of relief. The want of a
more specific remedy than can be obtained in the courts of
law gives a concurrent jurisdiction to a court of equity
in a great variety of cases. To instance in executory agree-
ments. A court of equity will compel them to be carried
into strict execution, unless where it is improper or impos-
sible, instead of giving damages for their non-performance.
And hence a fiction is established, that what ought to be
done shall be considered as being actually done, and shall
relate back to the time when it ought to have been done
originally; and this fiction is so closely pursued through
all its consequences that it necessarily branches out into
many rules of jurisprudence, which form a certain regular
system. So of waste and other similar injuries, a court of
equity takes a concurrent cognizance, in order to prevent
them by injunction. Over questions that may be tried at
law in a great multiplicity of actions, a court of equity
assumes a jurisdiction to prevent the expense and vexation
of endless litigations and suits. In various kinds of frauds
it assumes a concurrent jurisdiction, not only for the sake
of a discovery, but of a more extensive and specific relief,
as by setting aside fraudulent deeds, decreeing re-convey-
ances, or directing an absolute conveyance merely to stand
as a security. [439] And thus, lastly, for the sake of a more
beneficial and complete relief by decreeing a sale of lands,
a court of equity holds plea of all debts, incumbrances, arid
charges that may affect it or issue thereout. 9
8. Commissions to take testimony witnesses taken thereunder in courts,
in such cases may now, by statute. of law. Consult the statutes,
be issued and the testimony of the 9. Courts of law, as a rule in ordi-
CHAP. XXVII.] PROCEEDINGS IN EQUITY. 623
4. The true construction of securities for money lent is
another fountain of jurisdiction in courts of equity. When
they held the penalty of a bond to be the form, and that in
substance it was only as a pledge to secure the repayment
of the sum bona fide advanced, with a proper compensation
for the use, they laid the foundation of a regular series of
determinations, which have settled the doctrine of personal
pledges or securities, and are equally applicable to mort-
gages of real property. The mortgagor continues owner
of the land, the mortgagee of the money lent upon it. But
this ownership 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 possession, be barred by
length of time, by analogy to the statute of limitations.
5. The form of a trust, or second use, gives the courts of
equity an exclusive jurisdiction as to the subject-matter of
all settlements and devises in that form, and of all the long
terms create^ in the present complicated mode of convey-
ancing. This is a very ample source of jurisdiction; but
the trust is governed by very nearly the same rules as would
govern the estate in a court of law if no trustee was inter-
posed; and by a regular positive system established in the
courts of equity, the doctrine of trusts is now reduced to as
great a certainty as that of legal estates in the courts of the
common law. [440]
These are the principal (for I omit the minuter) grounds
of the jurisdiction at present exercised in our courts of
equity.
The first commencement of a suit in Chancery is by pre-
ferring a bill to the Lord Chancellor in the style of a peti-
tion, " humbly complaining showeth to your lordship your
orator, A B, that," &c. [442] This is in the nature of a
declaration at common law, or a libel and allegation in the
spiritual courts, setting forth the circumstances of the case
at length, as some fraud, trust, or hardship, " in tender
nary actions, administer relief by the fendant to do what in equity and
award of damages. Courts of equity, good conscience he ought to do; if
on the other hand, in cases in which damages are awarded they are, as a
they have jurisdiction, compel the de- rule, ancillary to other relief.
624 PROCEEDINGS IN EQUITY. [BOOK III.
consideration whereof " (which is the usual language of
the bill), " and for that your orator is wholly without
remedy at the common law," relief is therefore prayed at
the Chancellor's hands, and also process of subpoena against
the defendant, to compel him to answer upon oath to all the
matter charged in the bill. And if it be to quiet the posses-
sion of lands, to stay waste, or to stop proceedings at law,
an injunction is also prayed in the nature of an interdictum
by the civil law, commanding the defendant to cease. 1
This bill must call all necessary parties, however remotely
concerned in interest, before the court, otherwise no decree
can be made to bind them, 2 and must be signed by counsel
as a certificate of its decency and propriety, for it must not
contain matter either scandalous or impertinent; 3 if it does,
the defendant may refuse to answer it till such scandal or
impertinence is expunged, which is done upon an order to
refer it to one of the officers of the court called a Master in
Chancery, 4 of whom there are in number twelve, including
the Master of the Rolls. The master is to examine the
propriety of the bill, and if he reports it scandalous or im-
pertinent, such matter must be struck out, and the defend-
ant shall have his costs, which ought of right to be paid by
the counsel who signed the bill. [443]
When the bill is filed in the office of the six clerks if an
injunction be prayed therein, it may be had at various
stages of the cause, according to the circumstances of the
1. In the federal courts and in the On Nov. 4, 1912, new federal equity
courts of chartcery in those states rules were promulgated by the United
where separate courts of equity exist, States Supreme Court to become effec-
substantially the same forms as those tive Feb. 1, 1913. As to the operation
in the text are still preserved. See, of these rules, see an article by Wal-
generally, Puterburgh's Chancery lace R. Lane in Harvard Law Review.
Plead. & Prac. (4th Ed.); Barbour's republished in Chicago Legal News for
Chancery Practice, vol. 2; Daniel's Sept. 19, 1914, Vol. 47, No. 7, p. 52,
Chancery Pleading & Practice; 54, -55.
Hughe's Federal Procedure, 223, 424. 2. See Hughes, Fed. Proc. 424.
In many of the states the distinc- 3. Hughes, Fed. Prac., 424; 1 Barb,
tion in form between equity and com- Ch. Prac. 43.
mon law has been abolished; but the 4. This office is still preserved in
essential nature of the relief adminis- Illinois, Michigan and other jurisdic-
tored remain and must ever remain tions retaining chancery courts.
t'>" same whether in one or two
fomms.
CHAP. XXVII. ] PKOCEEDINGS ix EQUITY. 625
case. 5 If the bill be to stay execution upon an oppressive
judgment, and the defendant does not put in his answer
within the stated time allowed by the rules of the court,
an injunction will issue of course, and, when the answer
comes in, the injunction can only be continued upon a suffi-
cient ground appearing from the answer itself. But if an
injunction be wanted to stay waste, or other injuries of an
equally urgent nature, then upon the filing of the bill, and
a proper case supported by affidavits, the court will grant
an injunction immediately to continue till the defendant has
put in his answer, and till the court shall make some further
order concerning it; and when the answer comes in, whether
it shall then be dissolved or continued till the hearing of
the cause, is determined by the court upon argument, drawn
from considering the answer and affidavit together.
But, upon common bills, as soon as they are filed, process
of subpoena 6 is taken out, which is a writ commanding the
defendant to appear and answer to the bill, on pain of 100?.
If the defendant, on service of the subpoena, does not ap-
pear within the time limited by the rules of the court, and
plead, demur, or answer to the bill, he is then said to be in
contempt; and the respective processes of contempt are in
successive order awarded against him. [Which are, in
order, an attachment in the nature of a capias, an attach-
ment with proclamations, a commission of rebellion, send-
ing the Serjeant at arms in quest of him, and lastly seques-
tration.] After an order for a sequestration issued, the
plaintiff's bill is to be taken pro confesso, 7 and a decree to
be made accordingly. So that the sequestration does not
5. As to who may authorize the is- In those states practicing under a
suance of an injunction, see local code of procedure, the same method
statutes and works on Practice. prevails both in law and equity cases,
6. Where equity jurisprudence is though differing in different states,
administered in this country in sep- See ante, note, and the local works
arate courts of chancery or on the on Practice.
chancery side of a common law court, 7. As confessed. Unless discovery
as in Michigan, Illinois, New Jersey under oath is required, on default of
and Tennessee, the United States answer within the time prescribed, the
courts and perhaps others, a subpoena bill will be taken pro confesso with-
er chancery summons following the out further process,
filing of a bill is the regular process.
40
626 PEOCEEDINGS IN EQUITY. [BOOK III.
seem to be in the nature of process to bring in the defendant,
but only intended to enforce the performance of the decree.
Thus much if the defendant absconds.
If the defendant is taken upon any of this process, he is
to be committed to the Fleet or other prison, till he puts in
his appearance or answer, or performs whatever else this
process is issued to enforce, and also clears his contempts
by paying the costs which the plaintiff has incurred thereby.
[445] For the same kind of process is issued out in all
sorts of contempts during the progress of the cause, if tho
parties in any point refuse or neglect to obey the order of
the court.
The process against a body corporate is by distringas,
to distrain them by their goods and chattels, rents and
profits, till they shall obey the summons or directions of the
court.
The ordinary process before mentioned cannot be sued
out till after the service of the subpoena, for then the con-
tempt begins, otherwise he is not presumed to have notico
of the bill; and therefore by absconding to avoid the sul>-
poena a defendant might have eluded justice, till the statute
5 Geo. II. c. 25, which enacts that, where the defendant
cannot be found to be served with process of subpoena, and
absconds (as is believed) to avoid being served therewith,
a day shall be appointed him to appear to the bill of the
plaintiff, which is to be inserted in the London Gazette, read
in the parish church where the defendant last lived, and
fixed up at the Royal Exchange, and, if the defendant doth
not appear upon that day, the bill shall be taken pro
confcsso. 8
But if the defendant appears regularly and takes a copy
of the bill, he is next to demur, plead, or answer.
A demurrer in equity is nearly of the same nature as a
demurrer in law, being an appeal to the judgment of the
court whether the defendant shall be bound to answer the
plaintiff's bill, as, for want of sufficient matter of equity
8. In all the states substituted ser-
vice by publication, etc., will be found
to have been established by statute.
CHAP. XXVII.] PROCEEDINGS IN EQUITY. 627
therein contained, or where the plaintiff, upon his own
showing, appears to have no right, or where the bill seeks
a discovery of a thing which may cause a forfeiture of any
kind, or may convict a man of any criminal misbehavior.
[446] For any of these causes a defendant may demur to
the bill. And if, on demurrer, the defendant prevails, the
plaintiff's bill shall be dismissed; if the demurrer be over-
ruled, the defendant is ordered to answer. 9
A plea may be either to the jurisdiction, showing that the
court has no cognizance of the cause, or to the person, show-
ing some disability in the plaintiff, as by outlawry, excom-
munication, and the like; or it is in bar, showing some
matter wherefore the plaintiff can demand no relief, as an
act of parliament, a fine, a release, or a former decree. And
the truth of this plea the defendant is bound to prove if put
upon it by the plaintiff. 1 But as bills are often of a com-
plicated nature and contain various matter, a man may
plead as to part, demur as to part, and answer to the residue.
But no exceptions to formal minutiae in the pleadings will
be here allowed, for the parties are at liberty, on the dis-
covery of any errors in form, to amend them. 2
An answer is the most usual defence that is made to a
plaintiff's bill. It is given in upon oath, 3 or the honor of a
peer or peeress; but where there are amicable defendants,
their answer is usually taken without oath by consent of
the plaintiff. Yet if in the bill any question be put that
tends to the discovery of any crime, the defendant may
thereupon demur, as was before observed, and may refuse
to answer. [447]
An answer must be [sworn to, unless an answer on oath
is waived, and must be] signed by counsel, and must either
deny or confess all the material parts of the bill; or it may
9. See, as to demurrer, 1 Barbour's 2. This is the regular way of get-
Chanc. Prac. 105. In some jurisdic- ting new facts in the bill, as in chan-
tions a motion to dismiss the bill for eery there are no special replications
want of equity takes the place of a setting up new matter,
demurrer. 3. When answer under oath is not
1. See 1 Barbour's Chanc. Prac. waived, aa is usually the case.
114.
C28 PROCEEDINGS IN EQUITY. [BOOK III.
confess and avoid, that is, justify or palliate the facts. 4
[448] If one of these is not done, the answer may be ex-
cepted to for insufficiency, and the defendant be compelled
to put in a more sufficient answer. A defendant cannot
pray anything in this his answer but to be dismissed the
court; if he has any relief to pray against the plaintiff, he
must do it by an original bill of his own, which is called
a cross-bill. 5
After answer put in, the plaintiff upon payment of costs
may amend his bill, either by adding new parties or new
matter, or both, upon the new lights given him by the de-
fendant; and the defendant is obliged to answer afresh to
such amended bill. 6 But this must be before the plaintiff
has replied to the defendant's answer, whereby the cause
is at issue; for afterwards, if new matter arises which did
not exist before he must set it forth by a supplemental-bill. 7
There may be also a bill of revivor 8 when the suit is abated
by the death of any of the parties, in order to set the pro-
ceedings again in motion, without which they remain at a
stand. And there is likewise a bill of interpleader, 9 where
a person who owes a debt or rent to one of the parties in
suit, but, till the determination of it, he knows not to which,
desires that they may interplead, that he may be safe in
the payment. In this last case it is usual to order the
money to be paid into court for the benefit of such of the
parties to whom upon hearing the court shall decree it to bo
due. But this depends upon circumstances, and the plain-
tiff must also annex an affidavit to his bill, swearing that he
does not collude with either of the parties.
If the plaintiff finds sufficient matter confessed in the
defendant's answer to ground a decree upon, he may pro-
4. See, generally, as to defence by Chanc. Prac. cli. 9; Puterburgh's Ch.
answer, 1 Barb. Ch. Pr. 130; Puter- PI. & Pr. (4th Ed.), ch. 24.
burgh's Chan. PI. & Pr. (4th Ed.) 6. See 1 Barb. Chanc. Pr. 113, 119,
158. 172, 210, 219; Puterburgh's Ch. PI. &
5. The cross-bill- is, however, filed Pr. (4th Ed.), ch. 9.
in the same court and cause. See, 7. See 1 Barb. Ch. Pr. 362.
generally, as to the nature, purposes 8. See Puterburgh'sj Ch. PI. & Pr.
of and proceedings upon, 2 Barbour's (4th Ed.), ch. 17.
9. See Id., ch. 22.
CHAP. XXVII. ] PROCEEDINGS ix EQUITY. 629
<?eed to the hearing of the cause upon bill and answer only.
But in that case he must take the defendant's answer to
be true in every point. 1 Otherwise the course is for the
plaintiff to reply generally to the answer, averring his bill
to be true, certain, and sufficient, and the defendant's
answer to be directly the reverse, which he is ready to prove
as the court shall award, 2 upon which the defendant rejoins,
averring the like on his side, which is joining issue upon
the facts in dispute. 3 [449] To prove which facts is the
next concern.
This is done by examination of witnesses and taking their
depositions in writing, according to the manner of the civil
law. 4 And for that purpose interrogatories are framed, or
questions in writing, which, and which only, are to be pro-
posed to and asked of the witnesses in the cause. These
interrogatories must be short and pertinent, not leading
ones: as, " Did not you see this?" or " Did not you hear
that?" for if they be such, the depositions taken thereon
will be suppressed and not suffered to be read. For the
purpose of examining witnesses in or near London there
is an examiner's office appointed; but for such as live in the
country a commission to examine witnessess is usually
granted to four commissioners, two named of each side, or
any three or two of them, to take the depositions there v
And if the witnesses reside beyond sea, a commission may
be had to examine them there upon their own oaths, and (if
foreigners) upon the oaths of skilful interpreters. And it
hath been established that the deposition of an heathen who
1. 1 Barb. Ch. Pr. 318. officer, upon a viva vocc examination
2. Id., ch. 9. and cross-examination by counsel. If
3. We do not understand that a the witnesses cannot be produced be-
rejoinder is either necessary or usual fore the master, the statutes author-
in the United States. The cause is ize the taking of their depositions by
at view as soon as the replication is dedimus potestatem, or commission,
filed. Puterburgh's Ch. PI. & Pr. (4th to take testimony upon interrogato-
Ed.), 210; Barb. Ch. Pr. 249; 2 Dan- ries and cross-interrogatories or viva
iel's Ch. PI. & Pr. (3d Am. Ed.), 828, race, as counsel may elect. This is
note; Story's Eq. PI.. 879, note. the general method. For details, con-
4. In the United States testimony suit the local statutes and books on
in chancery cases is usually taken by Practice. See Puterburgh's Ch. PI.
deposition before a master, or other & Pr. (4th Ed.), 221-225.
630 PROCEEDINGS IN EQUITY. [BooK III.
believes in the Supreme Being, taken by commission in the
most solemn manner according to the custom of his own
country, may be read in evidence. 5
The commissioners are sworn to take the examinations
truly and without partiality, and not to divulge them till
published in the Court of Chancery, and .their clerks are
also sworn to secrecy. The witnesses are compellable by
process of subpoena, as in the courts of common law, to
appear and submit to examination. And when their depo-
sitions are taken they are transmitted to the court with
the same care that the answer of a defendant is sent.
If witnesses to a disputable fact are old and infirm, it is
very usual to file a bill to perpetuate the testimony of those
witnesses although no suit is depending, for, it may be, a
man's antagonist only waits for the death of some of them
to begin his suit. 6 [450]
When all the witnesses are examined, then, and not be-
fore, the depositions may be published, by a rule to pass
publication, after which they are open for the inspection of
all the parties, and copies may be taken of them. The cause
is then ripe to be set down for hearing, 7 which may be done
at the procurement of the plaintiff or defendant before
either the Lord Chancellor or the Master of the Rolls, ac-
cording to the discretion of the clerk in court, regulated by
the nature and importance of the suit and the arrear of
causes depending before each of them respectively. Con-
cerning 1 the authority of the Master of the Rolls to hear and
determine causes, and his general power in the Court of
Chancery, it was declared by statute 3 Geo. II. c. 30, that-
all orders and decrees by him made, except such as by the
course of the court were appropriated to the Great Seal
alone, should be deemed to be valid; subject, nevertheless,
to be discharged or altered by the Lord Chancellor, and so
as they shall not be enrolled till the same are signed by liis
5. Omichund v. Barker, Willes, 538 ; 7. An order closing the taking of
1 Smith's Lead. Cas. *535. testimony is entered here before the
6. See Puterburgh's Ch. PI. & Pr. cause is set down for hearing.
(4th Ed.), ch. 23.
CHAP. XXVII. ] PROCEEDINGS IN EQUITY. 631
lordship. 8 Either party may be subpoenaed to hear judg-
ment 9 on the day so fixed for the hearing, and then, if the
plaintiff does not attend, his bill is dismissed with costs, or,
if the defendant makes default, a decree .will be made
against him which will be final, unless he pays the plain-
tiff's cost of attendance and shows good cause to the con-
trary on a day appointed by the court. [451] A plaintiff's
bill may also at any time be dismissed for want of prosecu-
tion, -which is in the nature of a nonsuit at law, if he suffers
three terms to elapse without moving forward in the cause.
When there are cross causes on a cross-bill filed by the
defendant against the plaintiff in the original cause, they
are generally contrived to be brought on together, that the
same hearing and the same decree may serve for both of
them. 1 The method of hearing causes in court is usually
this. The parties on both sides appearing by their counsel,
the plaintiff's bill is first opened or briefly abridged, and
the defendant's answer also, by the junior counsel on each
side; after which the plaintiff's leading counsel states the
case and the matters in issue, and the points of equity aris-
ing therefrom; and then such depositions as are called for
by the plaintiff are read by. one of the six clerks, 2 and the
plaintiff may also read such part of the defendant's
answer as he thinks material or convenient; and after this
the rest of the counsel for the plaintiff make their observa-
tions and arguments. Then the defendant's counsel go
through the same process for him, except that they may
not read any part of his answer [quaere,, when answer on
oath is not waived and the answer is responsive to the bill] ;
and the counsel for the plaintiff are heard in reply. When
all are heard, the court 3 pronounces the decree, adjusting
every point in debate according to equity and good con-
science, which decree being usually very long, the minutes
8. See the Supreme Court of Judi- 1 This is still the practice,
cature Act for changes in English 2. By counsel here.
system. 3. Usually the court will take the
9. Not the practice in this country. cause under advisement and pronounce
The manner of bringing a cause to *the decree later.
hearing varies in the different states.
See local works on Practice.
632 PROCEEDINGS IN EQUITY. [BooKllI.
of it are taken down and read openly in court by the regis-
trar. The matter of costs 4 to be given to either party is
not here held to be a point of right, but merely discretion-
ary (by the statute 17 Ric. II. c. 6), according to the circum-
stances of the case as they appear more or less favorable
to the party vanquished. And yet the statute 15 Hen. VI.
c. 4, seems expressly to direct that as well damages as costs
shall be given to the defendant, if wrongfully vexed in this
court. [452]
The Chancellor's decree is either interlocutory or final.
It very seldom happens that the first decree can be final,
or conclude the cause; for if any matter of fact is strongly
controverted, this court is so sensible of the deficiency of
trial by written depositions that it will not bind the parties
thereby, but usually directs the matter to be tried by jury; 5
especially such important facts as the validity of a will, or
whether A is the heir-at-law to B, or the existence of a
modus decimandi* or real and immemorial composition for
tithes. But as no jury can be summoned to attend this
court, the fact is usually directed to be tried at the bar of
the Court of King's Bench or at the assises upon a feigned
issue. For (in order to bring it there, and have the point
in dispute, and that only, put in issue), an action is brought
wherein the plaintiff by a fiction 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 so, and therefore demands the
5L The defendant admits the feigned wager, but avers that
A is not the heir to B; and thereupon that issue is joined,
which is directed out of Chancery to be tried, and thus the
verdict of the jurors at law determines the fact in the court
of equity. 7
4. Consult local statutes and books 6. Method of tithing.
on practice. 7. The manner of framing the issue
5. The court may, in this country, depends upon the statutes. Regularly
direct an issue to be tried by a jury; a verdict on a feigned issue is merely
but it is not a very common practice. advisory and to inform the chaneel-
In some states, however, the statutes lor's conscience. By statute in some
authorize the trial of certain cases cas:s its effect may be binding. Con-
in chancery before a jury, especially suit the local statutes.
will cases.
CHAP. XXVII.] PROCEEDINGS IN EQUITY. 633
So likewise, if a question of mere law arises in the course
of a cause, as whether by the words of a will an estate for
life or in tail is created, or whether a future interest devised
by a testator shall operate as a remainder or an executory
devise, it is the practice of this court to refer it to the
opinion of the judges of the Court of King's Bench or Com-
mon Pleas upon a case stated for that purpose, wherein all
the material facts are admitted and the point of law is sub-
mitted to their decision, who thereupon hear it solemnly
argued by counsel on both sides and certify ,their opinion
to the Chancellor. [453] And upon such certificate the
decree is usually founded. 8
Another thing also retards the completion of decrees.
Frequently long accounts are to be settled, incumbrances
and debts to be inquired into, and a hundred little facts to
be cleared up, before a decree can do full and sufficient
justice. These matters are always by the decree on the first
hearing referred to a master in Chancery to examine, which
examinations frequently last for years; and then he is to
report the fact, as it appears to him, to the court. This
report may be excepted to, disproved, and overruled, or
otherwise is confirmed and made absolute by order of the
court. 9
When all issues are tried and settled, and all references
to the master ended, the cause is again brought to hearing
upon the matters of equity reserved, and a final decree is
made, the performance of which is enforced (if necessary)
by commitment of the person or sequestration of the party's
estate. And if by this decree either party thinks himself
aggrieved he may petition the Chancellor for a rehearing,
w r hether it was heard before his lordship or any of the
judges sitting for him, or before the Master of the Rolls.
For whoever may have heard the cause, it is the Chancel-
lor's decree, and must be signed by him before it is enrolled r
which is done of course unless a rehearing be desired.
Every petition' for a rehearing must be signed by two
counsel of character, usually such as have been concerned
8. With us the trial court decides 9. The same practice prevails here,
all questions of law.
634 PEOCEEDINQS IN EQUITY. [BOOK IIL
in the cause, certifying that they apprehend the cause is
proper to be reheard. And upon the rehearing all the evi-
dence taken in the cause, whether read before or not, is now
admitted to be read, because it is the decree of the Chancel-
lor himself, who only now sits to hear reasons why it should
not be enrolled and perfected, at which time all omissions
of either evidence or argument may be supplied. [454] But
after the decree is once signed and enrolled it cannot be re-
heard or rectified but by bill of review or by appeal to the
House of Lords.
A bill of review may be had upon apparent error in judg-
ment appearing on the face of the decree, or by special leave
of the court, upon oath made of the discovery of new matter
or evidence which could not possibly be had or used at the
time when the decree passed. But no new evidence or
matter than in the knowledge of the parties, and which
might have been used before, shall be a sufficient ground
for a bill of review. 1
An appeal to parliament, that is, to the House of Lords,
is the dernier resort of the subject who thinks himself ag-
grieved by an interlocutory order or final determination in
this court ; and it is effected by petition to the House of Peers,
and not by writ of error, as upon judgments at common law.
No new evidence is admitted in the House of Lords upon any
account, this being a distinct jurisdiction. 2
1. Still the practice. See 2 Barb. As to equity jurisprudence, see,
Ch. Pr., ch. 8; Puterburgh's Ch. PI. generally, Eaton on Equity (1901);
& Pr. (4th Ed.), ch. 20. Story's Equity Jurisprudence, 2 vols.;
2. An appeal and not a writ of er- Adams' Equity, and vol. 2 of this
ror is the regular method of review series.
in an appellate court; and the hear- The following note from the 1838
ing is upon the whole case on the evi- edition of Chitty's Blackstone con-
dence already taken. tains so good a summary of the juris-
Upon the subject of chancery plead- dictions of courts of equity that it is
ing and practice, see, generally, Dan- in great part here reproduced : " The
iel's Chan. Plead. & Prac., 3 vols.; matters over which the court of chan-
Barbour's Chan. Plead. & Prac. (an eery maintains an equitable jurisdic-
ex'cellent work) ; Puterburgh's Chan, tjon have been arranged in the follow-
Plead. & Prac.; Story's Equity Plead- ing alphabetical order; and as this
ing; Shipman's Equity Pleading. See, analysis has the recommendation of
also, vol. 2 of this series. practical utility, we shall proceed to
CHAP. XXVII.] PKOCEEDINGS IN EQUITY.
635
embody the principal rules and deci-
sions under each head respectively.
1st. ACCIDENT AND MISTAKE.
2d. ACCOUNT.
3d. FRAUD.
4th. INFANTS.
5th. SPECIFIC PERFORMANCE OF
AGREEMENTS.
6th. TRUSTS.
1st. ACCIDENT AND MISTAKE. By
accident is meant, where a case is dis-
tinguished from others of the like
nature by unusual circumstances, for
the court of chancery cannot control
the maxims of the common law, be-
cause of general inconvenience; but
only where the observation of a rule
is attended with some unusual and
particular inconvenience. 10 Mod. 1.
1. Bonds, &c. Equity will relieve
against the loss of deeds (3 V. & B.
54), or bonds (5 Ves. 235; 6 Ves.
812) ; but not if the bond be volun-
tary. 1 Ch. Ca. 77. It will also set
up a bond so lost or destroyed, against
sureties, though the principal be out
of the jurisdiction. 3 Atk. 93; 1 Ch.
Ca. 77 ; 9 Ves. 464. Bonds made joint,
instead of several, may be modified
according to intent in some cases. 2
Atk. 33; 9 Ves. 118; "l7 Ves. 514; 1
Meriv. 564.
Boundaries, &c. Equity will as-
certain the boundaries, or fix the
value, where lands have been inter-
mixed by unity of possession. 2
Meriv. 507; 1 Swanst. 9. So to dis-
tinguish copyhold from freehold lands
within the manor. 4 Ves. 180 ; Nels.
14.
Penalties, Forfeitures, &c., incurred
by accident, are relieved against (2
Vern. 594; 1 S*-a. 453; 1 Bro. C. C.
418; 2 Sch. & Lef. 685), where the
thing may be done afterwards, or a
compensation made for it. 1 Ch. Ca.
24; 2 Ventr. 352; 9 Mod. 22; 18 Ves.
63. But no relief is given in the case
of a voluntary composition, payable
at a fixed period. Amb. 332; see 1
Vern. 210; 2 Atk. 527; 3 Atk. 585;
16 Ves. 372. Equity will not relieve
against the payment of stipulated, or
as they are sometimes called, liqui-
dated damages (2 Atk. 194; Finch,
117; 2 Cha. Ca. 198; 6 Bro. P. C.
470; 1 ox, 27; 2 Bos. & P. 346; 3
Atk. 395 ) ; and forfeitures under acts
of parliament, or conditions in law,
which do not admit of compensation,
or a forfeiture which may be consid-
ered as a limitation of an estate,
which determines it when it happens,
cannot be relieved against. 1 Ball &
Bat. 373, 478; 1 Stra. 447, 452; Free.
Ch. 574.
Mistake. A defective conveyance
to charitable uses is always aided (1
Eden. 14; 2 Vern. 755; Prec. Ch. 16;
2 Vern. 453; Hob. 136); but neither
a mistake in a fine (if after death of
conusor), or in the names in a re-
covery are supplied, especially against
a purchaser. 2 Vern. 3 Ambl. 102.
Nor an erroneous recovery in the
manorial court. 1 Vern. 367. Mis-
takes in a deed or contract, founded
on good consideration, may be recti-
fied. 1 Ves. 317; 2 Atk. 203. And
if a bargain and sale be made and
not enrolled within six months, equity
will compel the vendor to make a
good title, by executing another bar-
gain and sale which may be enrolled.
6 Ves. 745. A conveyance defective
in form may be rectified (1 Eq. Ab.
320; 1 P. W. 279), even against as-
signees (2 Vern. 564; 1 Atk. 162; 4
Bro. C. C. 472), or against represen-
tatives. 1 Anst. 14. So defects in
surrenders of copyhold. 2 Vern. 564:
Salk. 449; 2 Vern. 151. But not the
omission of formalities required by
act of parliament in conveyances. 5
C36
PROCEEDINGS IN EQUITY.
[BooK IIT.
Yes. 240; 3 Bro. C. C. 571; 13 Yes.
588; 15 Yes. 60; 6 Yes. 745; 11 Yes.
(26. Defects in the mode of convey-
ance may be remedied. 4 Bro. C. C.
382. So the execution of powers. 2
T. W. 623.
2d. ACCOUNT. Mutual dealings and
demands between parties, which are
too complex to be accurately taken
by trial at law, may be adjusted in
equity [1 Soh. & Lefroy, 309; 13 Yes.
278, 9; 1 Mad. Ch. 86 and note (i)];
but if the subject be matter of set-off
at law, and capable of proof, a bill
will not lie (6 Yes. 136); and the
difficulty in adjusting the account con-
stitutes no legal objection to an ac-
tion. 5 Taunt. 481; 1 Marsh, 115;
2 Camp. 238.
3d. FRAUD. Equity has so great
an abhorrence of fraud, that it will
set aside its own decrees if founded
thereupon; and a bill lies to vacate
letters patent obtained by fraud. 13
Yin. Ab. 543, pi. 9; 1 Vern. 277. All
deceitful practices and artful devices,
contrary to the plain rules of common
honesty, are frauds at common law,
and punishable there; but for some
frauds or deceits there is no remedy
at law, in which cases they are cog-
nizable in equity, as one of the chief
branches of its original jurisdiction.
2 Ch. Ca. 193; Finch, 161; 2 P. W.
270; 2 Vern. 189; 2 Atk. 324; 3 P.
W. 130; Brig. Ind. tit. Fraud, pi. 1.
Where a person is prevented by fraud
from executing a deed, equity will,
regard it as already done. 1 Jac. &
W. 99.
1. Trustees are in no case permit-
ted to purchase from themselves the
trust estate (1 Vern. 465), nor their
solicitor. 3 Mer. 200. Nor in bank-
ruptcy are the commissioners (6 Ves.
617) or assignees (6 Ves. 627), nor
their solicitors. 10 Ves. 381. Nor
committee or keeper of a lunatic (13
Ves. 156), nor an executor (1 Ves. &
B. 170; 1 Cox, 134), nor governors
of charities. 17 Ves. 500.
2dly. Attorney and Client. Fraud
in transactions between attorneys and
client is guarded against most watch-
fully. 2 Yes, J. 201; 1 Mad. Ch. 114,
5, H6.
3dly. Heirs, Sailors, &c. Equity
will protect improvident heirs against
agreements binding on their future
expectancies, negotiated during some
temporary embarrassment, provided
such agreement manifest great inade-
quacy of consideration. 1 Vern. 169;
2 Vern. 27; IP. W. 310; 1 Bro. C. ('.
1 ; 2 Ves. 157. It will also set aside
unequal contracts obtained from sail-
ors respecting their prize-money
(Newl. Cent. 443; 1 Wils. 229; 2 Ves.
281, 516), and the fourth section
of 20 G. III. c. 24), declares all bar
gains, etc., concerning any share of
a prize taken from any of his ma-
jesty's enemies, etc., void. Vid. Newl.
Cont. 444.
4thly. Guardian. Fraud between
guardian and ward is also the subject
of strict cognizance in the court of
chancery. For" the details under this
head, see 1 book, ch. XVII, and notes.
Sthly. Injunctions. In a modern
work the subject of injunctions is con-
sidered under the head of Fraud (see
1 Mad. Ch. 125), but it seems to de-
serve a distinct consideration. An
injunction is a method by which the
court of chancery interferes to pre-
vent the commission of fraud and mis-
chief. The exercise of this authority
may be obtained: 1st. To stay pro-
ceedings in other courts. 2d. To re-
strain infringements of patent. 3d.
To stay waste. 4th. To preserve copy-
right. 5th. To restrain negotiation of
bills, etc., or the transfer of stock. 6th.
CHAP. XXVII.] PROCEEDINGS IN EQUITY.
637
To prevent nuisances, and in most
cases where the rights of others are
invaded, and the remedy by action at
law is too remote to prevent increas-
ing damage. See 1 Mad. Ch. 157 to
165. An injunction to stay proceed-
ings at law does not extend to a dis-
tress for rent. 1 Jac. & W. 392. Nor
lias equity any jurisdiction to stop
goods in transitu in any case, nor will
the court restrain the sailing of a ves-
sel for such purpose by injunction.
2 Jac. & W. 349.
6thly. Bills of Peace, which form an
essential check in litigation. 1 Bro.
P. C. 266; 2 Bro. P. C. 217; Bunb.
158; 1 P. W. 671; Free. Ch. 262; 1
Stra. 404. For this purpose a per-
petual injunction will be granted. See
10 Mod. 1; LBro. P. C. 268. This
bill cannot hold in disputes between
two persons only. 2 Atk. 483, 391;
4 Bro. C. C. 157; Vin. tit. Ch. 425,
pi. 35; 3 P. W. 156.
7thly. Bill of Interpleader will lie to
prevent fraud or injustice, where two
or more parties claim adversely to
each other, from him in possession
(otherwise it will not lie, 1 M?r.
405) ; for in such case^it is necessary
the two claimants should settle their
rights before the person holding pos-
session be required to give up to
either. 2 Ves. J. 310; Mitf. PI. 39;
1 Mad. Ch. 173. And on the same
principle.
Sthly. Bills or Writs of Certiorari,
to remove a cause from an inferior,
or incompetent jurisdiction.
9thly. Bills to perpetuate testimony
in danger of being lost before the
right can be ascertained.
lOthly. Bills to discover evidence in
possession of defendant, whereof
plaintiff would be otherwise wholly
deprived, or of deeds, etc., in defend-
ant's custody.
llthly. Bills of Quia Timet for the
purpose of preventing a possible fu-
ture injury, and thereby quieting
men's minds and estates, etc. 1 Mad.
Ch. 224; Newl. on Contr., 93, 493.
12thly. Bills for the delivering up
of Deeds. As where an instrument is
void at common law, as being against
the policy of the law, it belongs to
the jurisdiction of equity to order it
to be delivered up. 11 Ves. 535. In
Mayor, etc., of Colchester v. Lowton,
Lord Eldon says, " My opinion has
always been (differing from others)
that a court of equity has jurisdiction
and duty to order a void deed to be
delivered up, and placed with those
whose property may be affected by it,
if it remains in othfr hands." 1 Ves.
& B. 244.
13th. Bills for apportionment or
contribution between persons standing
in particular relations one to another.
5 Ves. 792; 2 Freem. 97.
14th. For dower and partition,
15th. To establish moduses.
16th. Bills to marshal securities.
17th. Bills to secure property in
litigation in other courts. And
18th and lastly. Bills to compel
lords of manors to hold courts, or to
admit copyholders and bills to reverse
erroneous judgments in copyhold
courts. Vide 1 Mad. Ch. 242 to 253.
4th. INFANTS. The protection and
care which the court of chancery ex-
ercises over infants have already been
incidentally noticed. Vide 1 book,
chs. XVI, XVII, and notes.
Wards of Court. To make a child
a ward of court, it is sufficient to file
a bill; and it is a contempt to marry
a ward of court, though the infant's
father be living. Ambl. 301. The
court of chancery, representing the
king as parens patriae, has jurisdic-
tion to control the right of the
638
PROCEEDINGS IN EQUITY.
[BOOK III.
father to the possession of his in-
fant; but the court of K. B. has not
any portion of that delegated author-
ity. The court of chancery will re-
strain the father from removing his
child, or doing any act towards re-
moving it out of the jurisdiction. So
will the court refuse the possession
of the child to its mother, if she has
withdrawn herself from her husband.
10 Ves. 52; Co. Lit. 89 (a), n. 70;
2 Fonb. Tr. Eq. 224, n. (a); 2 Bro.
C. C. 499; 1 P. W. 705; 4 Bro. C. C.
101; 2 P. W. 102. The court retains
its jurisdiction over the property of
a ward of court after 21, if it re-
mains in court; and if the ward mar-
ries, will order a proper settlement
to be made, or reform an improper
one, unless the ward consents to the
settlement either in court or under
a commission. 2 Sim. & Stu. 123, n.
( a) . In case the husband assign the
property of the wife, who is a ward of
court, it shall not prevail, but the
court will direct even the whole of
the property in question to be settled
on the wife and her children, and the
assignee will not be entitled even to
the arrear of interest accrued since
the marriage. 3 Ves. 506.
5th. SPECIFIC PERFORMANCE OF
AGREEMENTS. The jurisdiction of the
courts of equity, in matters of this
kind, though certainly as ancient as
the reign of Edward IV., did not ob-
tain an unresisting and uniform ac-
quiescence on the part of the public
till many years afterwards. See 1
Roll. Rep. 354; 2 ib. 443; Latch. 172.
Realty. Thus equity enforces
agreements for the purchase of lands,
or things which relate to realties, but
not (generally) those which relate to
personal chattels, as the sale of stock,
corn, hops, etc., in such cases the rem-
edy is at law. 3 Atk. 383; Newl.
Cont. 87.
That which is agreed to bo done if
in equity considered as already done
(2 P. W. 222); and therefore when
a husband covenants on his marriage
to make a settlement charged upon
his lands, which he is afterwards pre-
vented from completing by sudden
d^ath, the heir shall make satisfaction
of the settlement out of the estate.
Ib., 233.
Personalty. In agreements, with
penalties for the breach of them, it
is necessary to distinguish the case*
of a penalty intended as a security,
for a collateral object, from those
where the contract itself has assessed
the damages which the party is to
pay, upon his doing or omitting to
do the particular act. In these latter
cases, equity will not interfere either
to prevent or to enforce the act in
question, or to restrain the recovery
of damages after they have become
due. But in the former, where it
plainly appears that the specific per-
formance of that act was the primary
object of the agreement, and the pen-
alty intended merely to operate as a
collateral security for its being done,
though at law the party might make
his election, either to do the partic-
ular act or to pay the penalty, a.
court of equity will not permit him
to exercise such right, but will com-
pel him to perform the object of the
agreement. Newl. Cont. cap. 17.
Thus, as the principle whereon a spe-
cific performance of agreement relat-
ing to personals is refused, is. that
there is as complete a remedy to IK>
obtained at law, therefore, where a
party sues merely on a memorandum,
of agreement (a mere memorandum
not being regarded as valid at lawt.
a court of equity will give relief for
equity suffers not a right to bo with-
out a remedy. 3 Atk. 382. 38f>. .Hut
it is only where the legal remedy is-
CHAP. XXVII.] PROCEEDINGS nsr EQUITY.
639
inadequate or defective, that courts
of equity interfere. 8 Ves. 163.
Equity will not enforce an agreement
for the transfer of stock ( 10 Ves.
161) ; but it has been held that a bill
will lie for performance of agreement
for purchase of government stock,
where it prays for the delivery of the
certificates which give the legal title
to stock. 1 Sim. & Stu. 590. And
it seems the court will entertain a
suit for the specific performance of
a contract for the purchase of a debt.
5 Price 3 325. So to sell the goodwill
of a trade, and the exculsive use of a
secret in dyeing (1 Sim. & Stu. 74) ;
but not without great caution. See
1 P. Wms. 181.
6th. TBUSTS. Trusts may be cre-
ated of real or personal estate, and
are either, 1st, Express; or, 2d, 1m-
piled. Under the head of implied
trusts may be included all resulting
trusts, and all such trusts as are not
express. Express trusts are created
by deed or will. Implied trusts arise,
in general, by construction of law,
upon the acts or situation of parties.
1 Mad. Cha. 446.
Lunatics. The custody of the per-
sons and estates of lunatics was a
power not originally in the crown,
but was given to it by statute, for
the benefit of the subject. 1 Ridgw.
P. C. 224, et vid. 2 Inst. 14. And
now, by the statute de prerogativa
regis (17 Edw. II., c. 9 & 10), the
king shall have the real estates of
idiots to his own use, and he shall
provide for the safe keeping of the
real estates of lunatics, so that they
shall have a competent maintenance,
and the residue is to be kept for their
use. 1 Ridg. P. C. 519, 535. A lib-
eral application of the property of a
lunatic is made to secure every com-
fort his situation will admit (6 Ves.
8). without regard to expectants on
estate. 1 Ves. J. 297. The power of
the chancellor extends to making
grants from time to time of the Jiuna-
tic's estate, and as this power is de-
rived under the sign manual, in virtue
of the prerogative of the crown, the
chancellor, who is usually invested
with it, is responsible to the crown
alone for the right exercise of it, per
Ld. Hardw. 3 Atk. 635. It is said,
that since the revolution the king has
always granted the surplus profits. of
the estate of an idiot to some of his
family. Ridgw. P. C. 519, App. note
(1).
Charities. The general controlling
power of the court over charities, does
not extend to a charity regulated by
governors under a charter, unless they
have also the management of the rev-
enues, and abuse their trust; which
will not be presumed, but must be ap-
parent, and mads out by evidence. 2
Ves. J. 42. The internal management
of a charity is the exclusive subject
of visitorial jurisdiction; but under
a trust as to the revenue, abuse by
misapplication is controlled in chan-
cery. 2 Ves. & B. 134.
Executors. Where an executor has
an express legacy, the court of chan-
cery looks upon him as a trustee with
regard to the surplus, and will make
him account, though the spiritual
court has no such power. 1 P. W. 7.
And where an executor, who was di-
rected to lay out the testator's per-
sonalty in the funds, unnecessarily
sold out stock, kept large balances in
his hand, and resisted payment of
debts by false pretences of outstand-
ing demands, he was charged with five
per cent, interest and costs, but the
court refused to make rests in the
account. 1 Jac. & W. 586. And s^e
on this subject, ante, 2 book. ch. 32.
640
PROCEEDINGS IN EQUITY.
[BOOK III.
Marshalling Assets. The testator's
whole personal property, whether de-
vised or not, is assets both in law
and equity, to which creditors by sim-
ple contract, or of any higher order,
may have recourse for the satisfac-
tion of their demands. But the tes-
tator may, by clear and explicit
words, exempt his personalty from
payment of debts as against the de-
visee of his realty, though not as
against creditors. The rule in equity
is, that in case even of a specialty
debt, the personal assets shall be first
applied, and if deficient, and there be
no devise for payment of debts, the
heir shall then be charged for assets
descended. 2 Atk. 426, 434. For
lands are in equity a favoured fund,
insomuch that the heir at law, or
devisee 'of a mortgagor, may demand
to have the estate mortgaged by such
devisor himself, cleared out of the per-
sonalty. Vin. Ab. tit. Heir, U. pi.
35; 1 Atk. 487. And a specific dev-
isee of a mortgaged estate is entitled
to have it exonerated out of real as-
sets descended. 3 Atk. 430, 439. But
at law there is no such distinction
of favour shewn to lands; a bond
creditor may, if he please, proceed
immediately against the heir, without
suing the personal representative of
his deceased debtor. As to the order
in which real assets shall be applied
in equity for payment of debts (after
exhausting the personal effects, sup-
posing them not exempted), the gen-
eral rule is, first, to take lands de-
vised simply for that purpose, then
lands descended, and lastly estates
specifically devised, even though they
are generally charged with the pay-
ment of debts. 2 Bro. 263.
Equitable assets are such as at law
cannot be reached by a creditor, as
a devise in trust to pay debts, of an
equity of redemption subject to a
mortgage in fee, or where the descent
is broke by a devise to sell for the
payment of debts. 1 Vern. 411; 1 Ch.
Ca, 128 n.; 2 Atk. 290. But lands
so devised, subject to a mortgage for
years, are legal assets.
Bankruptcy. See the consolidation
act, 6 Geo. IV., c. 16, commencing its
operation with the present year, and
the decisions applicable to its several
enactments, ante, 2 book, ch. 31, in
notes.
BOOK THE FOURTH.
OF PUBLIC WRONGS.
CHAPTER 1.
OF THE NATURE OF CRIMES AND THEIR PUNISHMENT.
I. A crime or misdemeanor is an act committed or omitted
in violation of a public law either forbidding or command-
ing it. [5]
The distinction of public wrongs from private, of crimes
and misdemeanors from civil injuries, seems principally to
consist in this: that private wrongs or civil injuries are an
infringement or privation of the civil rights which belong
to individuals considered merely as individuals; public
wrongs or crimes and misdemeanors are a breach and vio-
lation of the public rights and duties due to the whole
community considered as a community in its social aggre-
gate capacity. In all cases the crime includes an injury
[tort]. Every public offence is also a private wrong and
somewhat more; it affects the individual, and it likewise
affects the community. In these gross and atrocious in-
juries [treason, murder, robbery] the private wrong is
swallowed up in the public. Indeed, as the public crime
is not otherwise avenged than by forfeiture of life and
property, 1 it is impossible afterwards to make any repara-
tion for the private wrong, which can only be had from the
body or goods of the aggressor. [6] But there are crimes
of an inferior nature, in which the public punishment is not
so severe; but it affords room for a private compensation
also, and herein the distinction of crimes from civil injuries
is very apparent. For instance, in the case of battery, or
1. See later on as to forfeiture.
41 [641]
642 NATURE OF CBIMES. [Boos IV.
beating another, the aggressor may be indicted for this at
the suit of the king for disturbing the public peace, and
be punished criminally by fine and imprisonment; and the
party beaten may also have his private remedy by action
of trespass for the injury which he in particular sustains,
and recover a civil satisfaction in damages. So, also, in
case of a public nuisance, as digging a ditch across a high :
way, this is punishable by indictment as a common offence
to the whole kingdom and all his majesty's subjects; but if
any individual sustains any special damage thereby, as
laming his horse, breaking his carriage, or the like, the
offender may be compelled to make ample satisfaction, as
well for the private injury as for the public wrong. 2 [7]
II. [As to the power, the end, and the measure of human punishment,
the student is referred to the text, p. 1 et seg.'] 3
2. See Clark's Grim. Law (2d Ed.), modern times it has been greatly
1-7. ameliorated both in England and the
3. The English law in the time of United States. Consult the local
our author was very sanguinary. In statutes.
CHAP. II.] PERSONS CAPABLE OF COMMITTING CRIMES. 643
CHAPTER II.
OF THE PERSONS CAPABLE OF COMMITTING CRIMES.
The general rule is that no person shall be excused from
punishment for disobedience to the laws of his country,
excepting such as are expressly defined and exempted by
the laws themselves. [20]
All the several pleas and excuses which protect the com-
mitter of a forbidden act from the punishment which is
otherwise annexed thereto may be reduced to this single
consideration, the want or defect of will. To make a com-
plete crime cognizable by human laws, there must be both
a will and an act. [21] In all temporal jurisdictions an
overt act, or some open evidence of an intended crime, is
necessary in order to demonstrate the depravity of the will
before the man is liable to punishment. And as a vicious
will without a vicious act is no civil crime, so, on the other
hand, an unwarrantable act without a vicious will is no
crime at all. So that to constitute a crime against human
laws there must be first, a vicious will, and secondly, an
unlawful act consequent upon such vicious will. 1
Now there are three cases in which the will does not join
with the act: 1. Where there is a defect of understanding.
2. Where there is understanding and will sufficient residing
in the party, but not called forth and exerted at the time
of the action done, which is the case of all offences commit-
ted by chance or ignorance. Here the will sits neuter, and
neither concurs with the act nor disagrees to it. 3. Where
the action is constrained by some outward force and vio-
lence. Here the will counteracts the deed, and is far from
concurring with, that it loathes and disagrees to what the
man is obliged to perform.
I. First, infancy or nonage, which is a defect of the un-
derstanding. [22] Infants under the age of discretion
ought not to be punished by any criminal prosecution what-
ever. The law of England does in some cases privilege an
It Clark's Crim. Law (2d Ed.), 14.
644- PERSONS CAPABLE OF COMMITTING CHIMES. [BOOK IV.
infant under the age of twenty-one as to common misde-
meanors, so as to escape fine, imprisonment, and the like,
and particularly in cases of omission, as not repairing a
bridge or highway, and other similar offences; for, not hav-
ing the command of his fortune till twenty-one, he wants
the capacity to do those things which the law requires.
But where there is any notorious breach of the peace, a
riot, battery, or the like (which infants when full grown are
at least as liable as others to commit), for these an infant
above the age of fourteen is equally liable to suffer as a per-
son of the full age of twenty-one. 2 [23]
With regard to capital crimes, the law is still more minute
and circumspect. By the law as it now stands and has
stood at least ever since the time of Edward III. the capa-
city of doing ill or contracting guilt is not so much measured
by years and days as by the strength of the delinquent's
understanding and judgment; for one lad of eleven years
old may have as much cunning as another of fourteen; and
in these cases our maxim is that " malitia supplet aetatem"
Under seven years of age, indeed, an infant cannot be guilty
of felony, for then a felonious discretion is almost an im-
possibility in nature; but at eight years old he may be guilty
of felony. 3 Also under fourteen, though an infant shall be
pnnia facie adjudged to be doll incapaxj'yet if it appear to
the court and jury that he was doll capax, and could discern
between good and evil, he may be convicted and suffer
death. But in all such cases the evidence of that malice
which is to supply age ought to be strong and clear beyond
all doubt and contradiction. 4
II. The second case of a deficiency in will which excuses
from the guilt of crimes arises also from a defective or
vitiated understanding, viz., in an idiot or a lunatic. 3 In
2. Wash. Cr. L. (3d Ed.) 19. Law, 59, and the local statutes. If
3. The ages of criminal capacity are the rule has not been changed by
variously fixed by statute in the statute, the common law prevails.
United States. In Illinois an infant 4. See preceding note.
under ten years of age cannot be 5. The general rule in England and
found guilty of any crime. Rev. Stat. this country is that if a person is
111. 1374, 394, 233; see Clark's Crim. incapable by reason of idiocy or lun-
CHAP. II.] PEKSONS CAPABLE OF COMMITTING CRIMES. 645
criminal cases idiots and lunatics are not chargeable for
their own acts if committed when under these incapacities;
no, not even for treason itself. Also, if a man in his sound
memory commits a capital offence, and before arraignment
for it he becomes mad, he ought not to be arraigned for it,
because he is not able to plead to it with that advice and
caution that he ought. And if after he has pleaded the
prisoner becomes mad, he shall not be tried; for how can he
make his defence ? If after he be tried and found guilty he
loses his senses before judgment, judgment shall not be
pronounced, and if after judgment he becomes of nonsane
memory, execution shall be stayed. But if there be any
doubt whether the party be compos or not, this shall be
tried by a jury. [25] And if he be so found, a total idiocy
or absolute insanity excuses from the guilt, and of course
from the punishment of any criminal action committed un-
der such deprivation of the senses; but if a lunatic hath
lucid intervals of understanding, he shall answer for what
he does in those intervals as if he had no deficiency.
III. Thirdly, as to artificial, voluntarily contracted mad-
ness, by drunkenness or intoxication, which, depriving men
of their reason, puts them in a temporary frenzy, our law
looks upon this as an aggravation of the offence rather than
as an excuse for any criminal misbehavior. 6 [26]
IV. A fourth deficiency of will is where a man commits
acy of distinguishing between right settled insanity or delirium tremens
and wrong as to the particular act, resulting from intoxication. Clark's
he lacks criminal capacity. Clark's Crim. Law (2d Ed.), 70. (2) Where
Crim. Law (2d Ed.), 61 and cases a specific intent constitutes an essen-
cited. McNaghten's Case, 10 Clark tial element of the crime, intoxica-
& Fin. 200, established this rule, tion may negative such intent. Id.,
This rule has not always been ap- 70; Boberts v. The People, 19 Mich,
proved. See Clark's Crim. Law, 65 401; Schwabacher v. People, 165 111.
and note (irresistable impulse); 618. (3) In murder intoxication may
Scott v. Com., 4 Met. (Ky.) 227 (mo- (if proved) be material as to the
ral insanity). See, also, Parsons v. question of provocation and thus re-
State, 81 Ala. 577. duce the crime to manslaughter.
6. Clark's Crim. Law (2d Ed.), 70. Clark's Crim. Law, 70. Intoxication
There are three exceptions to this dees not, however, aggravate the of-
rule: (1) Where the act is com- fence. Id.
mitted while accused labors under i
64<8 PERSONS CAPABLE OF COMMITTING CRIMES. [BOOK TV.
an unlawful act by misfortune or chance, and not by design.
Here the will observes a total neutrality, and does not co-
operate with the deed, which therefore wants one main
ingredient of a crime. If any accidental mischief happens
to follow from the performance of a lawful act [in a lawful
manner], the party stands excused from all guilt; 7 but if a
man be doing anythin unlawful [and morally wrong, not
merely malum prohibitum], and a consequence ensues which
he did not foresee or intend, as the death of a man or the
like, his want of foresight shall be no excuse, for, being
guilty of one offence in doing antecedently what is in itself
unlawful, he is criminally guilty of whatever consequence
may follow the first misbehavior. 8 [27]
V. Fifthly, ignorance or mistake is another defect of will,
when a man intending to do a lawful act does that which is
unlawful. For here, the deed and the will acting sepa-
rately, there is not that conjunction between them which is
necessary to form a criminal act. 9 But this must be an
ignorance or mistake of fact and not an error in point of
law. As if a man, intending to kill a thief or housebreaker
in his own house, by mistake kills one of his own family,
this is no criminal action; 1 but if a man thinks he has a
right to kill a person excommunicated or outlawed wherever
he meets him, and does so, this is wilful murder. For a mis-
take in point of law which every person of discretion not
only may but is bound and presumed to know, is in criminal
cases no sort of defence. Ignorantia juris, quod quisque
tenetur scire, neminem excusat, 2 is as well the maxim of our
own law as it was of the Roman.
VI. A sixth species of defect of will is that arising from
compulsion and inevitable necessity. These are a con-
straint upon the will, whereby a man is urged to do that
7. Clark's Crim. Law, 176. application to crime. Milton v. State,
8. Negligence may be criminal. 24 So. Rep. (Fla.) 60.
Clark's Crira. Law, 55. This question 1. Clark's Crim. Law, 82, 83.
most commonly arises in prosecutions 2. Ignorance of the law which every
for manslaughter. Id. one is bound to know, excuses no one.
9. Clark's Crim. Law, 56. The rule Broom's Leg. Max., *231.
of the Six Carpenters' Case has no
CHAP. II.] PERSONS CAPABLE OF COMMITTING CRIMES. 647
which his judgment disapproves, and which, it is to be pre-
sumed, his will (if left to itself) would reject.
1. Of this nature, in the first place, is the obligation of
civil subjection, whereby, the inferior is constrained by the
superior to act contrary to what his own reason and inclina-
tion would suggest: as when a legislator establishes in-
iquity by a law, and commands the subject to do an act
contrary to religion or sound morality. [28]
As to persons in private relations, the principal case
where constraint of a superior is allowed as an excuse for
criminal misconduct is with regard to the matrimonal sub-
jection of the wife to her husband; for neither a son nor a
servant is excused for the commission of any crime, whether
capital or otherwise, by the command or coercion of the
parent or master. But if a woman commit theft, burglary,
or other civil offences against the laws of society by the
coercion of her husband or even in his company, which the
law construes a coercion, she is [prima facie] not guilty of
any crime, being considered as acting by compulsion and
not of her own will. 3 [29] In inferior misdemeanors also
we may remark another exception, that a wife may be in-
dicted and set in the pillory with her husband for keeping a
brothel. And in all cases where the wife offends alone,
without the company or coercion of her husband, she is
responsible for her offence as much as any feme-sole.
2. Another species of compulsion or necessity is what our
law calls duress per minas, or threats and menaces, which
induce a fear of death or other bodily harm, and which take
away for that reason the guilt of many crimes and misde-
3. This presumption may of course rule has been changed by statute,
be rebutted by evidence. Murder and It is subject to exceptions in those
treason are usually stated to be ex- crimes which are from their nature
-ceptions to this rule, and some add generally committed by women such
robbery also. Clark's Crim. Law, 93 as keeping a brothel or other disor-
.and cases cited in notes. derly house and also for altering
Mr. Bishop does not except murder counterfeit coins. 1 Bish. Crim. Law
and treason. 1 Bish. Crim. Law (7th (7th Ed.), 351; Clark's Crim. Law
Ed.), 357 et seq. So in 1 Whart. (2d Ed.), 93; Com. v. Murphy, 2
. L., 71 et seq., the author takes Gray, 510; Penal Code Minn., 22;
the same view. In some states the Id., N. Y 24.
.648 PERSONS CAPABLE OF COMMITTING CRIMES. [BOOK IV.
meanors. 4 [30] But then that fear which compels a man -
to do an unwarrantable action ought to be just and well-
grounded; such " qui cadcre possit in virum constantem, non
timidum et meticulosum," 5 as Bracton expresses it. There-
fore, in time of war or rebellion, a man may be justified in
doing many treasonable acts by compulsion of the enemy
or rebels, which would admit of no excuse in the time of
peace. This, however, seems only, or at least principally,
to hold as to positive crimes so created by the laws of
society, and which therefore society may excuse; but not
as to natural offences so declared by the law of God, wherein
human magistrates are only the executioners of divine pun-
ishment. And therefore, though a man be violently as-
saulted, and hath no other possible means of escaping death
but by killing an innocent person, this fear and force shall
not acquit him of murder, for he ought rather to die himself
than escape by the murder of an innocent. But in such a
case he is permitted to kill the assailant, for there the law
of nature and self-defence, its primary canon, have made
him his own protector.
3. There is a third species of necessity which may be dis-
tinguished from the actual compulsion of external force or
fear, being the result of reason and reflection, which act
upon and constrain a man's will and oblige him to do an
action which without such obligation would be criminal,
and that is when a man has his choice of two evils set before
him, and, being under a necessity of choosing one, he
chooses the least pernicious of the two. [31] Here the will
cannot be said freely to exert itself, being rather passive
than active, or if active, it is rather in rejecting the greater
evil than in choosing the less. Of this sort is that necessity
where a man by the commandment of the law is bound to
arrest another for any capital offence or to disperse a riot,
and resistance is made to his authority: it is here justifiable
and even necessary to beat, to wound, or perhaps to kill the
offenders rather than permit the murderer to escape or the
4. Duress, however, is no excuse for 5. Such as might happen to a brave
murder. Clark's Crim. Law (3d Ed.), man not timid and fearful.
91.
CHAP. II.] PERSONS CAPABLE OF COMMITTIXG CRIMES.
riot to continue. For the preservation of the peace of the
kingdom and the apprehending of notorious malefactors are
of the utmost consequence to the public, and therefore
excuse the felony which the killing would otherwise amount
to.
4. There is yet another case of necessity which has oc-
casioned great speculation among the writers upon general
law, viz., whether a man in extreme want of food or clothing
may justify stealing either to relieve his present necessities?
And this both Grotius and Puffendorf, together with many
other of the foreign jurists, hold in the affirmative. But
the law of England admits no such excuse at present. 6
VII. Seventh, where the law supposes an incapacity of
doing wrong, from the excellence and perfection of the
person, which extend as well to the will as to the other
qualities of his mind [33] : I mean the case of the king, who,
by virtue of his royal prerogative, is not under the coercive
power of the law, which will not suppose him capable of
committing a folly, much less a crime.
6. Clark's Crim. Law (2d Ed.), 95-
97 and cases cited.
C50 PRINCIPALS AND ACCESSORIES. [BOOK IV.
CHAPTEE III.
OF PRINCIPALS AND ACCESSARIES.
I. A man may be principal in an offence in two degrees,
[34] A principal in the first degree is he that is the actor
or absolute perpetrator of the crime, and in the second de-
gree, is he who is present, aiding and abetting the fact to
be done. 1 Which presence need not always be an actual
immediate standing by, within sight or hearing of the fact,
but there may be also a constructive presence, as when one
commits a robbery or murder, and another keeps watch or
guard at some convenient distance. And this rule hath
also other exceptions; for in case of murder by poisoning, a
man may be a principal felon by preparing and laying the
poison, or persuading another to drink it who is ignorant
of its poisonous quality, or giving it to him for that purpose,
and yet not administer it himself nor be present when the
very deed of poisoning is committed. And the same reason-
ing will hold with regard to other murders committed in
the absence of the murderer, by means which he had pre-
pared beforehand, and which probably could not fail of
their mischevious effect. .[35] As by laying a trap or pit-
fall for another, whereby he is killed; letting out a wild
beast with an intent to do mischief; or inciting a madman
to commit murder, so that death thereupon ensues, in
every of these cases the party offending is guilty of murder
as a principal in the first degree.
II. An accessary is he who is not the chief actor in the
offence, nor present at its performance, but is some way
concerned therein, either before or after the fact committed.
1. As to what offences admit of accessaries, and what not.
In high treason there are no accessaries, but all are prin-
cipals; the same acts that make a man accessary in felony
making him a principal in high treason, upon account of
the heinousness of the crime. Besides, it is to be considered
1. Clark's Crim. Law (2d Ed.),
101, 102.
CHAP. III.] PRINCIPALS AND ACCESSARIES. 651
that the bare intent to commit treason is many times actual
treason, as imagining the death of the king or conspiring
to take away his crown. And as no one can advise and
abet such a crime without an intention to have it done, there
can be no accessaries before the fact, since the very advice
and abetment amount to principal treason. [36] But this
will not hold in the inferior species of high treason, which
do not amount to the legal idea of compassing the death of
the king, queen, or prince. For in those no advice to
commit them, unless the thing be actually performed, will
make a man a principal traitor. In petit treason, murder,
and felonies 2 with or without benefit of clergy, there may
be accessaries, except only in those offenses which by judg-
ment of law are sudden and unpremeditated, as manslaugh-
ter and the like, which therefore cannot have any acces-
saries before the fact. So too in petit larceny and in all
crimes under the degree of felony there are no accessaries
either before or after the fact, but all persons concerned
therein, if guilty at all, are principals. 3
2. As to who may be an accessary before the fact, Sir
Matthew Hale defines him to be one who, being absent at
the time of the crime committed, doth yet procure, counsel,
or command another to commit a crime. Herein absence
is necessary to make him an accessary; for if such a pro-
curer or the like be present, he is guilty of the crime as
principal. 4 If A then advise B to kill another, and B does
it in the absence of A, now B is principal, and A is accessary
in the murder. [37] And this holds even though the party
killed be not in rerum natura at the time of the advice given.
As if A, the reputed father, advises B, the mother of a
2. The distinction between princi- if one incites an insane person or an
pals and accessories is recognized in idiot or an infant of tender years
felony only. Clark's Grim. Law (2d who, not knowing it is wrong, ia
Ed. ), 100. Petit treason does not ex- thereby induced to commit an act
1st in the United States. otherwise a crime, the person so pro-
3. Clark's Grim. Law (3d Ed.), curing the act to be done is a princi-
100. pal. Com. v. Hill, 11 Mass. 136;
4. Id., 109. If one sets a dog upon People v. McMurray, 4 Parker's Cr.
another whom he bites, he is the prin- Rep. 234.
cipal in an assault and battery; so,
C52 PRINCIPALS AND ACCESSORIES. [BooK IV.
bastard child, unborn, to strangle it when born, and she
does so, A is accessary to this murder. And it is also
settled that whoever procureth a felony to be committed,
though it be by the intervention of a third person, is an
accessary before the fact. It is likewise a rule that he who
in any wise commands or counsels another to commit an
unlawful act is accessary to all that ensues upon that un-
lawful act, but is not accessary to any act distinct from the
other. And if A commands B to beat C, and B beats him
so that he dies, B is guilty of murder as principal, and A
as accessary. But if A commands B to burn C 's house, and
he in so doing commits a robbery, now A, though accessary
to the burning, is not accessary to the robbery, for that is
a thing of a distinct and unconsequential nature. But if
the felony committed be the same in substance with that
which is commanded, and only varying in some circum-
stantial matters, as if, upon a command to poison Titius, he
is stabbed or shot, and dies, the commander is still accessary
to the murder, for the substance of the thing commanded
was the death of Titus, and the manner of its execution is
a mere collateral circumstance.
3. An accessary after the fact may be where a person,
knowing a felony to have been committed, receives, relieves,
comforts, or assists the felon. Therefore, to make an acces-
sary ex post facto it is in the first place requisite that he
knows of the felony committed. In the next place he must
receive, relieve, comfort, or assist him. And generally any
assistance whatever given to a felon, to hinder his being
apprehended, tried, or suffering punishment, makes the as-
sister an accessary. As furnishing him with a horse to
escape his pursuers, money or victuals to support him, a
house or other shelter to conceal him, or open force and
violence to rescue or protect him. [38] So likewise to
convey instruments to a felon to enable him to break gaol,
or to bribe the gaoler to let him escape, makes a man an
accessary to the felony. 5 But to relieve a felon in gaol with
clothes or other necessaries is no offence, for the crime im-
5. Clark's Crim. Law (2d Ed.),
113.
CHAP. III.] PRINCIPALS AND ACCESSARIES. 653
putable to this species of accessary is the hinderance of
public justice, by assisting the felon to escape the vengeance
of the law. To buy or receive stolen goods, knowing them
to be stolen, 6 falls under none of these descriptions: it was
therefore at common law a mere misdemeanor, and made
not the receiver accessary to the theft, because he received
the goods only, and not the felon; but now, by the statutes
5 Anne, c. 31, and 4 Geo. I. c. 11, all such receivers are made
accessaries.
The felony must be complete at the time of the assistance
given, else it makes not the assistant an accessary. As if
one wounds another mortally, and after the wound given,
but before death ensues, a person assists or receives the
delinquent, this does not make him accessary to the homi-
cide, for till death ensues there is no felony committed.
But so strict is the law w r here a felony is actually complete,
in order to do effectual justice, that the nearest relations
are not suffered to aid or receive one another. If the parent
assists his child, or the child the parent, if the brother re-
ceives the brother, the master his servant, or the servant
his master, or even if the husband relieves his wife, who
have any of them committed a felony, the receivers become
accessaries ex post facto. [39] But a feme-covert cannot
become an accessary by the receipt and concealment of her
husband; for she is presumed to act under his coercion, and
therefore she is not bound, neither ought she, to discover
her lord.
4. How are accessaries to be treated considered distinct
from principals.
And the general rule of the ancient law is this, that accessaries shall
suffer the same punishment as their principals.
[The reasons for the elaborate distinctions between ac-
cessaries and principals are] (1) to distinguish the nature
and denomination of crimes, that the accused may know
6. It is now by statute made a sub- See, generally, on the subject of
stantive crime in itself. McClain's Principal and Accessory, the case of
Orim. Law, 713; Clark's Crim. Law, Spies v. The People, 122 111. 1 (the
327. so-called anarchist case).
654 PRINCIPALS AND ACCESSORIES. [BOOK IV.
how to defend himself when indicted; the commission of
an actual robbery being quite a different accusation from
that of harboring the robber.
(2) Because now by the statutes relating to the benefit of clergy, dis-
tinction is made between them; accessaries after the fact being still
allowed the benefit of clergy in all cases, except horse-stealing and steal-
ing of linen from bleaching-grounds.
(3) Because formerly no man could be tried as accessary
till after the principal was convicted, or at least he must
have been tried at the same time with him; 7 though that
law is now much altered, as will be shown more fully in its
proper place. [40] (4) Because, though a man be indicted
as accessary and acquitted, he may afterwards be indicted
as principal, for an acquittal of receiving or counselling a
felon is no acquittal of the felony itself; but it is matter of
some doubt whether, if a man be acquitted as principal, he
can be afterwards indicted as accessary before the fact,
since those offences are frequently very nearly allied, and
therefore an acquittal of the guilt of one may be an acquittal
of the other also. But it is clearly held that one acquitted
as principal may be indicted as an accessary after the fact,
since that is always an offence of a different species of guilt,
principally tending to evade the public justice, and is sub-
sequent in its commencement to the other.
7. Clark's Crim. Law (3d Ed.), 115. Wash. Crim. Law (3d Ed.), 162 and
But this rule has been changed by cases cited,
statute in most of the states. Id.;
CHAP. IV.] OFFENCES AGAINST GOD AND RELIGION. 655
CHAPTER IV.
OF OFFENCES AGAINST GOD AND RELIGION.
[Apostasy, hersy, and offences affecting an established church are
offences happily unknown to the American law, and hence are omitted.)
IV. The fourth species of offences more immediately
against God and religion is that of blasphemy against the
Almighty by denying his being or providence, or by con-
tumelious reproaches of our Saviour Christ. [59] Whither
also may be referred all profane scoffing at the holy scrip-
ture, or exposing it to contempt and ridicule. These are
offences punishable at common law by fine and imprison-
ment, or other infamous corporal punishment; for Chris-
tianity is part of the laws of England. 1
V. Somewhat allied to this, though in an inferior degree,
is the offence of profane and common swearing and curs-
ing. 2 [60] By the last statute against which, 19 Geo. II. c.
21, which repeals all former ones, every laborer, sailor, or
soldier profanely cursing or swearing shall forfeit Is., every
other person under the degree of a gentleman 2s v and every
gentleman or person of superior rank 5s. to the poor of the
parish, and on the second conviction double, and for every
subsequent offence treble the sum first forfeited, with all
charges of conviction, and in default of payment shall be
sent to the house of correction for ten days.
VI. A sixth species of offence against God and religion, of which our
ancient books are full, is the offence of witchcraft, conjuration, enchant-
nient, or sorcery. [Obsolete.]
VII. A seventh species of offenders in this class are all
religious impostors, such as falsely pretend an extraordi-
nary commission from heaven, or terrify and abuse the
people with false denunciations of judgments. [62] 'These,
as tending to subvert all religion by bringing it into ridicule
1. This IB true only in a limited 2. Made misdemeanors by statute
sense. See discussion in Cooley's in some states.
Const. Lim. (7th Ed.), 670 et seq.
656 OFFENCES AGAINST GOD AND RELIGION. [BOOK IV.
and contempt, are punishable by the temporal courts with
fine, imprisonment, and infamous corporal punishment.
VIII. Simony, or the corrupt presentation of any one to an ecclesias-
tical benefice for gift or reward, is also to be considered as an offence
against religion.
IX. Profanation of the Lord's Day, vulgarly (but im-
properly) called Sabbath-breaking, is a ninth offence against
God and religion punished by the municipal law of Eng-
land. 3
X. Drunkenness is also punished by statute 4 Jac. I. c.
5, with the forfeiture of 5s v or the sitting six hours in the
stocks, by which time the statute presumes the offender will
have regained his senses, and not be liable to do mischief
to his neighbors. 4 [64]
XL The last offence, more immediately against religion
and morality, and cognizable by the temporal courts, is
that of open and notorious lewdness, either by frequenting
houses of ill-fame, which is an indictable offence, or by some
grossly scandalous and public indecency, for which the pun-
ishment is by fine and imprisonment. The temporal courts
take no cognizance of the crime of adultery otherwise than
as a private injury. 5
3. This subject has been variously 5. Made criminal by statute io
legislated upon in this country. some of the states.
4. Also punished by statute in somfi
of the states.
Tf gJJOI'
CHAP. V.] OFFENCES AGAINST LAW OF NATIONS. C57
CHAPTER V.
OF OFFENCES AGAINST THE T.AW OF NATIONS. 1
The law of nations is a system of rules deducible by
natural reason and established by universal consent among
the civilized inhabitants of the world, in order to decide all
disputes, to regulate all ceremonies and civilities, and to
insure the observance of justice and good faith in that inter-
course which must frequently occur between two Or more
independent states and the individuals belonging to each.
[66] This general law is founded upon this principle, that
different nations ought in time of peace to do one another
all the good they can, and in time of war as little harm as
possible, without prejudice to their own real interests. And
as none of these states will allow a superiority in the other,
therefore neither can dictate or prescribe the rules of this
law to the rest, but such rules must necessarily result from
those principles of natural justice in which all the learned
of every nation agree, or they depend upon mutual compacts
or treaties between the respective communities, in the con-
struction of which there is also no judge to resort to but
the law of nature and reason, being the only one in which
all the contracting parties are equally conversant, and to
which they are equally subject. [67]
The principal offences against the law of nations, ani-
madverted on as such by the municipal laws of England, are
of three kinds: 1, Violation of safe-conducts; 2. Infringe-
ment of the rights of ambassadors; and 3, Piracy. [68]
1. As to the first, violation of safe-conducts or passports, 2
expressly granted by the king or his ambassadors to the
subjects of a foreign power in time of mutual war, or com-
mitting acts of hostilities against such as are in amity,
1. These offences are all cognizable such by the statutes. The student
only in the United States courts. should, therefore, in every instance,
2. As the United States as a na- consult the Revised Statutes of the
tion has no common law all these United States. See Clark's Crim.
crimes where they exist are made Law (2d Ed.), 412.
42
658 OFFENCES AGAINST LAW OF NATIONS. [BOOK IV.
league, or truce with us, who are here under a general im-
plied safe-conduct, these are breaches of the public faith,
without the preservation of which there can be no inter-
course or commerce between one nation and another; and
such offences may, according to the writers upon the law
of nations, be a just ground of a national war, since it is
not in the power of the foreign prince to cause justice to be
done to his subjects by the very individual delinquent, but
he must require it of the whole community. [69] And as
during the continuance of any safe-conduct, either express
or implied, the foreigner is under the protection of the king
and the law; and, more especially, as it is one of the articles
of Magna Carta that foreign merchants should be entitled
to safe-conduct and security throughout the kingdom,
there is no question but that any violation of either the per-
son or property of such foreigner may be punished by in-
dictment in the name of the king, whose honor is more par-
ticularly engaged in supporting his own safe-conduct.
2. As to the rights of ambassadors, which are also estab-
lished by the law of nations, they have formerly been
treated of at large. 3 [70] It may here be sufficient to re-
mark that the common law of England recognises them in
their full extent by immediately stopping all legal process
sued out through the ignorance or rashness of individuals
which may intrench upon the immunities of a foreign min-
ister or any of his train. And the more effectually to en-
force the law of nations in this respect, when violated
through wantonness or insolence, it is declared by the stat-
ute '7 Anne, c. 12, that all process whereby the person of
any ambassadors, or of his domestic or domestic servant,
may be arrested, or his goods distrained or seized, shall be
utterly null and void, and that all persons prosecuting,
soliciting, or executing such process, being convicted by
confession or the oath of one witness before the Lord Chan-
cellor and the chief justices, or any two of them, shall be
deemed violators of the law of nations and disturbers of the
public repose, and shall suffer such penalties and corporal
3. Book 1, p. 253.
CHAP. V.] OFFENCES AGAINST LAW OF NATIONS.
659
punishment as the said judges, or any two of them, shall
think fit. 3 [71]
3. Lastly, the crime of piracy, or robbery and depreda-
tion upon the high seas, is an offence against the universal
law of society, a pirate being, according to Sir Edward
Coke, hostis humani generis. 4 By the ancient common law
piracy, if committed by a subject, was held to be a species
of high treason, being contrary to his natural allegiance,
and by an alien to be felony only; but now, since the statute
3. In the year 1654, during the pro-
tectorate of Cromwell, Don Pataleon
Sa, the brother of the Portuguese am-
bassador, who had been joined with
him in the same commission, was
tried, convicted and executed, for an
atrocious murder. Lord Hale, 1 P.
C. 99, approves of the proceeding; and
Mr. J. Foster, p. 188, though a mod-
ern writer of law, lays it down, that
" for murder and other offences of
great enormity, which are against the
light of nature and the fundamental
laws of all society, ambassadors are
certainly liable to answer in the or-
dinary course of justice, as other per-
sons offending in the like manner
are; " but Mr. Hume observes upon
this case, that " the laws of nations
were here plainly violated." 7 vol.
237. And Vattel, with irresistible
ability, contends that the universal
inviolability of an ambassador is an
object of much greater importance to
the world than their punishment for
crimes, however contrary to natural
justice. "A minister," says that pro-
found writer, " is often charged with
a commission disagreeable to the
prince to whom he is sent. If this
prince has any power over him, and
esj>ecially if his authority be sover-
eign, how is it to be expected that the
minister can execute his master's or-
ders with a proper freedom of mind,
fidelity and firmness? It is necessary
he should have no snares to fear, that
he cannot be diverted from his func-
tions by any chicanery. He must
have nothing to hope, and nothing to
fear, from the sovereign to whom he
is sent. Therefore, in order to the
success of his ministry, he must be
independent of the sovereign's author-
ity, and of the jurisdiction of the
country both civil and criminal," (B.
4, c. 7, 92), where this subject is
discussed in a most luminous manner.
The Romans, in the infancy of their
state, acknowledged the expediency of
the independence of ambassadors; for
when they had received ambassadors
from the Tarquin princes, whom they
had dethroned, and had afterwards
detected those ambassadors in secretly
committing acts which might have
been considered as treason against
their state, they sent thm back un-
punished; upon which Livy observes,
et quanquam visi sunt commississe,
ut hostium loco essent, jus tamen
gentium valuit. Lib. 2, c. 4. When
Bomilcar, qui Roman fide public*
venerat, was prosecuted as an accom-
plice in the assassination of Massiva,
Sallust declares, fit reus magis ea
aequo bonoque quwn ex jure gentium.
Bell. Jug., c. 35.
4. An enemy of the human race.
G60 OFFENCES AGAINST LAW OF NATIONS. [Booic IV
of treason (25 Edw. III. c. 2), it is held to be only felony in
a subject. The offence of piracy by common law consists in
committing those acts of robbery and depredation upon the
high seas which, if committed upon land, would have
amounted to felony there. [72] But by statute some other
offences are made piracy also. 5
5. See the United States statutes;
Clark's Crim. Law (2d Ed.), 411.
CHAP. VI.] OF HIGH TREASON. 661
CHAPTER VI.
OF HIGH TREASON".
[By Art. 3, 3, Const. U. S., treason against the United
States can consist " only in levying war against them, or
in adhering to their enemies, giving them aid and com-
fort ; ' ' and ' ' no person shall be convicted of treason unless
on the testimony of two witnesses to the same overt act, or
on confession in open court."]
Every offence more immediately affecting the royal per-
son, his crown or dignity, is in some degree a breach of the
duty of allegiance, whether natural or innate, or local and
acquired by residence; and these may be distinguished into
four kinds: 1. Treason. [74] 2. Felonies injurious to the
king's prerogative. 3. Praemunire. 4. Other misprisions
and contempts. Of which crimes the first and principal is
that of treason.
Treason (proditio) in its very name imports a betraying,
treachery, or breach of faith. [75] It therefore happens
only between allies, saith the Mirror, for treason is indeed a
general appellation, made use of by the law to denote not
only offences against the king and government, but also
that accumulation of guilt which arises whenever a superior
reposes a confidence in a subject or inferior, between whom
and himself there subsists a natural, a civil, or even a
spiritual relation, and the inferior -so abuses that confidence,
so forgets the obligations of duty, subjection, and allegi-
ance, as to destroy the life of any such superior or lord.
\nd therefore for a wife to kill her lord or husband, a servant his lord
or master, and an ecclesiastic his lord or ordinary, these, being breaches
of the lower allegiance, of private and domestic faith, are denominated
petit treasons. [Not law in the United States.]
But when disloyalty so rears its crest as to attack even
majesty itself, it is called by way of eminent distinction
high treason (aha proditio).
By the ancient common law there was a great latitude
6 62 OF HIGH TREASON. [Boox IV.
left in the breasts of the judges to determine what was
treason or not so, whereby the creatures of tyrannical
princes had opportunity to create abundance of construc-
tive treasons. But to prevent the inconveniences which
began to arise from this multitude of constructive treasons,
the statute 25 Edw. III. c. 2, was made, which defines what
offences only for the future should be held to be treason.
[76] This statute must therefore be our text and guide in
order to examine into the several species of high treason.
And we shall find that it comprehends all kinds of high
treason under seven distinct branches.
1. ' ' When a man doth compass or imagine the death of
our lord the king, of our lady his queen, or of their eldest
son and heir."
Under this description it is held that a queen regnant is within the
words of the act, being invested with royal power, and entitled to the
allegiance of her subjects; but the husband of such a queen is not com-
prised within these words, and therefore no treason can be committed
against him. [77] The king here intended is the king in possession, with-
out any respect to his title, for it is held that a king de facto and not dc
jure, or, in other words, an usurper that hath got possession of tho
throne, is a king within the meaning of the statute, as there is a tem-
porary allegiance due to him for his administration of the government,
and temporary protection of the public. But the most rightful heir of
the crown, or king de jure 1 and not de facto? who hath never had plenary
possession of the throne, is not a king within this statute against whom
treasons may be .committed. And a very sensible writer on the crown
law [1 Hawk. P. C. 36] carries the point of possession so far that he
holds that a king out of possession is so far from having any right to
our allegiance, by any other title which he may set up against the king
in being, that we are bound by the duty of our allegiance to resist him,
a doctrine which he grounds upon the statute 11 Hen. VII. c. 1, which
is declaratory of the common law, and pronounces all subjects excused
from any penalty or forfeiture which do assist and obey a king dc facto,
The true distinction seems to be that the statute of Henry VII. does by
no means command any opposition to a king de jure, but excuses the obedi-
ence paid to a king de facto. [78]
Lastly, a king who has resigned his crown, such resignation being ad-
mitted and ratified in parliament, is according to Sir Matthew Hale no
longer the object of treason. And the same reason holds in case a king
abdicates the government, or, by actions subversive of the constitution,
1. Of right. 2. In fact.
CHAP. VI.] OF HIGH TREASON. Y 663
virtually renounces the authority which he claims by that very constitu-
tion.
Next, wliat is a compassing or imagining the death of the king, etc.
These are synonymous terms, the word compass signifying the purpose
or design of the mind or will, and not, as in common speech, the carry-
ing such design to effect. And therefore an accidental stroke, which may
mortally wound he sovereign, per infortunium, without any traitorous
intent, is no treason. But as this compassing or imagining is an act of
the mind, it cannot possibly fall under any judicial cognizance, unless
it be demonstrated by some open or overt act. [79] And yet the tyrant
Dionysius is recorded to have executed a subject barely for dreaming
that he had killed him, which was held of sufficient proof that he had
thought thereof in his waking hours. But in this and the three next
species of treason it is necessary that there appear an open or overt
act of a more full and explicit nature to convict the traitor upon. The stat-
ute expressly requires that the accused " be thereof upon sufficient proof
attainted of some open act by men of his own condition." Thus, to provide
weapons or ammunition for the purpose of killing the king is held to
be a palpable overt act of treason in imagining his death. To conspire
to inrprison the king by force, and move towards it by assembling com-
pany, is an overt act of compassing the king's death. There is no ques-
tion, also, but that taking any measures to render such treasonable pur-
poses effectual, as assembling and consulting on the means to kill the
king, is a sufficient overt act of high treason.
How far mere words spoken by an individual, and not relative to any
treasonable act or design then in agitation, shall amount to treason, has
been formerly matter of doubt. But now it seems clearly to be agreed
that by the common law and the statute of Edward III. words spoken
amount to only a high misdemeanor and no treason. [80] If the words
be set down in writing, it argues more deliberate intention, and it has
been held that writing is an overt act of treason, for scribere est agere.
But even in this case the bare words are not the treason, but the de-
liberate act of writing them. And such writing, though unpublished,
ha*s in some arbitrary reigns convicted its author of treason. There was
then no manner of doubt but that the publication of such a treasonable
.writing was a sufficient overt act of treason at the common law, though
of late even that has been questioned. [81]
2. The second species of treason is, " if a man do violate
the king's companion, or the king's eldest daughter un-
married, or the wife of the king's eldest son and heir."
By the king's companion is meant his wife, and by violation is un-
derstood carnal knowledge, as well without force as with it; and this
is high treason in both parties, if both be consenting. To violate a queen
or princess-dowager is held to be no treason.
OF HIGH TREASON. [BOOK IV.
3. The third species of treason is, ' ' if a man do levy war
against our lord the king in his realm."* And this may
be done by taking arms, not only to dethrone the king, but
under pretence to reform religion or the laws, or to remove
evil counselors, or other grievances, whether real or pre-
tended. To resist the king's forces by defending a castle
against them is a levying of war; and so is an insurrection
with an avowed design to pull down all inclosures, all
brothels, and the like; the universality of the design making
it a rebellion against the state, an usurpation of the powers
of government, and an insolvent invasion of the king's au-
thority. [82] But a tumult with a view to pull down a par-
ticular house or lay open a particular inclosure, amounts at
most to a riot, this being no general defiance of public
government. So if two subjects quarrel and levy war
against each other (in that spirit of private war which pre-
vailed all over Europe in the early feodal times), it is 1 only
a great riot and contempt, and no treason. A bare con-
spiracy to levy war does not amount to this species of
treason, but (if particularly pointed at the person of the
king or his government) it falls within the first, of com-
passing or imagining the king's death.
4. " If a man be adherent to the king's enemies in his
realm, giving to them aid and comfort in the realm or else-
where," he is also declared guilty of high treason. This
must likewise be proved by some overt act, as by giving
them intelligence, by sending them provisions, by selling
them arms, by treacherously surrendering a fortress, or the
like. [83] By enemies are here understood the subjects of
foreign powers with whom we are at open war. As to
foreign pirates or robbers, who may happen to invade our
coasts without any open hostilities between their nation
and our own, and without any commission from any prince
or state at enmity with tire crown of Great Britain, the
3. See quotations from the consti- constitutions generally define the
tution of the United States at the crime in the same terms as the con-
beginning of this chapter. stitution of the United States. Id.,
See, also, Clark's Crim. Law (2d 406. In the absence of such definition
Ed.), 406. There may also be treason the crime remains as at common law.
against a state. Id., 403. The state Id.; Whart. Crim. Law, 1812.
CHAP. \ r l.] OF HIGH TREASON. 665
giving them any assistance is also clearly treason. And
most indisputably, the same acts of adherence or aid which
(when applied to foreign enemies) will constitute treason
under this branch of the statute, will (when afforded to our
own fellow-subjects in actual rebellion at home) amount to
high treason under the description of levying war against
the king. But to relieve a rebel fled out of the kingdom is
no treason, for the statute is taken strictly, and a rebel is
not an enemy, an enemy being always the subject of some
foreign prince, and one who owes no allegiance to the crown
of England. And if a person be under circumstances of
actual force and constraint, through a well-grounded appre-
hension of injury to his life or person, this fear or com-
pulsion will excuse his even joining with either rebels or
enemies in the kingdom, provided he leaves them whenever
he hath a safe opportunity.
5. "If a man counterfeits the king's Great or Priyy Seal," this is also
high treason. But if a man take wax bearing the impression of the Great
Seal off from one patent, and fixes it 'to another, this is held to be only an.
abuse of the seal, and not a counterfeiting of it. 4
6. The sixth species of treason under this statute is, " if a man coun-
terfeit the king's money; and if a man brings false money into the realm
counterfeit to the money of England, knowing the money to be false to
merchandise and make payment withal." 5 [84]
7. The last species of treason ascertained by the statute is, " if a man
slay the chancellor, treasurer, or the king's justices of the one bench,
or the other, justices in eyre or justices of assise, and all other justices
assigned to hear and determine, being in their places doing their offices."
These high magistrates, as they represent the king's majesty during the
execution of their offices, are therefore for the time equally regarded by
the law. But this statute extends only to the actual killing of them, and
not wounding, or a bare attempt to kill them. It extends also only to the
officers therein specified. 6
The new treasons created since the statute 1 Mar. c. 1 [which reduced '
all treasons since the statute of 25 Edw. III. to the standard of that stat-
ute], and not comprehended under the description of statute 25 Edw. III.
. are comprised under three heads. [87] 1. Such as relate to papists. 2.
Such as relate to falsifying the coin or other royal signatures. 3. Such
as are created for the security of the Protestant succession in the House
of Hanover. [For particulars see text.]
4. See the United States statutes. 6. See the United States statutes.
5. See the United States statutes.
666 OF HIGH TREASON. [Boos IV.
The punishment of high treason in general is very solemn and ter-
rible. 1. That the offender be drawn to the gallows, and not be carried
or walk; though usually (by connivance, at length ripened by humaniiy
into law) a sledge or hurdle is allowed, to preserve the offender from the
extreme torment of being dragged on the ground or pavement. 2. That
he be hanged by the neck, and then cut down alive. [93] 3. That his en-
trails be taken out and burned while he is yet alive. 4. That his head
be cut off. 5. That his body be divided into four parts. 6. That his head
and quarters be at the king's disposal. 7
The king may, and often doth, discharge all the punishment except
beheading, especially where any of noble blood are attainted. For be-
heading, being part of the judgment, that may be executed, though all
the rest be omitted by the king's command. But where beheading is no
part of the judgment, as in murder or other felonies, it hath been said
that the king cannot change the judgment, although at the request of
the party, from one species of death to another.
In the case of coining, which is a treason of a different complexion
from the rest, the punishment is milder for male offenders, being only
to be drawn and hanged by the neck till dead. But in treasons of every
kind the punishment of women is the same, and different from that of
men. Their sentence is to be drawn to the gallows, and there to be
burned alive.
7. The punishment of treason both death. The barbaritiea described in
in England and the United State* is the text are no longer inflicted.
CHAP. VII.] OF FELONIES. 6GT
CHAPTER VII.
OF FELONIES INJURIOUS TO THE KINOES PREROGATIVE.
Felony in the general acceptation of our English law,
comprises every species of crime which occasioned at com-
mon law the forfeiture of. lands and goods. [94] This most
frequently happens in those crimes for which a capital pun-
ishment either is or was liable to be inflicted; for those
felonies which are called clergyable, or to which the benefit
of clergy extends, were anciently punished with death in
all lay or unlearned offenders, though now by the statute
law that punishment is for the first offence universally
remitted. All treasons, strictly speaking, are felonies,
though all felonies are not treason. [95] And to this also
we may add that not only all offences now capital are in
some degree or other felony, but that this is likewise the
case with some other offences which are not punished with
death, as suicide, where the party is already dead, homicide
by chance-medley or in self-defence, and petit larceny or
pilfering, all which are (strictly speaking) felonies, as
they subject the committers of them to forfeitures. So
that upon the whole the only adequate definition of felony
seems to be that which is before laid down, viz., an offence
which occasions a total forfeiture of either lands or goods,
or both, at the common law. 1
Capital punishment does by no means enter into the true
idea and definition of felony. [97] Felony may be without
inflicting capital punishment, as in the cases instanced of
self-murder, excusable homicide, and petit larceny; and it is
possible that capital punishments may be inflicted and yet
the offence be no felony, as in case of heresy by the common
1. Felony in this country is usually chusetts, Michigan, New York, Ten-
defined by statute to mean all of- nessee, Virginia, Wisconsin and prob-
fences which are punishable by death ably in others. See Washburn's Grim,
or imprisonment in the state's prison. Law (3d Ed.), 11, note; Clark's Grim.
It is so in California, Colorado, Illi- Law (2d Ed.), 40.
nois, Indiana, Iowa, Kentucky, M'assa-
068 OF FELONIES. [BOOK TV.
law, which, though capital, never worked any forfeiture of
lands or goods, an inseparable incident to felony. And
of the same nature was the punishment of standing mute
without pleading to an indictment, which at the common
law was capital, but without any forfeiture, and therefore
such standing mute was no felony. In short, the true cri-
terion of felony is forfeiture ; for, as Sir Edward Coke justly
observes, in all felonies which are punishable with death
the offender loses all his lands in fee-simple and also his
goods and chattels; in such as are not so punishable, his
goods and chattels only. The idea of felony is indeed so
generally connected with that of capital punishment, that
we find it hard to separate them; and to this usage the in-
terpretations of the law do now conform. [98] And there-
fore if a statute makes any new offence felony, the law
implies that it shall be punished with death, viz., by hang-
ing as well as with forfeiture; unless the offender prays the
benefit of clergy, 2 which all felons are entitled once to have,
provided the same is not expressly taken away by statute.
The felonies which are more immediately injurious to the king's pre-
rogative are: 1. Offences relating to the coin not amounting to treason.
2. Offences against the king's council. 3. The offence of serving a
foreign prince. 4. The offence of embezzling or destroying the king's
armor or stores of war. To which may be added a fifth, 5. Desertion
from the king's armies in time of war. [The rest of this chapter is
purely statutory, and inapplicable to this country.]
2. Now abolished.
CHAP. VIII.] OF PRAEMCNIRE. 660
CHAPTER VIII.
OF PRAEMUMRE.
A third species of offence more immediately affecting the king and his
government, thoueh not subject to capital punishment, is that of praemu-
nire, so called from the words of the writ preparatory to the prosecution
thereof: " praemunire [for praemoneri] facias A B," cause A B to be fore-
warned that he appear before us to answer the contempt wherewith he
stands charged, which contempt is particularly recited in the preamble
to the writ. It took its original from the exorbitant power claimed and
exercised in England by the pope. [103]
The original meaning of the offence which we call praemunire is this,
viz. introducing a foreign power into this land and creating imperium in
imperio, by paying that obedience to papal process which constitutionally
belonged to the king alone, long before the Reformation in the reign of
Henry VIII. [115] The penalties of praemunire being pains of no incon-
siderable consequence, it has been thought fit to apply the same to other
heinous offences, some of which bear more and some less relation to this
original offence, and some no relation at all. [116] [There being no
such offence in this country as praemunire, the rest of this chapter ia
omitted.]
C70 MlSPBISIONS AND CONTEMPTS. [BOOK IV.
CHAPTER IX.
OF MISPRISIONS AND CONTEMPTS AFFECTING THE KING AND
GOVERNMENT.
Misprisions (a term derived from the old French mespris,
a neglect or contempt) are, in the acceptation of our law,
generally understood to be all such high offences as are
under the degree of capital, but nearly bordering thereon;
and it is said that a misprision is contained in every treason
and felony whatsoever, and that if the king so please the
offender may be proceeded against for the misprison only.
[119]
Misprisions are generally divided into two sorts: nega-
tive, which consist in the concealment of something which
ought to be revealed, and positive, which consist in the
commission of something which ought not to be done.
I. Of the first, or negative kind, is what is called mispri-
son of treason, 1 consisting in the bare knowledge and con-
cealment of treason without any degree of assent thereto;
for any assent makes the party a principal traitor, as indeed
the concealment, which was construed aiding and abetting,
did at the common law. [120] But it is now enacted by the
statute 1 & 2 Ph. & M. c. 10, that a bare concealment of
treason shall be only held a misprision. This concealment
becomes criminal if the party apprized of the treason does
not, as soon as conveniently may be, reveal it to some judge
of assise or justice of the peace.
Misprision of felony is also the concealment of a felony
which a man knows, but never assented to; for if he as-
sented, this makes him either principal or accessary. 2 [121]
There is also another species of negative misprisions, namely, the con-
cealing of treasure-trOYe, which belongs to the king or his grantees by
prerogative royal, the concealment of which was formerly punishable
by death, but now only by fine and imprisonment.
1. An offence also against the 2. This is a misdemeanor. Clark's
United States. Rev. Stat. U. S.. Crim. Law (2d Ed.), 383.
5333; Clark's Crira. Law (2d Ed.),
406.
CHAP. IX.] MISPRISIONS AND CONTEMPTS. 671
II. Misprisions which are merely positive are generally
denominated contempts or high misdemeanors, of which
1. The first and principal is the mal-administration of
such high officers as are in public trust and employment.
This is usually punished by the method of parliamentary im-
peachment. 3 Hitherto also may be referred the offence of
embezzling the public money. 4 [122] With us it is not a
capital crime, but subjects the committer of it to a dis-
cretionary fine and imprisonment. Other misprisions are,
in general, such contempts of the executive magistrate as
demonstrate themselves by some arrogant and undutiful
behavior toward the king and government. There are
2. Contempts against the king's prerogative. As by re-
fusing to assist him for the good of the public, either in his
councils by advice if called upon, or in his wars by personal
service for defence of the realm against a rebellion or in-
vasion. Under w r hich class may be ranked the neglecting
to join the posse comitatus, or power of the county, being
thereunto required by the sheriff or justices according to
the statute 2 Hen. V. c. 8, which is a duty incumbent upon
all that are fifteen years of age, under the degree of nobility,
and able to travel. Contempts against the prerogative may
also be by preferring the interes.ts of a foreign potentate to
those of their own, or doing or receiving anything that may
create an undue influence in favor of such extrinsic power,
as by taking a pension from any foreign prince without
the consent of the king; or by disobeying the king's lawful
commands, whether by writs issuing out of his courts of
justice, or by a summons to attend his privy council, or by
letters from the king to a subject commanding him to return
from beyond seas (for disobedience to which his lands shall
be seized till he does return, and himself afterwards pun-
ished), or by his writ of ne exeat regnurn, 5 or proclamation
commanding the subject to stay at home, disobedience to
any of these commands is a high misprision and contempt.
3. See U. S. Const., art. 2, sec. 4. 5. That he depart not from the
4. See the state and federal stat- kingdom,
ntes ; also the several state constitu-
tions.
C72 MisriasioNS AXD CONTEMPTS. [BooK IV.
And so, lastly, is disobedience to any act of parliament
where no particular penalty is assigned; for then it is pun-
ishable, like the rest of these contempts, 6 by fine and im-
prisonment at the discretion of the king's courts of justice.
[123]
3. Contempt* and misprisions against the king's person and govern-
ment may be by speaking or writing against them, cursing or wishing
him ill, giving out scandalous stories concerning him, or doing any-
thing that may tend to lessen him in the esteem of his subjects, may
weaken his government, or may raise jealousies between him and his
people.
4. Contempts against the king's title, not amounting to . treason or
praemunire, are the denial of his right to the crown in common and unad-
vised discourse; for if it be by advisedly speaking, it amounts to a
praemunire.
5. Contempts against the king's palaces or courts of jus-
tice have been always looked upon as high misprisions.
And by the ancient law, before the Conquest, fighting in the king's
palace or before the king's judges was punished with death. [124] And
at present with us, by the statute 33 Hen. VIII. c. 12, malicious striking
in the king's palace, wherein his royal person resides, whereby blood
is drawn, is punishable by perpetual imprisonment and fine at the king's
pleasure, and also with loss of the offender's right hand, the solemn
execution of which sentence is prescribed in the statute at length. [125J
But striking in the king's superior courts of justice, in
Westminster Hall or at the assises, is made still more penal
than even in the king's palace. A stroke or blow in such
a court of justice, whether blood be drawn or not, or even
assaulting a judge sitting in the court, by drawing a weapon
without any blow struck, is punishable with the loss of
the right hand, imprisonment for life, and forfeiture of
goods and chattels, and of the profits of his lands during
life. A rescue, also, of a prisoner from any of the said
courts without striking a blow is punished with perpetual
imprisonment, and forfeiture of goods and of the profits
of lands during life. For the like reason, an affray or riot
6. Which are misdemeanors and not felonies. See the statutes.
CHAP. IX.] MISPRISIONS AND CONTEMPTS. 673
near the said courts, but out of their actual view, is pun-
ished only with fine and imprisonment.
Not only such as are guilty of an actual violence, but of
threatening or reproachful words to any judge sitting in
the courts, are guilty of a high misprision, and have been
punished with large fines, imprisonment, and corporal pun-
ishment. [126] And even in the inferior courts of the king
an affray or contemptuous behavior is punishable with a
fine by the judges there sitting.
Likewise, all such as are guilty of any injurious treat-
ment to those who are immediately under the protection of
a court of justice are punishable by fine and imprisonment:
as if a man assaults or threatens his adversary for suing
him, a counselor or attorney for being employed against
him, a juror for his verdict, or a gaoler or other ministerial
officer for keeping him in custody and properly executing
his duty.
Lastly, to endeavor to dissuade a witness from ^giving
evidence, to disclose an examination before the privy coun-
cil, or to advise a prisoner to stand mute (all of which are
impediments of justice), are high misprisions and con-
tempts of the king's courts, and punishable by fine and
imprisonment. And anciently it was held that if one of the
grand jury disclosed to any person indicted the evidence
that appeared against him he was thereby made accessory
to the offence, if felony, and in treason a principal. And at
this day it is agreed that he is guilty of a high misprision,
and liable to be fined and imprisoned. 7
7. "The power of punishing for Ed.), 191-193. Cases of contempt
contempt is incident to all courts were never triable by jury. Cooley's
having jurisdiction to try causes, as Const. Lim. (7th Ed.), 453, note. See,
well as to deliberative bodies acting also, People v. Wilson, 64 111. 195
in matters of government, like houses (libel upon Supreme Court punished
of parliament and houses of Con- as a contempt) ; Storey v. People, 79
gress." Washburn's Crim. Law (3d id. 45.
Ed.), *247; Cooley's Const. Lim. (7th
43
674 OFFENCES AGAINST PUBLIC JUSTICE. [BOOK IV.
CHAPTER X.
OF OFFENCES AGAINST PUBLIC JUSTICE.
The crimes and misdemeanors that more especially affect
the commonwealth may be divided into five species, viz.,
offences against public justice, against the public peace,
against public trade, against the public health, and against
the public police or economy. [128]
First, of offences against public justice, some of which
are felonious, whose punishment may extend to death;
others only misdemeanors. I shall begin with those that
are most penal, and descend gradually to such as are of less
malignity.
1. Embezzling or vacating records, or falsifying certain
other proceedings in a court of judicature, is [by statute]
a felonious offence against public justice. 1
2. To prevent abuses by the extensive power which the law is obliged
to repose in gaolers, it is nacted by statute 14 Edw. III. c. 10, that if any
gaoler by too great duress of imprisonment makes any prisoner that he
hath in ward become an approver or an appellor against his will, that
is, as we shall see hereafter, to accuse and turn evidence against some
other person, it is felony in the gaoler. [129] [Repealed.]
3. A third offence against public justice is obstructing the
execution of lawful process. 2 This is at all times an offence
of a very high and presumptious nature, but more particu-
larly so when it is an obstruction of an arrest upon criminal
process. And it hath been holden that the party opposing
such arrest becomes thereby particeps criminis, that is, an
accessory in felony, and a principal in high treason.
4. An escape of a person arrested upon criminal process
by eluding the vigilance of his keepers before he is put in
hold, is also an offence against public justice, and the party
himself is punishable by fine or imprisonment. [130] But
the officer permitting such escape, either by negligence or
1. Consult the local statutes. tory regulation in the several states.
2. This is made a matter of statu- Consult the statutes.
CHAP. X.] OFFENCES AGAINST PUBLIC JUSTICE. 675
connivance, is much more culpable than the prisoner. Offi-
cers, therefore, who after arrest negligently permit a felon
to escape, are also punishable by fine. But voluntary es-
capes, by consent and connivance of the officer, are a much
more serious offence; for it is generally agreed that such
escapes amount to the same kind of offence, and are punish-
able in the same degree as the offence of which the prisoner
is guilty and for which he is in custody, whether treason,
felony, or trespass and this whether he were actually
committed to gaol, or only under a bare arrest. 3 But the
officer cannot be thus punished till the original delinquent
hath actually received judgment or been attainted upon
verdict, confession, or outlawry of the crime for which he
was so committed or arrested. But before the conviction
of the principal party the officer thus neglecting his duty
may be fined and imprisoned for a misdemeanor.
5. Breach of prison by the offender himself when com-
mitted for any cause was felony at the common law, or even
conspiring to break it. 4 But this severity is mitigated by
the statute de frangentibus prisonam, 1 Edw. II., which en-
acts that no person shall have judgment of life or member
for breaking prison unless committed for some capital of-
fence; so that to break prison and escape when lawfully
committed for any treason or felony remains still felony
as at the common law; and to break prison (whether it be
the county gaol, the stocks, or other usual place of security)
when lawfully confined upon any other inferior charge, is
still punishable as a high misdemeanor by fine and impris-
onment. [131]
6. Rescue is the forcibly and knowingly freeing another
from an arrest or imprisonment; and it is generally the
same offence in the stranger so rescuing as it would have
been in a gaoler to have voluntarily permitted an escape.
A rescue, therefore, of one apprehended for felony is felony;
for treason, treason; and for a misdemeanor, a misdemeanor
also. 5 But here likewise, as upon voluntary escapes, the
principal must first be attainted or receive judgment before
3. Clark's Crim. Law (2d Eel.), 4. Id., 382.
381. 5. Id., 383.
67(5 OFFENCES AGAINST PUBLIC JUSTICE. [BOOK IV.
the rescuer can be punished; and for the same reason, be-
cause perhaps in fact it may turn out that there has been
no offence committed.
7. Another capital offence against public justice is the returning from
transportation, or being seen at large in Great Britain before the expira-
tion of the terra for which the offender was ordered to be transported,
or had agreed to transport himself. [132]
8. An eighth is that of taking a reward under pretence of helping the
owner to his stolen goods: to prevent which audacious practice, it was
enacted by statute 4 Geo. I. c. II, that whoever shall take a reward under
the pretence of helping any one to stolen goods shall suffer as the felon
who stole them, unless he causes such principal felon to be apprehended
and brought to trial, and also gives evidence against him.
9. Receiving of stolen goods, knowing them to be stolen,
is also a high misdemeanor and affront to public justice. 6
This offence, which is only a misdemeanor at common law,
by the statute 3 & 4 W. & M. c. 9, and 5 Anne, c. 31, makes
the offender accessary to the theft and felony. But be-
cause the accessary cannot in general be tried unless with
the principal or after the principal is convicted, the re-
ceivers by that means frequently eluded justice. [133] To
remedy which, it is enacted by statute 1 Anne, c. 9, and 5
Anne, c. 31, that such receivers may still be prosecuted for
a misdemeanor, and punished by fin<e and imprisonment,
though the principal felon be not before taken so as to be
prosecuted and convicted. So that now the prosecutor has
two methods in his choice: either to punish the receivers
for the misdemeanor immediately, before the thief is taken,
or to wait till the felon is convicted, and then punish them
as accessaries to the felony. But it is provided by the
same statutes that he shall only make use of one, and not
both of these methods of punishment.
10. Of a nature somewhat similar to the two last is the
6. This is now made a substantive consent of the person from whom re-
crime by statute in probably all the ceived; the receiver must know that
states. To constitute the offence the ii was stolen and must have a feloni-
property must have been stolen when ons intent. Clark's Crim. Law (2d
received; it must have come into the Ed. ), 327. See Wash. Crim. Law (3d
possession of the receiver with the Ed.), 66 and cases cited.
CHAP. X.] OFFENCES AGAINST PUBLIC JUSTICE. 677
offence of theft bote, which is where the party robbed not
only knows the felon, but also takes his goods again, or
other amends upon agreement not to prosecute. This is
frequently called compounding of felony, 7 and formerly was
held to make a man an accessary; but it is now punished
only with fine and imprisonment.
11. Common barratry is the offence of frequently exciting
and stirring up suits and quarrels between his Majesty's
subjects, either at law or otherwise. 8 [134] The punish-
ment for this offence, in a common person, is by fine and
imprisonment; but if. the offender (as is too frequently the
case) belongs to the profession of the law, a barrator, who
is thus able as well as willing to do mischief, ought also to
be disabled from practising for the future. Hereunto may
also be referred another offence of equal malignity and au-
daciousness,, that of suing another in the name of a ficti-
tious plaintiif, either one not in being at all, or one who is
ignorant of the suit. This offence, if committed in any of
the king's superior courts, is left, as a high contempt, to
be punished at their discretion. But in courts of a lower
degree, where the crime is equally pernicious but the au-
thority of the judges not equally extensive, it is directed
by statute 8 Eliz. c. 2, to be punished by six months' im-
prisonment and treble damages to the party injured.
12. Maintenance is an offence that bears a near relation to
the former, being an officious intermeddling in a suit that no
way belongs to one, by maintaining or assisting either
party, with money or otherwise, to prosecute or defend it. 9
A man may, however, maintain the suit of his near kinsman,
servant, or poor neighbor, out of charity and compassion,
with impunity. [135] Otherwise, the punishment by com-
mon law is fine and imprisonment, and by the statute 32
Hen. VIII. c. 9, a forfeiture of 10/.
13. Champerty, 1 campi-partitio, is a species of mainte-
7. Com. v. Pease, 16 Mass. 91; 9. 1 Hawk. PI. Cr., ch. 83, sec. 1;
Clark's Crim. Law (2d Ed.), 383. It Rev. Stat. 111. (1874), 355, 27;
is a misdemeanor at common law. Id., Moore's Crim. Law, 238.
383. 1. Clark's Crim. Law, 376; Wash.
8. Clark's Crim. Law, 376; Com. v. Crim. Law, 29. Champerty is a mis-
Davis, 11 Pick. 433. demeanor at common law. Lathrop
678 OFFENCES AGAINST PUBLIC JUSTICE. [BOOK IV.
nance, and punished in the same manner, being a bargain
with a plaintiff or defendant campum partire, to divide the
land or other matter sued for between them if they prevail
at law, whereupon the champertor is to carry on the party's
suit at his own expense. In our sense of the word it signi-
fies the purchasing of a suit or right of suing, a practice
so much abhorred by our law that it is one main reason why
a chose in action, or thing of which one hath the right but
not the possession, is not assignable at common law, be-
cause no man should purchase auy pretence to sue in an-
other's right. Hitherto also must be referred the provision
of the statute 32 Hen. VIII. c. 9, that no one shall sell or
purchase any pretended right or title to land, unless the
vendor hath received the profits thereof for one whole year
before such grant, or hath been in actual possession of the
land, or of the reversion or remainder. 2 [136] These of-
fences relate chiefly to the commencement of civil suits; but
14. The compounding of informations upon penal statutes
is an offence of an equivalent nature in criminal causes, and
is besides an additional misdemeanor against public justice
by contributing to make the laws odious to the people. At
once, therefore, to discourage malicious informers and to
provide that offences when once discovered shall be duly
prosecuted, it is enacted by statute 18 Eliz. c. 5, that if any
person, informing under pretence of any penal law, makes
any composition without leave of the court, or takes any
money or promise from the defendant to excuse him (which
demonstrates his intent in commencing the prosecution to
be merely to serve his own ends, and not for the public
good), he shall forfeit 10L, shall stand two hours on the
pillory, and shall be forever disabled to sue on any popular
or penal statute. 3
15. A conspiracy 4 also to indict an innocent man of fel-
v. Amherst Bank, 9 Met. 490 : Thomp- 2. Prohibited by statute in some
son v. Reynolds, 73 111. 1. In Iowa, states. Consult the statutes.
Michigan, Ohio, New Jersey, Massa- 3. See the local statutes,
chusetts and Vermont it is not (as 4. Dr. McLain in his work on Crim-
it seems) a criminal offence. See inal Law, 953, well defines conspir-
Wash. Crim. Law (3d Ed.), 29, 30, acy as "a combination of two or
and notes. Consult the local statutes. more persons by concerted action to
CHAP. X.] OFFENCES AGAINST PUBLIC JUSTICE. 679
ony falsely and maliciously, who is.accordingly indicted and
acquitted, is a farther abuse and perversion of public jus-
tice, for which the party injured may either have a civil
action by writ of conspiracy, or the conspirators, for there
must be at least two to form a conspiracy, may be indicted
at the suit of the king, and were by the ancient common law
to receive what is called the villenous judgment, viz., to lose
their libpram legem, whereby they are discredited and' dis-
abled as jurors or witnesses; to forfeit their goods and
chattels and lands for life; to have those lands wasted,
their houses razed, their trees rooted up, and their own
bodies committed to prison. But it now is the better
opinion that the villenous judgment is by long disuse be-
come obsolete, it not having been pronounced for some ages,
but instead thereof the delinquents are usually sentenced
to imprisonment, fine, and pillory. [137] To this head may
be referred the offence of sending letters threatening to
accuse any person of a crime punishable with death, trans-
portation, pillory, or other infamous punishment, with a
view to extort from him any money or other valuable chat-
tels. This is punishable by statute 30 Geo. II. c. 24, 5 at the
discretion of the court, with fine, imprisonment, pillory,
whipping, or transportation for seven years.
16. The next offence against public justice is the crime
of wilful and corrupt perjury, which is defined by Sir Ed-
ward Coke to be a crime committed when a lawful oath
is administered, in some judicial proceeding, to a person
who swears wilfully, absolutely, and falsely, in a matter
material to the issue or point in question. 6 The law takes
accomplish a criminal or unlawful committed by husband and wife alone,
purpose, or some purpose not in it- Clark's Crim.' Law (3d Ed.), 142, 143
self criminal, by criminal or unlawful and notes. In some states the offence
means." See, also, 2 Bish. Crim. Law is denned by statute. See Wash. Crim.
(7th Ed.), 171; 3 Greenl. Evid., Law (3d Ed.), 41 and local statutes.
89; Clark's Crim. Law, 142; Spies 5. Consult the federal and state
v. People, 122 111. 1. The gist of the statutes.
rime is in the unlawful combination 6. Clark's Crim. Law, 385; 3
and no farther overt act is necessary. Greenl. Ev., 188; Rev. Stat. 111.
It cannot be committed by less than 1874, 387, 225: 2 Comp. Laws Mich,
two persons. It cannot, therefore, be 1871, 7654; Code Iowa 1873,
CSO OFFENCES AGAINST PUBLIC JUSTICE. [Boox IV.
no notice of any perjury but such as is committed in some
court of justice having power to administer an oath, or be-
fore some magistrate or proper officer invested with a
similar authority, in some proceedings relative to a civil
suit or a criminal prosecution. The perjury must also be
corrupt (that is, committed malo animo), wilful, positive,
and absolute; not upon surprise or the like; it also must be
in some point material to the question in dispute. . [It was
a misdemeanor at common law.]
Subornation of perjury is the offence of procuring an-
other to take such a false oath as constitutes perjury in the
principal. 7 [138] The punishment of perjury and suborna-
tion at common law has been various. It was anciently
death, afterwards banishment or cutting out the tongue,
then forfeiture of goods, and now it is fine and imprison-
ment and never more to be capable of bearing testimony.
But the statute 5 Eliz. c. 9 (if the offender be prosecuted
thereon), inflicts the penalty of perpetual infamy and a fine
of 40/. on the suborner, and in default of payment, imprison-
ment for six months, and to stand with both ears nailed to
the pillory. Perjury itself is thereby punished with six
months' imprisonment, perpetual infamy, and a fine of 20/.,
or to have both ears nailed to the pillory. But the prosecu-
tion is usually carried on for the offence at common law.
3936; Rev. Stat.* N. Y., pt. 4, ch. 1, Clark's Crim. Law, 388; Wood v. Peo-
tit. 4, 1. An extra-judicial oath pie, 59 N. Y. 117.
does not constitute perjury. 2 Bish. Where the crime is defined by stat-
Crim. Law (4th Ed.), 984, 991, ute, as it frequently is, the elements
992; Wash. Crim. Law (3d Ed.), 89 of the off'ence are substantially the
and cases cited. same; not unfrequently extra-judicial
As to the form of administering false swearing is made perjury by
the oath, see the leading- case of Omi- statute. Consult the local statutes,
chund v. Barker, Willes, 538; 1 Smith Perjury cannot be committed jointly
Load. Cas. 535 (the witnesses in this by several persons, though it is said
case professed the Gentoo religion and one may be charged with perjury and
were sworn according to its forms), another with subornation in the same
The false testimony must be will- indictment. Com. v. Devine, 155
ful and corrupt. Clark's Crim. Law, Mass. 224.
387: State v. Hascall, 6 N. H. 352. 7. See Clark's Crim. Law (24 Ed.) r
The testimony must also be mate- 385. This is an offence at common
rial to the issue or matter of inquiry, law and usually also by statute.
CHAP. X.] OFFENCES AGAINST PUBLIC JUSTICE. 681
17. Bribery 8 is the next species of offence against public
justice, which is when a judge or other person concerned in
the administration of justice takes any undue reward to
influence his behavior in his office. [139] In England this
offence of taking bribes is punished, in inferior officers, with
fine and imprisonment, and in those who offer a bribe,
though not taken, the same. [140] But in judges, espe-
cially the superior ones, it hath been always looked upon
as so heinous an offence, that the Chief Justice Thorpe was
hanged for it in the reign of Edward III. By a statute,
11 Hen. IV., all judges and officers of the king convicted of
bribery shall forfeit treble the bribe, be punished at the
king's will, and be discharged from the king's service
forever.
18. Embracery is an attempt to influence a jury corruptly
to one side by promises, persuasions, entreaties, money, en-
tertainments, and the like. 9 The punishment for the per-
son embracing is by fine and imprisonment, and for the
juror so embraced, if it be by taking money, the punishment
is (by divers statutes of the reign of Edward IIL), per-
petual infamy, imprisonment for a year, and forfeiture of
the tenfold value.
19. The false yerdict of jurors, whether occasioned by embracery or
not, was anciently considered as criminal, and therefore exemplarily
punished by attaint in the manner formerly mentioned. [Obsolete.]
20. Another offence of the same species is the negligence
of public officers intrusted with the administration of jus-
tice, as sheriffs, coroners, constables, and the like, which
makes the offender liable to be fined, and in very notorious
cases will amount to a forfeiture of his office if it be a
beneficial one.
Wash. Crim. Law (3d Ed.),. 92; Me- officer be de facto and not de jure.
Clain's Crim. Law, 893. State v. Gardener, 53 Ohio St. 145.
8. Bribery may be committed by The offence is usually denned by stat-
either giving or receiving a reward to ute.
influence an official act, whether of 9. Clark's Crim. Law, 380; People
a judicial or other officer. Clark's v. Myers, 70 Cal. 582, and local stat-
Crim. Law (2d Ed.), 389; 2 Bish. utes.
\v Crim. Law. 85; McClain's This offence in practice is usually
Crim. Law, 896. It suffices that the punished as a contempt.
682 OFFENCES AGAINST PUBLIC JUSTICE. [BOOK IV.
21. There is yet another offence against public justice
which is a crime of deep malignity. [141] This is the
oppression and tyrannical partiality of judges, justices, and
other magistrates, in the administration and under the color
of their office. However, when prosecuted, either by im-
peachment in parliament or by information in the Court
of King's Bench (according to the rank of the offenders),
it is sure to be severely punished with forfeiture of their
offices (either consequential or immediate), fines, imprison-
ment, or other discretionary censure, regulated by the na-
ture and aggravations of the offence committed.
22. Lastly, extortion is an abuse of public justice which
consists in any officer's unlawfully taking, by color of his
office, from any man any money or thing of value that is
not due to him, or more than is due or before it is due. The
punishment is fine and imprisonment, and sometimes a for-
feiture of the office. 1
1. Usually regulated by express
statute.
CHAP. XL] OFFENCES AGAINST THE PUBLIC PEACE. 683
CHAPTEE XL
OF OFFENCES AGAINST THE PUBLIC PEACE.
These offences are either such as are an actual breach of
the peace, or constructively so by tending to make others
break it. [142] Both of these species are also either felo-
nious or not felonious. The felonious breaches of the peace
are strained up to that degree of malignity by virtue of sev-
eral modern statutes, and particularly,
fl. The riotous assembling of twelre persons or more, and not dis-
persing upon proclamation; 2. Unlawful hunting in disguise; 3. Know-
ingly to send any letter without a name, or with a fictitious name, de-
manding money, renison, or any other valuable thing, or threatening
(without any demand) to kill any of the king's subjects, or to fire their
houses, etc.; 4. To pull down or destroy any lock, sluice, or floodgate
erected by authority of parliament on a navigable river; or maliciously
to pull down or otherwise destroy any turnpike-gate or fence, toll-house
or weighing-engine thereunto belonging, erected by authority of parlia-
ment, etc.; were respectively felonies by statute.]
The remaining offences against the public peace are
merely misdemeanors, and not felonies; as
5. Affrays (from affraier, to terrify) are the fighting of
two or more persons in some public place, to the terror of
his majesty's subjects; 1 for if fighting be in private, it is
no affray, but an assault. [145] Affrays may be suppressed
by any private person present, who is justifiable in endeav-
oring to part the combatants, whatever consequence may
ensue. But more especially the constable or other similar
officer, however denominated, is bound to keep the peace,
and to that purpose may break open doors to suppress an
affray or apprehend the affrayers, and may either carry
them before a justice or imprison them by his own authority
for a convenient space till the heat is over, and may then
perhaps also make them find sureties for the peace. The
1. Clark's Crim, Law, 398. It is
a misdemeanor at common law. Id.
684 OFFENCES AGAINST THE PUBLIC PEACE. [BOOK IV.
punishment of common affrays is by fine and imprisonment.
Two persons may be guilty of an affray; 2 but
6. Riots, routs, and unlawful assemblies must have three
persons at least to constitute them. 3 [146] An unlawful
assembly is when three or more do assemble themselve.s
together to do an unlawful act, as to pull down enclosures,
to destroy a warren or the game therein, and part without
doing it, or making any motion towards it. 4 A rout is where
three or more meet to do an unlawful act upon a common
quarrel, as forcibly breaking down fences upon a right
claimed of common or of way, and make some advances
towards it. 5 A riot is where three or more actually do an
unlawful act of violence, either with or without a common
cause or quarrel, as if they beat a man; or hunt and kill
game in another's park, chase, warren, or liberty; or do
any other unlawful act with force and violence; or even do
a lawful act, as removing a nuisance in a violent and tumul-
tuous manner. 6
7. Nearly related to this head of riots is the offence of tumfouluous
petitioning, which was carried to an enormous height in the times pre-
ceding the Grand Rebellion. [147] Wherefore by statute 13 Car. II. st.
1, c. 5, it is enacted that not more than twenty names shall be signed to
any petition to the king or either house of parliament for any alteration
of matters established by law in church or state, unless the contents
thereof be previously approved, in the country by three justices or the
majority of the grand jury at the assises or quarter-sessions, and in
London by the Lord Mayor, aldermen, and Common Council, and that
no petition shall be delivered by a company of more than ten persons,
on pain in either case of incurring a penalty not exceeding 100'. and
three months' imprisonment. [148]
8. An eighth offence against the public peace is that of a
forcible entry or detainer, which is committed by violently
taking or keeping possession of lands and tenements, with
2. One person alone cannot commit 5. Id.; State v. Sunnier, 2 Speers,
it. Id. 599.
3. Clark's Crim. Law, 395 and cases 6. Clark's Crim. Law, 395-397;
cited. State v. Brazil, Rice (S. C.), 257;
4. Id. State v. Snow, 13 Me. 346; Green v.
State, 109 Ga. 536.
CHAP. XL] OFFENCES AGAINST THE PUBLIC PEACE. 685
menaces, force, and arms, and without the authority of law. 7
This was formerly allowable to every person disseised or
turned out of possession, unless his entry was taken away
or barred by his own neglect or other circumstances. But
the entry now allowed by law is a peaceable one, that for-
bidden is such as carried on and maintained with force, with
violence and unusual weapons. By the statute 5 Ric. II.
st. 1, c. 8, all forcible entries are punished with imprison-
ment and ransom at the king's will. And by the several
statutes of 15 Ric. II. c. 2, 8 Hen. VI. c. 9, 31 Eliz. c. 11, and
21 Jac. I. c. 15, upon any forcible entry or forcible detainer
after peaceable entry into any lands or benefices of the
church, one or more justices of the peace, taking sufficient
power of the county, may go to the place, and there record
the force upon his own view, as in case of riots, and upon
such conviction may commit the offender to gaol till he
makes fine and ransom to the king. And moreover the jus-
tice or justices have power to summon a jury to try the
forcible entry or detainer complained of, and if the same
be found by that jury, then, besides the fine on the offender,
the justices shall make restitution by the sheriff of the pos-
session, without inquiring into the merits of the title, for
the force is the only thing to be tried, punished, and reme-
died by them; and the same may be done by indictment at
the general sessions. But this provision does not extend
to such as endeavor to maintain possession by force, where
they themselves or their ancestors have been in the peace-
able enjoyment of the lands and tenements for three years
immediately preceding. [149]
9. The offence of riding or going armed with dangerous
or unusual weapons 8 is a crime against the public peace, by
terrifying the good people of the land, and is particularly
prohibited by the statute of Northampton, 2 Edw. III. c. 3,
7. Clark's Grim. Law ( 2d Ed. ) , 399 8. As to the right to bear arms,
and cases cited; Wash. Crim. Law see Cooley's Const. Lim. (7th Ed.),
(3d Ed.), 51 and cases cited. 498, 499 and notes. By the weight
Forcible entry and detainer, while of authority statutes prohibiting the
offences at common law, are in this carrying of concealed weapons are
country usually made crimes by etat- constitutional. Id., 499, note,
ute.
686 OFFENCES AGAINST THE PUBLIC PEACE. [BOOK IV.
upon pain of forfeiture of the arms, and imprisonment dur-
ing the king 's pleasure.
10. Spreading false news, to make discord between the
king and nobility, or concerning any great man of the
realm, is punishable by common law with fine and imprison-
ment, which is confirmed by statutes Westm. 1, 3 Edw. I.
c. 34, 2 Ric. II. st. 1, c. 5, and 12 Ric. II. c. 11.
11. False and pretended prophecies, with intent to dis-
turb the peace, are equally unlawful and more penal, as they
raise enthusiastic jealousies in the people, and terrify them
with imaginary fears. Such false and pretended prophecies
were punished capitally by statute 1 Edw. VI. c. 12, which
was repealed in the reign of Queen Mary. And now by the
statute of 5 Eliz. c. 15, the penalty for the first offence is
a fine of ten pounds and one year's imprisonment; for the
second, forfeiture of all goods and chattels, and imprison-
ment during life.
12. Besides actual breaches of the peace, anything that
tends to provoke or excite others to break it is an offence
of the same denomination. [150] Therefore challenges to
fight either by word or letter, or to be the bearer of such
challenge, are punishable by fine and imprisonment accord-
ing to the circumstances of the offence. 9
13. Of a nature very similar to challenges are libels, 1
nielli famosi,, which, taken in their largest and most ex-
tensive sense, signify any writings, pictures, or the like, of
an immoral or illegal tendency, but, in the sense under
which we are now to consider them, are malicious defama-
tions of any person, and especially a magistrate, made
public by either printing, writing, signs, or pictures, in or-
der to provoke him to wrath or expose him to public hatred,
contempt, and ridicule. 2 The direct tendency of these libels
9. Clark's Crim. Law, 394. No act- Publication is necessary to consti-
ual fighting is necessary. Id. tute criminal libel. Id.; Swindle v.
Usually made statutory offences in State, 2 Yerg (Tenn.), 581.
this country. Publication of defamatory matter
1. Civil actions for libel have al- concerning a dead person is a libel
ready been considered ante. if calculated to bring living people
2. Clark's Crim. Law (2d Ed.), into hatred, contempt or ridicule, but
400. not otherwise. Rex v. Topham, 4
CHAP. XL] OFFENCES AGAINST THE PUBLIC PEACE. 687
is the breach of the public peace, by stirring up the objects
of them to revenge, and perhaps to bloodshed. The com-
munication of a libel to any one person is a publication in
the eye of the law, and therefore the sending an abusive
letter to a man is as much a libel as if it were openly printed,
for it equally tends to a breach of the peace. For the same
reason it is immaterial with respect to the essence of a libel
whether the matter of it be true or false, since the provoca-
tion and not the falsity is the thing to be punished crim-
inally, though, doubtless, the falsehood of it may aggravate
its guilt and enhance its punishment. In a civil action a
libel must appear to be false as well as scandalous. But in
a criminal prosecution, the tendency which all libels have to
create animosities, and to disturb the public peace, is the
whole that the law considers. [151] And therefore in such
prosecutions the only points to be inquired into are, first,
the making or publishing of the book or writing, and, sec-
ondly, whether the matter be criminal; and if both these
points are against the defendant, the offence against the
public is complete. 3
In this and the other instances which we have lately con-
sidered, where blasphemous, immoral, treasonable, schis-
matical, seditious, or scandalous libels are punished by the
English law, the liberty of the press, properly understood,
is by no means infringed or violated. The liberty of the
press consists in laying no previous restraints upon publica-
tions, and not in freedom from censure for criminal matter
when published. [152] Every freeman has an undoubted
Term. Rep. 126; Clark's Crim. Law, libel; but now the general rule in the
400. ' United States is. that in a criminal
Malice is necessary, but may be in- prosecution for libel, the truth is a
ierred from the fact of publication. defence when published with a good
Clark's Crim. Law, 404; Com. v. motive and for a justifiable end; sub-
Blanding, 3 Pick 304. stantially the same rule now prevails
As to what communications are in England. Cooley's Const. Lim.
privileged, see Clark's Crim. Law, (7th Ed.), 656.
402; Cooley's Const. Lim. (7th Ed.), 3. The rule at common law was
09, 611, 616-636. changed by Mr. Fox's Libel Act. See
At common law the rule was: the Cooley's Const. Lim. (7th Ed.), 652-
greater the truth, the greater the 655.
688 OFFENCES AGAINST THE PUBLIC PEACE. [BOOK IV.
right to lay what sentiments he pleases before the public;
to forbid this is to destroy the freedom of the press; but if
he publishes what is improper, mischievous, or illegal, he
must take the consequenc'es of his own temerity. 4 To sub-
ject the press to the restrictive power of a licenser, as was
formerly done both before and since the Revolution, is to
subject all freedom of sentiment to the prejudices of one
man, and make him the arbitrary and infallible judge of
all controverted points in learning, religion, and govern-
ment. But to punish (as the law does at present) any dan-
gerous or offensive writings, which, when published, shall
on a fair and impartial trial be adjudged of a pernicious
tendency, is necessary for the preservation of peace and
good order, of government and religion, the only solid
foundations of civil liberty. Thus the will of individuals
is still left free, the abuse only of that free-will is the object
of legal punishment. [The press became properly free in
1694, and has ever since so continued.]
4. For a learned and exhaustive dis- Ed.), 596. Every student should read
cussion of liberty of speech and of the this chapter, if no more, of this
press, with a full citation of author- learned and useful treatise.
Hies, see Cooley's Const. Lim. (7th
CHAP. XII.] OFFENCES AGAINST PUBLIC TEADE. 689
CHAPTER XII.
/ 'OF OFFENCES AGAINST PUBLIC TRADE.
Offences against public trade, like those of the preceding
classes, are either felonious or not felonious. [154] Of the
first sort are,
1. Owling, so called from its being usually carried on in the night,
which is the offence of transporting wool or sheep out of this kingdom,
to the detriment of its staple manufacture. This was forbidden at com-
mon law, and more particularly by statute 11 Edw. III. c. 1, when the
importance of our woollen manufacture was first attended to, and there
are now many later statutes relating to this offence. [Repealed.]
2. Smuggling, or the offence of importing goods without
paying the duties imposed thereon by the laws of the cus-
toms and excise, is an offence generally connected and car-
ried on hand in hand with the former. [155] This is re-
strained by a great variety of statutes, which inflict pecun-
iary penalties and seizure of the goods for clandestine
smuggling, and affix the guilt of felony, with transporta-
tion for seven years, upon more open, daring, and avowed
practices. 1
3. Another offence against public trade is fraudulent bankruptcy. 2
[156]
4. Usury, which is an unlawful contract upon the loan of money to
receive the same again with exorbitant increase.
5. Cheating is another offence more immediately against
public trade. [157] Hither may be referred that prodigi-
ous multitude of statutes which are made to restrain and
punish deceits in particular trades, and which are enumer-
ated by Hawkins and Burn, but are chiefly of use among
the traders themselves. The offence of selling by false
weights and measures is reducible to this head of cheating. 3
1. This is an offence against the 2. See. generally, Collier on Bank-
United States. See the federal stat- ruptcy, 10th Ed. 1914.
utes. 3. The subject of usury is in this
44
690
OFFENCES AGAINST PUBLIC TRADE. [BOOK IV.
Now the general punishment for all frauds of this kind, if
indicted (as they may be) at common law, is by fine and
imprisonment. [158] Lastly, any deceitful practice in coz-
ening another by artful means, whether in matters of trade
or otherwise, as by playing with false dice, or the like, is
punishable with fine, imprisonment, and pillory. And by
the statutes 33 Hen. VIII. c. 1, and 30 Geo. II. "c. 4, if any
man defrauds another of any valuable chattels by color of
any false token, counterfeit letter, or false pretence, 4 or
pawns or disposes of another 's goods without the consent of
the owner, he shall suffer such punishment by imprison-
ment, fine, pillory, transportation, whipping, or other cor-
poral pain, as the court shall direct.
6. The offence of forestalling the market is also an offence
against public trade. This, which (as well as the two fol-
country entirely statutory; and a
great diversity of provisions exists.
The taking of usury is not generally
made a criminal offence, though in
some states it is a misdemeanor. Con-
sult the local statutes.
4. " Cheating by use of false
weights or false measures is indict-
able at common law. So, if done by
false tokens, which were some real
visible marks or things such as a
key or ring, made use of before the
general use of written orders, to in-
dicate that the person possessing it
may be trusted as coming from the
owner of such token." Washburn's
Crim. Law (3d Ed.), 37, 38; Com.
v. Warren, 6 Mass. 72. " But obtain-
ing goods by false pretences is not an
offence at common law." Wash.
Crim. Law, 38, citing Com. v. Call,
21 Pick. 520. See, generally, Clark's
Crim. Law (2d Ed.), 314, 316.
Obtaining goods by mere false pre-
tences not being indictable at com-
mon law, statutes have been enacted
probably in all the states remedying
this defect of the common law.
Clark's Crim. Law (2d Ed.), 316.
The offence is generally defined as
" the knowingly and designedly ob-
taining of the property of another by
false pretences, with the intent to de-
fraud Id. The pretence must be a
false representation as to some past
or existing fact and not a mere ex-
pression of opinion or a promise. The
pretence must be knowingly false,
made with intent and to some extent
calculated to defraud and it must in
fact deceive and defraud. The person
defrauded must not be guilty of gross
carelessness. All the circumstances
and the intelligence of the person de-
frauded are to be considered. Mere
credulity on the part of the person
defrauded is not a defence. See the
whole subject well considered and the
cases collected in Mr. Clark's treatise
on Criminal Law (2d Ed.), 316-323.
See some of the statutes in 2 Whart.
Crim. Law, 2068 et seq.; Rev. Stat.
111. (1874), 366. 96 et seq.; Code of
Iowa, 1873, 636, 4073; 2 Comp.
Laws Mich., 1871, 7590.
CHAP. XII.] OFFENCES AGAINST PUBLIC TRADE. 691
lowing) is also an offence at common law, was described by
statute 5 & 6 Edw. VI. c. 14, to be the buying or contracting
for any merchandise or victual coming in the way to market,
or dissuading persons from bringing their goods or pro-
visions there, or persuading them to enhance the price
when there, any of which practices make the market
dearer to the fair dealer.
7. Regrating was described by the same statute to be the
buying of corn or other dead victual in any market, and
selling it again in the same market, or within four miles
of the place; for this also enhances the price of the pro-
visions, as every successive seller must have a successive
profit.
8. Engrossing was also described to be the getting into
one's possession or buying up large quantities of corn or
other dead victuals, with intent to sell them again. This
must of course be injurious to the public, by putting it in
the power of one or two rich men to raise the price of pro-
visions at their own discretion. And so the total engross-
ing of any other commodity with an intent to sell it at
an unreasonable price is an offence indictable and finable
at the common law. [159] And the general penalty for
these three offences by the common law (for all the statutes
concerning them were repealed by 12 Geo. III. c. 71) is, as
in other minute misdemeanors, discretionary fine and im-
prisonment. 5
9. Monopolies are much the same offence in other
branches of trade that engrossing is in provisions, being a
license or privilege allowed by the king for the sole buying
and selling, making, working, or using of anything what-
soever whereby the subject in general is restrained from
that liberty of manufacturing or tracing which he had be-
5. These three offences have been the purpose of selling for grossly ex-
abolished by statute 7 & 8 Viet., c. tortionate prices is still indictable at
24. Mr. Clark states that they have common law. Id.; 2 Whart. Crim.
not been recognized as common law Law, 1849-1851 ; Morris Run Coal
crimes in this country (Clark's Crim. Co. v. Coal Co., 68 Pa. St. 173, 197.
Law [2d Ed.], 410; though Mr. See, also, Clark's Crim. Law, 146 and
Wharton states that obtaining a mo- notes,
nopoly of a necessary commodity for
692 OFFENCES AGAINST PUBLIC TRADE. [BooK IV.
fore. These had been carried to an enormous height during
the reign of Queen Elizabeth, and were heavily complained
of by Sir Edward Coke in the beginning of the reign of
King James L, but were in great measure remedied by
statute 21 Jac. I. c. 3, which declares such monopolies to
be contrary to law and void, except as to patents not ex-
ceeding the grant of fourteen years to the authors of new
inventions, and except also patents concerning printing,
saltpetre, gunpowder, great ordnance, and shot; and monop-
olists are punished with the forfeiture of treble damages
and double costs to those whom they attempt to disturb.
Combinations also among victuallers or artificers to raise
the price of provisions or any commodities, or the rate of
labor, are in many cases severely punished by particular
statutes. 6
10. To exercise a trade in any town without haling previously served
as an apprentice for seven years is looked upon to be detrimental to
public trade, upon the supposed want of sufficient skill in the trader,
and therefore is punished by statute 5 Eliz. c. 4, with the forfeiture of
forty shillings by the month.
11. Lastly, to prevent the destruction of our home manufactures, the
transporting and seducing our artists to settle abroad is prohibited by
the statutes 5 Geo. I. c. 27, and 23 Geo. II. c. 13.
6. See generally, Clark's Crim. Law
(2d Ed.), 146-148 and cases cited.
CHAP. XIII.] OFFENCES AGAINST PUBLIC HEALTH. 693
CHAPTER XIIL
OF OFFENCES AGAINST THE PUBLIC HEALTH AND THE PUBLIC
POLICE OR ECONOMY.
1. The first of these offences is a felony [161] [and relates to the isola-
tion of persons infected with the plague, or dwelling in an infected house.
The statutes upon the subject of quarantine are also referred to in this
connection. Not applicable to this country.]
[" It is a misdemeanor at common law to expose a per-
son laboring under an infectious disorder, as the small-
pox, in the streets or other public places. 1
2. A second, but much inferior species of offence against
public health is the selling of unwholesome provisions.
[162] To prevent which the statute 51 Hen. III. st. 6, and
the ordinance for bakers, c. 7, prohibit the sale of corrupted
wine, contagious or unwholesome flesh. [" It is a misde-
meanor at common law to give any person injurious food
to eat, whether the offender be excited by malice or a desire
of gain."] 2 These are all the offences which may properly
be said to respect the public health.
V. The last species of offences which especially affect the
commonwealth are those against the public police or econ-
omy. By the public police and economy I mean the due
regulation and domestic order of the kingdom, whereby the
individuals of the state, like members of a well-governed
family, are bound to conform their general behavior to the
rules of propriety, good neighborhood, and good manners,
and to be decent, industrious, and inoffensive in their re-
spective stations. This head of offences must therefore be
very miscellaneous, as it comprises all such crimes as es-
pecially affect public society, and are not comprehended
under any of the four preceding species. These amount,
some of them to felony, and others to misdemeanors only.
Among the former are:
1. 4 M. & S. 73, 272. See post, . 2. 2 East. P. C. 822; 6 East. 133-
Nuisances, also Clark's Crim. Law 141.
(2d Ed.), 347 and cases.
694 OFFENCES AGAINST PUBLIC HEALTH. [Boox IV.
1. The offence of clandestine marriages. [163] [Not applicable to this
country.]
2. Another felonious offence is what some have corruptly
called bigamy, 3 which properly signifies being twice mar-
ried, but is more justly denominated polygamy, or having
a plurality of wives at once. 4 Such second marriage, living
the former husband or wife, is simply void, and a mere
nullity by the ecclesiastical law of England. [164] With
us in England it is enacted by statute 1 Jac. I. c. 11, that
if any person, being married, do afterwards marry again,
the former husband or wife being alive, it is felony, but
within the benefit of clergy. The first wife in this case
shall not be admitted as a witness against her husband,
because she is the true wife; but the second may, for she is
indeed no wife at all ; and so vice versa, of a second husband.
This act makes an exception to five cases in which such
second marriage, though in the three first it is void, is yet
no felony. 1. Where either party hath been continually
abroad for seven years, whether the party in England hath
notice of the other's being living or not. 2. Where either
of the parties hath been absent from the other seven years
3. This is a statutory crime in prob- of the council of Lyons, A. D. 1274,
ably all the states. The statutes gen- held under pope Gregory X. were
erally except from their penalties a omni privilegio clericali nudati, et
person whose husband or wife has cocrcioni fori secularis addicti. 6
been absent for a certain number of Decretal, 1, 12. This canon was
years without being known by such adopted and explained in England, by
person to be living within that time, statute 4 Edw. I., st. 3, c. 5, and
and those legally divorced a vinculo bigamy thereupon became no uncom-
from the first marriage before the mon counter-plea to the claim of the
solemnization of the second. Clark's benefit of clergy. M. 40 Edw. III.,.
(Mm. Law (2d Ed.), 353. In some 42; M. 11 Hen. IV., 11, 48; M. 13
of the states the statutes prohibit a Hen. IV., 6 Staundf. P. C. 134. The
second marriage after divorce. See, cognizance of the plea of bigamy was
generally, Id., 355 and notes. declared by statute 18 Edw. III., st.
4. 3 Inst. 88. Bigamy, according 3, c. 2, to belong to the court chris-
to the canonists, consisted in marry- tian, like that of bastardy. But by
ing two virgins successively, one after stat. 1 Edw. VI., c. 12, 16, bigamy
the death of the other, or once marry- was declared to be no longer an im-
ing a widow. Such were esteemed in- pediment to the claim of clergy. See
capable of orders, etc., and by a canon Dal. 21, Dyer, 201.
CHAP. XIII. ] OFFENCES AGAINST PUBLIC HEALTH. 695
within this kingdom, and the remaining party hath had no
knowledge of the other's being alive within that time.
3. Where there is a divorce (or separation a mensa et thoro)
by sentence in the ecclesiastical court. 4. Where the first
marriage is declared absolutely void by any such sentence,
and the parties loosed a vinculo. Or, 5. Where either of
the parties was under the age of consent at the time of the
first marriage, for in such case the first marriage was void-
able by the 'disagreement of either party, which the second
marriage very clearly amounts to. But if at the age of
consent the parties had agreed to the marriage, which cojn-
pletes the contract, and is indeed the real marriage, and
afterwards one of them should marry again, I should appre-
hend that such second marriage would be w r ithin the reason
and penalties of the act. [165]
3. A third species of felony against the good order and economy of
the kingdom is by idle soldiers and mariners wandering about the realm,
or persons pretending so to be, and abusing the name of that honorable
profession. [Repealed.]
4. Outlandish persons calling themselves Egyptians, or gypsies, are
another object of the severity of some of our unrepealed statutes. [The
act of 5 Eliz. c. 20, is repealed, and gypsies are now only punishable as
vagrants.]
5. To descend next to offences whose punishment is short
of death. Common nuisances are a species of offence
against the public order and economical regimen of the
state, being either the doing of a thing to the annoyance of
all the king's subjects [i. e. of the community at large],
or the neglecting to do a thing which the common good
requires. [167] Common nuisances are such inconvenient
and troublesome offences as annoy the whole community in
general and not merely some particular person, and there-
fore are indictable only and not actionable [unless special
damage is shown]. 5 Of this nature are 1. Annoyances in
5. See ante, note. "Whatever public morals and sense of decency;
tends to endanger life, or . gen- whatever shocks the religious feelings
erats disease and affect the health of of the community or tends to its .us-
the community; whatever shocks the comfort, is generally, at common law
69G OFFENCES AGAINST PUBLIC HEALTH. [BOOK IV.
highways, bridges, and public rivers, by rendering the
same inconvenient or dangerous to pass, either positively
by actual obstructions, or negatively by want of reparations.
For both of these the person so obstructing, or such indi-
viduals as are bound to repair and cleanse them, or (in de-
fault of these last) the parish at large, may be indicted,
distrained to repair and mend them, and in some cases
fined. Where there is a house erected or an inclosure made
upon any part of the king's demesnes, or of an highway, or
common street, or public water, or such like public things,
it. is properly called a purpresture. 2. All those kinds of
nuisances (such as offensive trades and manufactures),
which when injurious to a private man are actionable, are,
when detrimental to the public, punishable by public prose-
cution, and subject to fine, according to the quantity of the
misdemeanor; and particularly the keeping of hogs in any
city or market town is indictable as a public nuisance. [168]
All disorderly inns or ale-houses, bawdy-houses, gaming-
houses, 6 stage-plays unlicensed, booths and stages for ro/i*'-
dancers, mountebanks, and the like, are public nuisances,
and may upon indictment be suppressed and fined. Inns
in particular, being intended for the lodging and receipt of
travellers, may be indicted, suppressed, and the innkeepers
fined, if they refuse to entertain a traveller without a very
sufficient cause; for thus to frustrate the end of their in-
stitution is held to be disorderly behavior. 4. By statute
10 & 11 W. III. c. 17, all lotteries are declared to be public
nuisances, and all grants, patents, or licenses for the same
to be contrary to law. But as state-lotteries have for many
years past been found a ready mode for raising the supply,
a public nuisance and a crime." 6. Private gambling is not a nui-
Clark's Crim. Law (2d Ed.), 346 and sance at common law; but gambling
cases cited in notes, where a large becomes so if conducted openly and
number of instances are stated, notoriously. Id.. 349; Lord v. State,
''There may be nuisances in public 16 N. H. 325; Kneffler v. Com., 94
deportment, such as common brawlers, Ky. 359 (stock gambling). Many of
common scolds, common barrators, the acts and conditions that were nui-
open and notorious drunkenness, in- sances at common law have also been
decent and public exposure of the per- made such by statute. Consult the
son," etc., etc. Id., 348, 349. local statutes and ordinances of cities.
CHAP. XIII.] OFFENCES AGAINST PUBLIC HEALTH. 697
an act was made, 19 Geo. III. c. 21, to license and regulate
the keepers of such lottery-offices. [State lotteries are now
abolished.] 5. The making and selling of fireworks and
squibs, or throwing them about in any street, is, on account
of the danger that may ensue to any thatched or timber
buildings, declared to be a common nuisance by statute 9 &
10 W. III. c. 7, and therefore is punishable by fine. [In-
dictable also at common law.] And to this head we may
refer (though not declared a common nuisance) the making,
keeping, or carriage of too large a quantity of gunpowder
at one time or in one place or vehicle, which is prohibited
by statute, 12 Geo. III. c. 61, under heavy penalties and for-
feiture. 6. Eavesdroppers, or such as listen under walls or
windows or the eaves of a house to hearken after discourse,
and thereupon to frame slanderous and mischievous tales,
are a common nuisance and presentable at the court-leet, or
are indictable at the sessions, and punishable by fine and
finding sureties for their good behavior. 7. Lastly, a com-
mon scold, communis rixatrix (for our law-Latin confines
it to the feminine gender), is a public nuisance to her neigh-
borhood. For which offence she may be indicted, and if
convicted shall be sentenced to be placed in a certain engine
of correction called the trebucket, castigatory or cucking-
stool, which in the Saxon language is said to signify the
scolding-stool, though now it is frequently corrupted into
ducking-stool, because the residue of the judgment is, that
when she is so placed therein she shall be plunged in the
water for her punishment. 7 [169]
6. Idleness in any person whatsoever is also a high of-
fence against the public economy. 8
7. Under the head of public economy may also be properly ranked all
sumptuary laws against luxury, and extravagant expenses in dress, diet,
and the like, concerning the general utility of which to a state there is
7. The ducking-stool is not the pun- v. Commonwealth, 12 Serg. & R. 220
ishment of a common scold in Penn- (1825); United States v. Royall, 3
sylvania. The offence now, however, Cranch, C. C. 620 (1829).
is indictable, and to be punished by 8. See the statutes on vagrancy in
fine, or by fine and imprisonment, at the several states,
the discretion of the court. James
COS
OFFENCES AGAIXST PUBLIC HEALTH. [BOOK IV.
much controversy among the political writers. [170] [All such laws
are opposed to the spirit of our institutions.]
8. Next to that of luxury naturally follows the offence of
gaming, which is generally introduced to supply or retrieve
the expenses occasioned by the former. [171] 9
9. [The killing of game, here treated by our author, has
been made the subject of a great variety of statutes in this
country, which see.] [173]
9. "At common law, the playing at
cards, dice, and other games of
chance, merely for the purposes of
recreation, and without any view to
inordinate gain, is regarded as inno-
cent. But a common player at haz-
ard, using false dice, is liable to be
indicted at common law, and any per-
sons cheating by means of cards or
dice might be fined or imprisoned in
proportion to the nature of the of-
fence." See ante, note. This sub-
ject has been variously legislated
upon in the United States; see the
local statutes.
CHAP. XIV.] OF HOMICIDE. 699
CHAPTER XIV.
OF HOMICIDE.
Homicide, or the killing of any human creature, is of
three kinds, justifiable, excusable, and felonious. [177] The
first has no share of guilt at all; the second very little; but
the third is the highest crime against the law of nature
that man is capable of committing. [178]
I. Justifiable homicide is of divers kinds.
1. Such as is owing to some unavoidable necessity, with-
out any will, intention, or desire, and without any inadver-
tence or negligence in the party killing, and therefore with-
out any shadow of blame. As, for instance, by virtue of
such an office as obliges one, in the execution of public jus-
tice, to put a malefactor to death who had forfeited his
life by the laws and verdict of his country. But the law
must require it, otherwise it is not justifiable; therefore,
wantonly to kill the greatest of malefactors, a felon or a
traitor, attainted or outlawed, deliberately, uncoinpelled,
and extra judicially, is murder. 1 And further, if judgment
of death be given by a judge not authorized by lawful com-
mission, and execution is done accordingly, the judge is
guilty of murder. Also such judgment, when legal, must
be executed by the proper officer or his appointed deputy;
for no one else is required by law to do it, which requisition
it is that justifies the homicide. If another person doth
it of his own head it is held to be murder, even though it be
the judge himself. [179] It must further be executed
gervato juris ordine; 2 it must pursue the sentence of the
court. If an officer beheads one who is adjudged to be
hanged, or vice versa, it is murder; for he is merely minis-
terial, and therefore only justified when he acts under the
authority and compulsion of the law.
. 1. Clark's Crim. Law, 153; Com. v. not lawfully be killed except in war.
Bowen, 13 Mass. 356; Evans v. Peo- State v. Gut, 13 Minn. 341.
pie, 49 N. Y. 86. Even an enemy can- 2. According to the order of the
court.
700 OF HOMICIDE. [BOOK IV.
Again, in some cases homicide is justifiable rather by the
permission than by the absolute command of the law, eillici-
for the advancement of public justice, which without such
indemnification would never be carried on with proper viijor,
or in such instances where it is committed for the prccenl'nm
of some atrocious rrinic which cannot otherwise be avoided/ 1
2. Homicides committed for the advancement of public
justice are: 1. Where an officer, in the execution of his
office, either in a civil or criminal case, kills a person that
assaults and resists him. 2. If an officer or any private
person attempts to take a man charged with felony and is
resisted, and in the endeavor to take him kills him. 4 3. In
case of a riot or rebellious assembly, the officers endeavoring
to disperse the mob are justifiable in killing them, both at
common law and by the riot act, 1 Geo. I. c. 5. [180]
4. Where the prisoners in a gaol or going to a gaol assault
the gaoler or officer, and he in his defence kills any of them,
it is justifiable for the sake of preventing an escape.
5. If trespassers in forests, parks, chases, or warrens will not sur-
render themselves to the keepers, they may be slain, by virtue of the
statute 21 Edw. I. st. 2, de malcfactoribus in poms, 5 and 3 & 4 W. & M. c. 10.
But in all these cases there must be an apparent necessity
on the officer's side, viz., that the party could not be ar-
rested or apprehended, the riot could not be suppressed,
the prisoners could not be kept in hold, &c., unless such
homicide were committed ; otherwise, without such absolute
necessity, it is not justifiable. 6
6. If the champions in a trial by battle killed either of them the other,
such homicide was justifiable.
In the next place, such homicide as is committed for the
3. See Clark's Crim. Law, 158, 160, be arrested does not resist but flees.
164, where the subject of justifiable C'lark's Crim. Law, 163; State v.
and excusable homicide is well con- Moore, 39 Conn. 244.
eidered and the cases cited. 5. Concerning criminals in parks.
4. Not so in civil cases and misde- -6. Clark's Crim. Law, 181.
meanors where the person sought to
CHAP. XIV.] . OF HOMICIDE. 701
prevention of any forcible and atrocious crime is justifiable
by the law of nature, and also by the law of England, as it
stood so early as the time of Bracton, and as it is since de-
clared in statute 24 Hen. VIII. c. 5. If any person attempts
a robbery or murder of another, or attempts to break open
a house in the night-time (which extends also to an attempt
to burn it), and shall be killed in such attempt, the slayer
shall be acquitted and discharged. 7 This reaches not to
any crime unaccompanied with force, as picking of pockets,
or to the breaking open of any house in the day-time, un-
less it carries with it an attempt of robbery also. 8 The
English law justifies a woman killing one who attempts to
ravish her, and so too the husband or father may justify
killing a man who attempts a rape upon his wife or daugh-
ter; 9 but not if he takes them in adultery by consent, for
the one is forcible and felonious, but not the other. 1 [181]
And I make no doubt but the forcibly attempting a crime of
a still more detestable nature may be equally resisted by
the death of the unnatural aggressor. For the one uniform
principle that runs through our own and all other laws
seems to be this: that where a crime, in itself capital, is
endeavored to be committed by force, it is lawful to repel
that force by the death of the party attempting. 2
In these instances of justifiable homicide it may be ob-
served that the slayer is in no kind of fault whatsoever, not
even in the minutest degree, and is therefore to be totally
acquitted and discharged with commendation rather than
blame.. [181] But that is not quite the case in excisable
homicide, the very name whereof imports some fault, some
error or omission; so trivial, however, that the law excuses
it from the guilt of felony, though in strictness it judges it
deserving of some little degree of punishment.
II. Excusable homicide is of two parts: either per infor-
tunium, by misadventure, or se dcfendendo, upon a principle
of self-preservation. We will first see wherein these two
species of homicide are distinct, and then wherein they
agree.
7. Clark's Crim. Law, 164 and 9. .Id.
cases cited. 1. Id.
8. Id., 165 and cases cited. 2. Id. >
702 OF HOMICIDE. [BOOK IV.
1. Homicide per infortunium, or misadventure, is where
a man, doing a lawful act without any intention of hurt,
unfortunately kills another; as where a man is at work
with a hatchet, and the head thereof flies off and kills a
stander-by, or where a person qualified to keep a gun is
shooting at a mark, and undesignedly kills a man, for the
act is lawful and the effect is merely accidental. 3 So where
a parent is moderately correcting his child, a master his
apprentice or scholar, or an officer punishing a criminal, and
happens to occasion his death, it is only misadventure, for
the act of correction is lawful; but if he exceeds the bounds
of moderation, either in the manner, the instrument, or tlio
quantity of punishment, and death ensues, it is manslaugh-
ter at least, and in some cases (according to the circum-
stances) murder, for the act of immoderate correction is
unlawful. [183] A tilt or tournament, the martial diver-
sion of our ancestors, was, however, an unlawful act; and
so are boxing and sword-playing, the succeeding amuse-
ment 'of their posterity; and therefore, if a knight in the
former case, or a gladiator in the latter, be killed, such
killing is felony or manslaughter. But if the king com-
mand or permit such diversion, it is said to be only misad-
venture, for then the act is lawful. Likewise to whip an-
other's horse, whereby he runs over a child and kills him,
is held to be accidental in the rider, for he had done nothing
unlawful, but manslaughter in the person who whipped
him, for the act was a trespass, and at best a piece of idle-
ness of inevitably dangerous consequence. And in general,
if death ensues in consequence of an idle, dangerous, and
unlawful sport, as shooting or casting stones in a town, or
the barbarous diversion of cock-throwing, in these and
similar cases the slayer is guilty of manslaughter, and not
misadventure only, for these are unlawful acts. 4
2. Homicide in self-defence, or sc dcfendendo, upon a sud-
den affray, is also excusable rather than justifiable by the
English law. This right of natural defence does not imply
a right of attacking. [184] A man cannot, therefore, le-
3. Id., 176. Law, 176, 177, where the subject ia
4. See, generally, Clark's Crim. well considered.
CHAP. XIV.] OF HOMICIDE. 703
gaily exercise this right of preventive defence but in sudden
and violent cases, when certain and immediate suffering
would be the consequence of waiting for the assistance of
the law. Wherefore, to excuse homicide by the* plea of
self-defence, it must appear that the slayer had no other
possible (or at least probable) means of escaping from his
assailant. 5
It is frequently difficult to distinguish this species of
homicide (upon chance-medley in self-defence) from that of
manslaughter, in the proper legal sense of the word. But
the true criterion between them seems to be this : when both
parties are actually combating at the time when the mortal
stroke is given, the slayer is then guilty of manslaughter;
but if the slayer has not begun the fight, or, having begun,
endeavors to decline any further struggle, and afterwards,
being closely pressed by his antagonist, kills him to avoid
his own destruction, this is homicide excusable by self-
defence. For which reason the law requires that the per-
son who kills another in his own defence should have re-
treated as far as he conveniently or safely can, to avoid the
violence of the assault, before he turns upon his assailant;
and that not factitiously or in order to watch his oppor-
tunity, but from a real tenderness of shedding his brother's
blood. [185] The party assaulted must flee as far as he
conveniently can, either by reason of some wall, ditch, or
other impediment, or as far as the fierceness of the assault
will permit him; for it may be so fierce as not to allow him
to yield a step without manifest danger of his life or enor-
mous bodily harm, and then in his defence he may kill his
assailant instantly. 6
And as the manner of the defence, so is also the time to
be considered ; for if the person assaulted does not fall upon
the aggressor till the affray is over, or when he is running
away, this is revenge, and not defence. Neither, under the
color of self-defence, will the law T permit a man to screen
himself from the guilt of deliberate murder; for if two per-
5. Id., 166-170 and notes; Wash. 6. Clark's Crim. Law, 166-170;
Crim. Law (3d Ed.), 82; 1 Bish. Wash. Crim. Law, 82-85.
Crim. Law (7th Ed.), 850.
704 OF HOMICIDE. [BOOK IV.
sons, A and B, agree to fight a duel, and A gives the first
onset, and B retreats as far as he safely can, and then kills
A, this is murder, because of the previous malice and con-
certed design. But if A upon a sudden quarrel assaults B
first, and upon B's returning the assault A really and boni
fide flees, and, being driven to the wall, turns again upon B
and kills him, this may be se defcndendo according to some
of our writers; though others have thought this opinion
too favorable, inasmuch as the necessity to which he is at
last reduced originally arose from his own fault. 7 [186]
Under this excuse, of self-defence, the principal civil and
natural relations are comprehended; therefore master and
servant, parent and child, husband and wife, killing an
assailant in the necessary defence of each other respectively,
are excused; the act of the relation assisting being con-
strued the same as the act of the party himself. 8
There is one species of homicide se defendendo, where
the party slain is equally innocent as he who occasions his
death, and yet this homicide is also excusable from the great
universal principle of self-preservation, which prompts
every man to save his own life perferably to that of another,
where one of them must inevitably perish. As, among
others, in that case mentioned by Lord Bacon, 9 where two
persons, being shipwrecked, and getting on the same plank,
but finding it not able to save them both, one of them thrusts
the other from it, whereby he is drowned.
III. Felonious homicide is an act of a very different
nature from the former, being the killing of a human crea-
ture of any age or sex, without justification or excuse. [188]
This may be done either by killing one's self or another
man.
The law has ranked self-murder among the highest
crimes, making it a particular species of felony, a felony
7. Id. Case, 5 Coke, 91; 1 Smith's Lead.
8. Id., 175, 185. The members of Cas. 183 and notes.
a family may protect and defend each 9. Elem., c. 5. See, also. Hawk.
other; so may a man's guests and, P. C. 73; United States v. Holm -,
neighbors aid in resisting an attack 1 Wall. Jr. 1. See, however, contra,
on his house. Clark's Crim. Law, Queen v. Dudley, 14 Q. B. 273.
175 and cases cited. See Semayne's
CHAP. XIV.] OF HOMICIDE. 705
committed on one's self. [189] And this admits of acces-
saries before the fact as well as other felonies; for if one
persuades another to kill himself, and he does so, the ad-
viser is guilty of murder. A felo de se, 1 therefore, is he that
deliberately puts an end to his own existence or commits
any unlawful malicious act, the consequence of which is his
own death: as if, attempting to kill another, he runs upon
his antagonist's sword, or, shooting at another, the gun
bursts and kills himself. The party must be of years of
discretion and in his senses, else it is no crime. But this
excuse ought not to be strained to that length to which our
coroner's juries are apt to carry it, viz., that the very act
of suicide is an evidence of insanity, as if every man who
acts contrary to reason had no reason at all. The law very
rationally judges that every melancholy or hypochondriac
fit does not deprive a man of the capacity of discerning
right from wrong, which is necessary to form a legal excuse.
[190] And therefore if a real lunatic kills himself in a
lucid interval, he is a felo de se as much as another man. 2
But what punishment can human laws inflict on one who has with-
drawn himself from their reach? They can only act upon what he has
left behind him, his reputation and fortune, on the former, by an ignom-
inious burial in the highway with a stake driven through his body, on.
the latter, by a forfeiture of all his goods and chattels to the king.
The other species of criminal homicide is that of killing
another man; but in this there are also degrees of guilt,
which divide the offence into manslaughter and murder.
1. Manslaughter is denned to be the unlawful killing of
another without malice either express or implied, which
may be either voluntarily upon a sudden heat, or involun-
tarily, but in the commission of some unlawful act. 3 [191]
And hence it follows that in manslaughter there can be no
1. Murder of one's self. 195, where the cases are collected.
2. It has been held in this country There are, however, so far as we
that suicide is not a crime, though know, no forfeitures or penalties
there is a conflict of cases on the therefor in this country.
subject. Clark's Crim. Law (2d Ed.), 3. Clark's Crini. Law, 197.
.45
700 OF HOMICIDE. [Boox IV.
accessaries before the fact, because it must be done without
premeditation. 5
As to the first, or voluntary branch, if upon a sudden
quarrel two persons fight and one of them kills the other,
this is manslaughter; and so it is if they upon such an
occasion go out and fight in a field, for this is one continued
act of passion. So also if a man be greatly provoked, as
by pulling his nose, or other great indignity, and imme-
diately kills the aggressor though this is not excusable se
defendendo? since there is no absolute necessity for doing
it to preserve himself, yet neither is it murder, for there is
no previous malice; but it is manslaughter. But in this
and in every other case of homicide upon provocation, if
there be a sufficient cooling-time for passion to subside and
reason to interpose, and the person so provoked afterwards
kills the other, this is deliberate revenge and not heat of
blood, and accordingly amounts to murder. 7 So if a man
takes another in the act of adultery with his wife, and kills
him directly upon the spot, in England it is not absolutely
ranked in the class of justifiable homicide, as in case of a
forcible rape, but it is manslaughter. [192] Manslaughter,
therefore, on a sudden provocation differs from excusable
homicide se defendendo in this, that in one case there is an
apparent necessity for self-preservation to kill the aggres-
sor, in the other no necessity at all, being only a sudden act
of revenge.
The second branch, or involuntary manslaughter, differs
also from homicide excusable by misadventure in this, that
misadventure always happens in consequence of a lawful
act, but this species of manslaughter in consequence of an
unlawful one. As if two persons play at sword and
5. Id., 211. or by brutal violence. Id., 81; East's
6. In self-defence. P. C. 233-235, 252.
Mere words do not, at common law, 7. Wash. Crim. Law, 81. The kill-
constitute sufficient provocation. ing by the husband of an adulterer
Wash. Crim. Law, 80. See Norman discovered in the act with his wife
v. State, 26 Tex. App. 221. Nor would is manslaughter. Clark's Crim. Law,
it be manslaughter if the death were 202; Shafflin v. People, 62 N. Y. 229;
caused by the use of a deadly weapon Galvin v. State, 6 Coldw. (Tenn.)
283.
CHAP. XIV.] OF HOMICIDE. 707
buckler, unless by the king's command, and one of them
kills the other, this is manslaughter, because the original
act was unlawful; but it is not murder, for the one had no
intent to do the other any personal mischief. So where a
person does an act lawful in itself, but in an unlawful
manner, and without due caution and circumspection, as
when a workman flings down a stone or piece of timber into
the street and kills a man, this may be either misadventure,
manslaughter, or murder, according to the circumstances
under which the original act was done. If it were in a
country village where few passengers are, and he calls out
to all people to have a care, it is misadventure only; but if
it were in London, or other populous town where people
are continually passing, it is manslaughter, though he gives
loud warning, and murder if he knows of their passing and
gives no warning at all, for then it is malice against all
mankind. And in general, when an involuntary killing
happens in consequence of an unlawful act, it will be either
murder or manslaughter, according to the nature of the act
which occasioned it. If it be in prosecution of a felonious
intent, or in its consequences naturally tended to bloodshed,
it will be murder; but if no more was intended than a mere
civil trespass, it will only amount to manslaughter. 8 [193]
Next, as to the punishment of this degree of homicide, the
crime of manslaughter amounts to felony, but within the
benefit of clergy; and the offender shall be burnt in the
hand and forfeit all his goods and chattels.
2. Murder is thus defined by Sir Edward Coke: " When
a person of sound memory and discretion unlawfully killeth
any reasonable creature in being and under the king's peace
with malice aforethought, either express or implied." [195]
First, it must be committed by a person of sound memory
and discretion, for lunatics or infants, as was formerly
observed, are incapable of committing any crime, unless in
such cases where they show a consciousness of doing wrong,
and of course a discretion or discernment between good and
evil. 9
8. Clark's Crim. Law, 204 and 9. See ante, note,
cases cited.
708 OF HOMICIDE. [Boox IV.
Next, it happens when a person of such sound discretion
unlawfully killeth. The unlawfulness arises from the kill-
ing without warrant or excuse, and there must also be an
actual killing to constitute murder; for a bare assault with
intent to kill is only a great^ misdemeanor, though formerly
it was held to be murder. [196] The killing may be by
poisoning, striking, starving, drowning, and a thousand
other forms of death by which human nature may be over-
come. And if a person be indicted for one species of killing,
as by poisoning, he cannot be convicted by evidence of a
totally different species of death, as by sJiooting with a pistol,
or starring. But where they only differ in circumstances,
as if a wound be alleged to be given with a sword, and it
proves to have arisen from a staff, an axe, or a hatchet, this
difference is immaterial. 1 There was also by the ancient
common law one species of killing held to be murder, which
may be dubious at this day, as there hath not been an in-
stance wherein it has been held to be murder for many ages
past, I mean by bearing false witness against another
with an express premeditated design to take away his life
so as the innocent person be condemned and executed. 2
There is no doubt but this is equally murder in foro con-
sclcntiuc 3 as killing with a sword, though the modern law
(to avoid the danger of deterring witnesses from giving
evidence upon capital prosecutions, if it must be at the peril
of their own lives) has not yet punished it as such. [197]
If a man, however, does such an act of which the probable
consequence may be, and eventually is, death, such killing
may be murder, although no stroke be struck by himself,
and no killing be primarily intended, as was the case of
the unnatural son who exposed his sick father to the air
against his will, by reason whereof he died, of the harlot
who laid her child under leaves in an orchard where a kite
struck it .and killed it, and of the parish officers who shifted
1. See Whart. Crim. Law. 1059; ted by perjury and subornation of
Archibald's Crim. Plead. (10th Ed.), perjury.
406. 407. 3. In the forum of conscience.
2. Under the Illinois statute. Crim.
Code, 226, murder May be commit-
CHAP. XIV.] OF HOMICIDE. TOO
a child from parish to parish till it died for want of care
and sustenance. So too if a man hath a beast that is used
to do mischief, and he knowing it suffers it to go abroad
and it kills a man, even this is manslaughter in the owner;
but if he had purposely turned it loose, though barely to
frighten people and make what it called sport, it is with us
(as in the Jewish law) as much murder as if he had incited
a bear or dog to worry them. If a physician or surgeon
gives his patient a potion or plaster to cure him, which,
contrary to expectation, kills him, this is neither murder
nor manslaughter, but misadventure, and he shall not be
punished criminally, however liable he might formerly have
been to a civil action for neglect or ignorance. But it hath
been holden that if it be not a regular physician or surgeon
who administers the medicine or performs the operation, it
is manslaughter at the least. Yet Sir Matthew Hale very
justly questions the law of this determination. 4 In order
also to make the killing murder, it is requisite that the
party die within a year and a day after the stroke received
or cause of death administered, in the computation of which
the whole day upon which the hurt was done shall be reck-
oned the first. 5
Further, the person killed must be " a reasonable crea-
ture in being and under the king's peace " at the time of
the killing. Therefore to kill an alien, a Jew, or an outlaw,
who are all under the king's peace and protection, is as
much murder as to kill the most regular-born Englishman,
except he be an alien enemy in time of war. [198] To kill
a child in its mother's womb is now no murder But a great
misprision; but if the child be born alive, 6 and dieth by
4. See this subject fully considered is the result of reckless or foolhardy
and the cases cited in Swell's Med. presumption judged by the standard
Juris. (2d Ed.), 296-302. In Com. of what would be reckless in a man
v. Pierce, 138 Mass. 163, Holmes, J., of ordinary prudence under the cir-
delivering the unanimous opinion of cumstance.
the court, it was held that to consti- 5. State v. Mayfield, 66 Mo. 125;
tute manslaughter when there is no People v. Wallace, 9 Cal. 30; Com. v.
evil intent, it is not necessary that Parker, 2 Pick. 558.
the killing should be the result of 6. In order to constitute murder
an unlawful act; it is sufficient if it the child must have been completely
T10 OF HOMICIDE. [BOOK IV.
reason of the potion or bruises it received in the womb, it
seems by the better opinion to be murder in such as admin-
istered or gave them.
Lastly, the killing must be committed with malice afore-
thought, to make it the crime of murder. This is the grand
criterion which now distinguishes murder from other kill-
ing. And this malice prepense, ma-lit ia praecogitata, is not
so properly spite or malevolence to the deceased in particular,
as any evil design in general, the dictate of a wicked, de-
praved, and malignant heart; nn disposition a faire un male
chose. 7 And it may be either express or implied in law.
Express malice is when one, with a sedate, deliberate mind
and formed design doth kill another; which formed design
is evidenced by external circumstances discovering that in-
ward intention, as laying in wait, antecedent menaces,
former grudges, and concerted schemes to do him some
bodily harm. [199] This takes in the case of deliberate
duelling, 8 where both parties meet avowedly with an intent
to murder; and therefore the law has justly fixed the crime
and punishment of murder on them and on their seconds
also. Also, if even upon a sudden provocation one beats
another in a cruel and unusual manner so that he dies,
though he did not intend his death, yet he is guilty of mur-
der by express malice; that is, by an express evil design,
the genuine sense of malitia. As when a park-keeper tied
a boy that was stealing wood to a horse 's tail, and dragged
him along the park; when a master corrected his servant
with an iron bar; and a schoolmaster stamped on his
scholar's belly; so that each of the sufferers died, these were
justly held to be murders, because, the correction being
excessive, and such as could not proceed but from a bad
born. It is not necessary, however, of legislation probably in all the
that the umbilical cord should have states, as has also that of criminal
been divided. Ewell's Med. Jur. (2d abortion, etc. Consult the local stat-
Ed.), 120. See, however, State v. utes.
Winthrop, 2 Am. Grim. Cases, 274, 7. A disposition to do a bad thing,
s. c. 43 Iowa, 519; Sheppard v. State, 8. So by statute in Illinois, Iowa,
17 Tex. App. 74. The crime of in- Massachusetts, Michigan, New York,
fanticide has been made the subject and possibly other states.
CHAP. XIV.] . OF HOMICIDE. 711
heart, it was equivalent to a deliberate act of slaughter.
Neither shall he be guilty of a less crime who kills another
in consequence of such a wilful act as shows him to be an
enemy to all mankind in general: as going deliberately,
and with an intent to do mischief, upon a horse used to
strike, or coolly discharging a gun among -a multitude of
people. [200] So if a man resolves to kill the next man he
meets, and does kill him, it is murder, although he knew
him not; for this is universal malice. And if two or more
ome together to do an unlawful act against the king's
peace, of which the probable consequence might be blood-
shed: as to beat a man, to commit a riot, or to rob a park,
and one of them kills a man, it is murder in them all,
hecause of the unlawful act, the malitia praecogitata, 9 or
evil intended beforehand.
Also, in many cases where no malice is expressed the law
will imply it: as where a man wilfully poisons another; in
such a deliberate act the law presumes malice, though no
particular enmity can be proved. And if a man kills
another suddenly, without any, or without a considerable
provocation, the law implies malice; for no person, unless
of an abandoned heart, would be guilty of such an act upon
a slight or no apparent cause. No affront, by words or
gestures only, is a sufficient provocation so as to excuse or
extenuate such acts of violence as manifestly endanger the
life of another. But if the person so provoked had un-
fortunately killed the other by beating him in such a man-
ner as showed only an intent to chastise and not to kill him,
the law so far considers the provocation of contumelious
behavior as to adjudge it only manslaughter, and not mur-
der. In like manner, if one kills an officer of justice either
civil or criminal, in the execution of his duty, or any of his
Assistants endeavoring to conserve the peace, or any private
person endeavoring to suppress an affray or apprehend a
felon, knowing his authority or the intention with which he
interposes, the law will imply malice, and the killer shall
9. Malice aforethought.
712 OF HOMICIDE. [BOOK IV.
be guilty of murder. And if one intends to do another
felony, and undesignedly kills a man, this is also murder.
[201] Thus if one shoots at A and misses him, but kills B r
this is murder, because of the previous felonious intent,
which the law transfers from one to the other. The same
is the case where one lays poison for A, and B, against
whom the prisoner had no malicious intent, takes it, and it
kills him: this is likewise murder. So also if one gives a
woman with child a medicine to procure abortion, and it
operates so violently as to kill the woman, this is murder
in the person who gave it. We may take it for a general
rule that all homicide is malicious, and of course amounts
to murder, unless where justified by the command or per-
mission of the law; excused on the account of accident or
self-preservation; or alleviated into manslaughter by being
either the involuntary consequence of some act not strictly
lawful, or (if voluntary) occasioned by some sudden and
sufficiently violent provocation. And all these circum-
stances of justification, excuse, or alleviation, it is incumb-
ent upon the prisoner to make out to the satisfaction of the
court and jury, the latter of whom are to decide whether the
circumstances alleged are proved to have actually existed,,
the former, how far they extend to take away or mitigate
guilt; for all homicide is presumed to be malicious until the
contrary appeareth upon evidence. 1
The punishment of murder, and that of manslaughter, 2 was formerly
one and the same, both having the benefit of clergy; so that none but
1. See an excellent discussion of 2. Regulated entirely by statute,
the term " malice " in Clark's Crim. In some of the states murder is-
Law (2d Ed.), 187-196, where the divided into degrees according to its
rases are collected and considered. It enormity, though there are none 'at
is denned by Mr. Washburn as " the the common law. See Wash. Crim.
wilful doing of an unlawful act." Law (3d Ed.), 74. In others it re-
Wash. Crim. Law (3d Ed.), 24, citing mains substantially as at common.
Com. T. Bormer, 9 Met. 410. See, law, many of the statutes in denning
also, 1 Bish. Crim. Law, 429; Com. it adopting in substance the common
v. Godwin, 122 Mass. 19: Spies v. law definition. Consult the local stat-
People, 122 111. 1, 174. The discus- utes.
gion of our author in the text seems
beyond criticism.
CHAP. XIV.] OF HOMICIDE. T13
unlearned persons, who least knew the guilt of it, were put to death
for this enormous crime. But now by several statutes the benefit of
clergy is taken away from murderers through malice prepense, their abet-
tors, procurers, and counselors.
Petit treason, according to the statute 25 Edw. III. c. 2, may happen
three ways: by a servant killing his master, a wife her husband, or an
ecclesiastical person (either secular or regular) his superior, to whom
he owes faith and obedience. [203] [Abolished by statute.]
714 OFFENCES AGAINST [Boox IV.
CHAPTER XV.
OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.
Of these offences some are felonies, and in their nature
capital; others are simple misdemeanors, and punishable
with a lighter animadversion. [205] Of the felonies, the
first is that of mayhem.
I. Mayhem, mayhemium, is properly defined to be the
violently depriving another of the use of such of his mem-
bers as may render him the less able in fighting, either to-
defend himself, or to annoy his adversary. And therefore
the cutting off or disabling or weakening a man's hand or
finger, or striking out his eye or foretooth, or depriving
him of those parts, the loss of which in all animals abates
their courage, are held to be mayhems. But the cutting off
his ear or nose, or the like, are not held to be mayhems at
common law, because they do not weaken, but only disfigure
him. 1 [206]
By the statute of 22 & 23 Car. II. c. 1, called the Coventry
act, being occasioned by an assault on Sir John Coventry
in the street, and slitting his nose in revenge (as was sup-
posed) for some obnoxious words utted by him in parlia-
ment, it is enacted that if any person shall of malice afore-
thought and by lying in wait unlawfully cut out or disable
the tongue, put out an eye, slit the nose, cut off a nose or
lip, or cut off or disable any limb or member of any other
person, with intent to maim or disfigure him, such person,
his counselors, aiders, and abettors, shall be guilty of felony
without benefit of clergy. [207]
II. The second offence, more immediately affecting the personal se-
curity of individuals, relates to the female part of his majesty's subjects,
being that of their forcible abduction and marriage, which is vulgarly
called stealing an heiress. [208] [A statutory felony, 3 Hen. VII. c. 2.]
III. A third offence against the female part also of his
majesty's subjects, but attended with greater aggravation
1. Clark's Crim. Law, 213 ; 1 East. injuries merely disfiguring. Clark's
P. C. 393. By statute it has in most Crim. Law, 213.
of the states been extended to include
CHAP. XV.] THE PERSONS OF INDIVIDUALS. < 715
than that of forcible marriage, is the crime of rape, rnptus
mulierum, or the carnal knowledge of a woman forcibly and
against her will. 1 [210]
At present there is no limitation fixed [as to the time
when complaint must be made], for as it is usually now
punished by indictment at the suit of the king, the maxim
of law takes place that nullum tempus occurrit regi; 2 but the
jury will rarely give credit to a stale complaint. [211]
By statute 18 Eliz. c. 7, forcible rape is made felony
without benefit of clergy, as is also the abominable wicked-
ness of carnally knowing and abusing any woman child
under the age of ten years, in which case the consent or
non-consent is immaterial, as by reason of her tender years
she is incapable of judgment and discretion. 3 [212]
A male infant under the age of fourteen years is presumed
by law incapable to commit a rape, and therefore it seems
cannot be found guilty of it. 4
But the law of England holds it to be felony to force even
a concubine or harlot, because the woman may have for-
saken that unlawful course of life. 5 [213]
With regard to the competency and credibility of wit-
nesses,
First, the party ravished may give evidence upon oath,
and is in law a competent witness ; but the credibility of her
testimony, and how far forth she is to be believed, must be
left to the jury upon the circumstances of fact that concur
in that testimony. For instance, if the witness be of good
1. 2 Bish. Crim. Law (7th Ed.), a husband in person upon his wife.
1113; Wash. Crim. Law (3d Ed.), McClain's Crim. Law, 449; though
93. he may be guilty of rape upon her
2. Xo time bars the king. by aiding another in the commission
3. Made the subject of statutes of the act. People v. Chapman, 62
probably in 'most of the states. Mich. 280; State v. Dowell, 106 N. C.
4. Some American cases hold that 722. See, generally, on this subject,
a boy under fourteen years of age is Clark's Crim. Law (2d Ed.), 215-
only prim a facie incapable. See the 224.
cases collected in 2 Bish. Crim. Law 5. Clark's Crim. Law, 222; Carney
(7th Ed.), 1117 and notes; Me- v. State, 118 Ind. 525; People v.
Clain Crim. Law, 449; Ewell's M'ed. Crego, 70 Mich. 319.
Jur. (2d Ed.), 142.
This crime cannot be committed by
TIG OFFENCES AGAINST [BOOK IV.
fame; if she presently discovered the offence and made
search for the offender ; if the party accused fled for it,
these and the like are concurring circumstances which give
greater probability to her evidence. But, on the other side,
if she be of evil fame 6 and stand unsupported by others ; if
she concealed the injury for any considerable time after
she had opportunity to complain; if the place where the
fact was alleged to be committed was where it was possible
she might have been heard, and she made no outcry,
these and the like circumstances carry a strong but not
conclusive presumption that her testimony is false or
feigned. [214]
Moreover, if the rape be charged to be committed on an
infant under twelve years of age, she may still lie a com-
petent witness, if she hath sense and understanding to know
the nature and obligations of an oath, or even to be sensible
of the wickedness of telling a deliberate lie. But it is now
settled [Brazier's case before the twelve judges, P. 19 Gr.
III.] that no hearsay evidence can be given of the declara-
tion of a child who hath not capacity to be sworn, nor can
such child be examined in court without oath, and that
there is no determinate age at which the oath of a child
ought either to be admitted or rejected.
IV. What has been here observed, especially with regard
to the manner of proof, w r hich ought to be more clear in
proportion as the crime is the more detestable, may be ap-
plied to another offence of a still deeper malignity, the
infamous crime against nature, committed either with man
or beast. 7 [215], a crime which ought to be strictly and
impartially proved, and then as strictly and impartially
punished. But it is an offence of so dark a nature, so easily
charged, and the negative so difficult to be proved, that the
accusation should be clearly made out; for, if false, it de-
serves a punishment inferior only to that of the crime itself.
These are all the felonious offences more immediately
against the personal security of the subject. [216] The
6. Clark's Crim. Law, 222 and cases and considered in Clark's Crim. Law
cited. (2d Ed.), 365-7. See, also, Ewell'a
7. See Sodomy, Bestiality and Ting- Med. Jur. (2d Ed.), 159-161.
gery denned and the cases collected
CHAP. XV.] THE PERSO> T S OF INDIVIDUALS. 717
inferior offences or misdemeanors that fall under this head
are assaults, batteries, wounding, false imprisonment, and
kidnapping.
V. VI. VII. With regard to the nature of the three first
of these offences in general, I have nothing further to add
to what has already been observed in the preceding book
of these Commentaries, when we considered them as private
wrongs or civil injuries. 8 But, taken in a public light as a
breach of the king's peace, they are also indictable and
punishable with fines and imprisonment; or with other igno-
minious corporal penalties where they are committed with.
any very atrocious design [217], as in case of an assault
with an intent to murder, 9 or with an intent to commit
either of the crimes last spoken of.
VIII. The two remaining crimes and offences against the
persons of his majesty's subjects, are infringements of their
natural liberty, concerning the first of which, false im-
prisonment, its nature and incidents, I must content myself
with referring the student to what was observed in the
preceding book, when we considered it as a mere civil in-
jury. 1 [218] [Some aggravated species of false imprison-
ment, such as sending a subject a prisoner into parts beyond
the seas, are made the object of special statutes.] Inferior
degrees of the offence of false imprisonment are punishable
by indictment (like assaults and batteries), and the delin-
quent may be fined and imprisoned. And indeed there can
be no doubt but that all kinds of crimes of a public nature,
all disturbances of the peace, all oppressions, and other
misdemeanors whatsoever of a notoriously evil example,
may be indicted at the suit of the king.
IX. The other remaining offence, that of kidnapping,
being the forcible abduction or stealing away of a man,
woman, or child from their own country, and sending them
into another, 2 by the common law of England was punished
with fine, imprisonment, and pillory [219] [It is also the
subject of punishment by statute.]
8. See ante. 1. See ante.
9. This lias in this country often 2. Clark's Crim. Law, 248. In
bren made a substantive offence. See many of the states it is made a stat-
the statutes. utory crime. Id., 249.
718 OFFENCES AGAINST [BOOK IV.
CHAPTER XVI.
OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS.
The only two offences that more immediately affect the
habitations of individuals or private subjects are those of
arson and burglary. [220]
I. Arson, ab ardendo, 1 is the malicious and wilful burn-
ing the house or outhouse of another man. This is an
offence of very great malignity.
We will inquire, first, what is such a house as may be the
subject of this offence; next, wherein the offence itself con-
sists, or what amounts to a burning of such house; and
lastly, how the offence is punished. [221]
1. Not only the bare dwelling-house, but all out-houses
that are parcel thereof, though not contiguous thereto nor
under the same roof, as barns and stables, may be the sub-
ject of arson. 1 * And this by the common law, which also
accounted it felony to burn a single barn in the field, if
filled with hay or corn, though not parcel of the dwelling-
house. The burning of a stack of corn was anciently like-
wise accounted arson. The offence of arson (strictly so
called) may be committed by wilfully setting fire to one's
own house, provided one's neighbor's house is thereby also
burned; but if no mischief is done but to one's own, it does
not amount to felony, 2 though the fire was kindled with
intent to burn another's. For by the common law no in-
tention to commit a felony amounts to the same crime,
though it does in some cases, by particular statutes. How-
ever, such wilful firing one 's own house, in a toicn, is a high
misdemeanor, and punishable by fine, imprisonment, pillory,
and perpetual sureties for the good behavior. And if a
landlord or reversioner sets fire to his own house, of which
1. From burning. in<j one's own house with intent to
la. That is they must be within the defraud the insurer thereof is made
curtilage. See, generally. Clark's a felony by statute in some states.
Crim. Law, 256, 257. See Wash. Crim. Law (3d Ed.), 27
2. Clark's Crira. Law, 257. Burn- and note.
CHAP. XVI.] THE HABITATIONS OF INDIVIDUALS. 710
another is in possession under a lease from himself, or from
those whose estate he hath, it shall be accounted arson; for
during the lease the house is the property of the tenant.
2. As to what shall be said to be a burning, so as to
amount to arson, a bare intent or attempt to do it by actu-
ally setting fire to a house, unless it absolutely burns, does
not fall within the description of incendit et combussit, 3
which were words necessary, in the days of law-Latin, to
all indictments of this sort. [222] But the burning and
consuming of any part is sufficient, though the fire be after-
wards extinguished. 4 Also it must be a malicious burning;
otherwise it is only a trespass, and therefore no negligence
or mischance amounts to it. For which reason, though an
unqualified person, by shooting with a gun, happens to set
fire to the thatch of a house, this Sir Matthew Hale deter-
mines not to be felony, contrary to the opinion of former
writers.
3. The statutes 8 Hen. VI. c. 6, made the wilful burning of houses,
under some special circumstances therein mentioned, amount to the crime
of high treason; but it was again reduced to felony by the general acts
of Edward VI. and Queen Mary; and now the punishment of all capital
felonies is uniform, namely, by hanging.
II. The definition of a burglar, as given us by Sir Edward
Coke, is "he that by night breaketh and entereth into a
mansion-house [of another], with intent to commit a
felony." 5 [224] In this definition there are four things to
be considered : the time, the place, the manner, and the intent.
1. The time must be by night, and not by day, for in the
daytime there is no burglary. We have seen, in the case of
justifiable homicide, how much more heinous all laws made
an attack by night rather than by day, allowing the party
attacked by night to kill the assailant with impunity. As
to what is reckoned night and what day for this purpose,
3. He has burned and consumed. 346; Com. v. Tucker, 110 Mass. 403;
4. Mere charring will suffice; but Macy v. State, 24 Ark. 44; State r.
not a mere scorching and blackening Spiegel, 111 Iowa, 701.
by the smoke. Clark's Crim. Law, 5. 3 Inst. ch. 3.
255; Woolsey v.' State, 30 Tex. App.
720 OFFENCES AGAINST [BooK IV.
the better opinion seems to be that if there be daylight or
crepusculum enough, begun or left, to discern a man's face
withal, it is no burglary. But this does not extend to moon-
light; for then many midnight burglaries would go un-
punished. 6
2. As to the place. It must be, according to Sir Edward
Coke's definition, in a mansion-house: and therefore to ac-
count for the reason why breaking open a church is burg-
lary, as it undoubtedly is, he quaintly observes that it is
domus mansionalis Dei. 1 But it does not seem absolutely
necessary that it should in all cases be a mansion-house; for
it may also be committed by breaking the gates or walls of a
town in the night. And we may safely conclude that the
requisite of its being domus mansionaUs* is only in the burg-
lary of a private house, which is the most frequent, and in
which it is indispensably necessary to form its guilt that
it must be in a mansion or dwelling-house. [225] For no
distant barn, warehouse, or the like is under the same privi-
leges, nor looked upon as a man's castle of defence. Nor
is a breaking open of houses wherein no man resides, and
which, therefore, for the time being are not mansion-houses,
attended with the same circumstances of midnight terror.
A house, however, wherein a man sometimes resides, and
which the owner hath only left for a short season, animo
revertendi, is the object of burglary, though no one be in it
at the time of the fact committed. And if the barn, stable,
or warehouse be parcel of the mansion-house and within the
same common fence, though not under the same roof or con-
tiguous, a burglary may be committed therein, for the
capital house protects and privileges all its branches and
6. Clark's Crim. Law, 267; Wash. the curtilege. Clark's Crim. Law,
Crim. Law., 34. In some states "night- 2G6. " Dwelling-house " has the same
time" is defined by statutes and in signification as in arson. Id.. 267,
others the word is omitted from the ante. The meaning of the term
definition. Clark's Crim. Law, 267; '' house" within which burglary may
Gen. Stat. Mass., ch. 172, 13; Ses- be committed has been changed by
gion Laws 111. 1877, p. 85. statute in many states to include
7. The dwelling-house of God. warehouses, shops, railroad cars, etc.
8. Mansion-house. " Dwelling- See Clark's Crim. Law, 269.
house " includes an outhouse within
CHAP. XVI.] THE HABITATIONS OF INDIVIDUALS. 721
appurtenances, if within the curtilage or homcstall. A
chamber in a college or an inn of court, where each inhabit-
ant hath a distinct property, is, to all other purposes as well
as this, the mansion-house of the owner. So also is a room
or lodging in any private house, the mansion for the time
being of the lodger, if the owner doth not himself dwell in
the house, or if he and the lodger enter by different outward
doors. But if the owner himself lies in the house, and hath
but one outward door, at which he and his lodgers enter,
such lodgers seem only to be inmates, and all their apart-
ments to be parcel of the one dwelling-house of the owner.
Thus, too, the house of a corporation, inhabited in separate
apartments by the officers of the body corporate, is the
mansion-house of the corporation, and not of the respective
officers. But if I hire a shop, parcel or another man's
house, and work or trade in it, but never lie there, it is no
dwelling-house, nor can burglary be committed therein; for
by the lease it is severed from the rest of the house, and
therefore is not the dwelling-house of him who occupies the
other part, neither can I be said to dwell therein when I
never lie there. [226] Neither can burglary be committed
in a tent or booth erected in a market or fair, though the
owner may lodge therein; for the law regards thus highly
nothing but permanent edifices, a house or church, the wall
or gate of a town.
3. As to the manner of committing burglary, there must
be both a breaking and an entry to complete it. But they
need not be both done at once; for if a hole be broken one
night, and the same breakers enter the next night through
the same, they are burglars. There must in general be an
actual breaking, not a mere legal clauswm frcyit* by leaping
over invisible ideal boundaries, which may constitute a
civil trespass), but a substantial and forcible irruption.
As at least by breaking or taking out the glass of, or
otherwise opening a window; picking a lock or opening it
with a key; nay, by lifting up the latch of a door or un-
loosing any other fastening which the owner has provided. 1
9. He broke the close. 1. Clark's Crini. Law, 2G2.
46
722 OFFENCES AGAINST [BooK IV.
But if a person leaves his doors or windows open, it is his
own folly and negligence, and if a man enters therein it is
no burgulary, 2 yet if he afterwards unlocks an inner or
chamber door, it is so. But to come down a chimney is held
a burglarious entry, for that is as much closed as the nature
of things will permit. So also to knock at the door, and
upon opening it to rush in, with a felonious intent ; or under
pretence of taking lodgings to fall upon the landlord and
rob him; or to procure a constable to gain admittance in
order to search for traitors, and then to bind the constable
and rob the house, all these entries have been adjudged
burglarious, though there was- no actual breaking; for the
law will not suffer itself to be trifled with by such evasions,
especially under the cloak of legal process. 3 [227] And so
if a servant opens and enters his master's chamber-door
with a felonious design, or if any other person lodging in
the same house or in a public inn opens and enters another 's
door with such evil intent, it is burglary. Nay, if the ser-
vant conspires with a robber, and lets him into the house
by night, this is burglary in both; for the servant is doing
an unlawful act, and the opportunity afforded him of doing
it with greater ease rather aggravates than extenuates the
guilt. As for the entry, any the least degree of it, with any
part of the body, or with an instrument held in the hands,
is sufficient; as to step over the threshold, to put a hand or
a hook in at a window to draw out goods, or a pistol to
demand one's money, are all of them burglarious entries. 4
The entry may be before the breaking as well as after; for
by statute 12 Anne, c. 7, if a person enters into the dwelling-
house of another without breaking in, either by day or by
night, with intent to commit felony, or being in such a house
shall commit any felony, and shall in the night break out
of the same, this is declared to be burglary; there having
before been di&erent opinions concerning it: Lord Bacon
holding the affirmative, and Sir Matthew Hale the negative.
4. As to the intent, it is clear that such breaking and
entry must be with a felonious intent, otherwise it is only a
2. Id. 4. Id., 265.
3. Id.. 264.
CHAP. XVI.] THE HABITATIONS OF INDIVIDUALS. 723
trespass. And it is the same whether such intention bo
actually carried into execution or only demonstrated by
some attempt or overt act, of which the jury is to judge.
And therefore such a breach and entry of a house as has
been before described, by night, with intent to commit a
robbery, a murder, a rape, or any other felony, is burglary,
whether the thing be actually perpetrated or not. 5 [228]
Nor does it make any difference whether the offence were
felony at common law, or only created so by statute, sinco
that statute which makes an offence felony gives it inci-
dentally all the properties of a felony at common law.
Burglary is a felony at common law, but within the benefit
of clergy.
5. Clark's Crim. Law, 268.
OFFENCES AGAINST [Boox IV.
CHAPTER XVII.
OF OFFICERS AGAINST PRIVATE PROPERTY.
I. Larceny, or theft, by contraction for latrociny, latro-
cimum, is distinguished by the law into two sorts: the one
called simple larceny, or plain theft, unaccompanied with any
other atrocious circumstance, and mixed or compound
larceny, which also includes in it the aggravation of a taking
from one's house or person. [229]
And first of simple larceny, which, when it is the stealing
of goods above the 'value of twelvepence, is called grand
larceny; 1 when of goods to that value or under, is petit
larceny, offences which are considerably distinguished in
their .punishment, but not otherwise.
Simple larceny is " the felonious taking 2 and carrying
away of the personal goods of another. ' '
1. It must be a taking. [230] This implies the consent
of tke owner to be wanting. Therefore no delivery of
the goods from the owner to the offender upon trust can
ground a larceny. As if A lends B a horse and he rides
away with him, or if I send goods by a carrier and
he carries them away, these are no larcenies. But if the
carrier opens a bale or pack of goods, or pierces a vessel of
wine and takes away part thereof, or if he carries it to the
place appointed and afterwards takes away the whole,
these are larcenies; for here the animus furandi 3 is mani-
fest, since in the first case he had otherwise no inducement
to open the goods, and in the second the trust was deter-
mined, the delivery having taken its effect. But bare non-
delivery shall not of course be intended to arise from a
felonious design, since that may happen from a variety of
other accidents. Neither by the common law was it larceny
in any servant to run away with the goods committed to
1. This distinction between grand 2. See several definitions collected
and petit larceny has been abolished in Clark's Crim. Law (2d Ed.), 271,
by statute in some of the states and note; Wash. Crim. Law (3d Ed.), 56.
retained in others. 3. Intent to steal.
CHAP. XVIL] PRIVATE PROPERTY. 725
him to keep, but only a breach of civil trust. But if-he had
not the possession, but only the care and oversight of the
goods, as the butler of the plate, the shepherd of the sheep,
and the like, the embezzling of them is felony at common
law. [231] So if a guest robs his inn or tavern of a piece
of plate, it is larceny; for he hath not the possession de-
livered to him, but merely the use. Under some circum-
stances a man may be guilty of felony in taking his own
goods: as if he steals them from a pawnbroker, or any one
to whom he hath delivered and entrusted them, with intent
to charge such bailee with the value; or if he robs his own
messenger on the road, with an intent to charge the hundred
with the loss according to the statute of Winchester.
2. There must not only be a taking, but a carrying away. 4
A bare removal from the place in which he found the goods,
though the thief does not quite make off with them, is a suf-
ficient asportation, or carrying away. As if a man be lead-
ing another's horse out of a close, and be apprehended in
the fact; or if a guest, stealing goods out of an inn, has
removed them from his chamber downstairs, these have
been adjudged sufficient carryings away to constitute a lar-
ceny. Or if a thief, intending to steal plate, takes it out
of a chest in which it was and lays it down upon the floor,
but is surprised before he can make his escape with it,
this is larceny.
3. This taking and carrying away must also be felonious,
that is, done animo furandi? or, as the civil law expresses it,
lucri causa. [232] This requisite, besides excusing those
4. Every larceny at common law but if he breaks open the box or pack-
includes a trespass and an asporta- age and wrongfully removes a part
tion. Clark's Crim. Law, 279. he is guilty of larceny at common
A bailee lawfully in possession of law. Clark's Crim. Law, 282; Com.
a thing who wrongfully appropriates v. Brown, 4 Mass. 530; Nichols v.
it to his own use does not commit People, 17 N. Y. 114.
larceny, although he may be guilty 5. With intent to steal,
of embezzlement under the statutes. 6. For the sake of gain.
Id., 281. A carrier of goods who un- The felonious quality consists in
lawfully appropriates a box or pack- the intention of the prisoner to de-
age and contents entrusted to him is fraud the owner and to apply the
not guilty of common law larceny; thing stolen to his own use. And it
726 OFFENCES AGAINST [BOOK IV.
who labor under incapacities of mind or will, indemnifies
also mere trespassers and other petty offenders. As if a
servant takes his master's horse without his knowledge
and brings him home again; if a neighbor takes another's
plough that is left in the field and uses it upon his own land
and then returns it; if under color of arrear of rent, where
none is due, I distrain another's cattle or seize them, all
these are misdmeanors and trespasses, but no felonies.
4. This felonious taking and carrying away must be of
the personal goods of another, 7 for if they are things real,
or savor of the realty, larceny at the common law cannot
be committed of them. Lands, tenements, and heredita-
ments (either corporeal or incorporeal) cannot in their na-
ture be taken and carried away. And of things likewise
that adhere to the freehold, as corn, grass, trees, and the
like, or lead upon a house, no larceny could be committed
by the rules of the common law; but the severance of them
was, and in many things is still, merely a trespass which
depended on a subtilty in the legal notions of our ancestors.
These things were parcel of the real estate, and, therefore,
while they continued so, could not by any possibility be the
subject of theft, being absolutely fixed and immovable.
And if they were severed by violence so as to be changed
into movables, and at the same time by one and the same
continued act carried off by the person who severed them,
they could never be said to be taken from the proprietor,
in this their newly acquired state of mobility (which is
essential to the nature of larceny), being never, as such,
in the actual or constructive possession of any one, but of
him who committed the trespass. [233] He could not in
is not necessary that the taking should nient seems to be the better opinion,
be done lucri causa; taking with an See the cases collected in Clark's
intent to destroy will be sufficient to Crim. Law (3d Ed.), 300.
constitute the offence if done to serve 7. Animals ferae naturae, fish in a
the prisoner or another person, though river, bills, notes and other choses in
not in a pecuniary way. Wash. Criin. action; ore before it has been mined;
Law (3d Ed.), 57. Upon the ques- ice before it has been cut, etc., are
tion whether the taking must be lucri not the subject of larceny at common
causa, however, the authorities are law. Clark's Crim. Law, 272.
not agreed, though the above state-
CHAP. XVII.] PRIVATE PROPERTY. 727
strictness be said to have taken what at that time were the
personal goods of another, since the very act of taking was
what turned them into personal goods. But if the thief
severs them at one time, whereby the trespass is com-
pleted, and they are converted into personal chattels, in
the constructive possession of him on whose soil they are
left or laid, and come again at another time, when they are
so turned into personalty, and takes them away, it is lar-
ceny, and so it is if the owner or any one else has severed
them. 8 Stealing ore out of mines is also no larceny, upon
the same principle of adherence to the freehold. [234]
Upon nearly the same principle the stealing of writings re-
lating to a real estate is no felony, but a trespass, because
they concern the land, or savor of the realty, and are con-
sidered as part of it by the law, so that they descend to the
heir together w T ith the land which they concern. 9
Bonds, bills, and notes, which concern mere choses in
action, were also at the common law held not to be such
goods whereof larceny might be committed, being of no
intrinsic value, and not importing any property in posses-
sion of the person from whom they are taken. 1 Larceny
also could not at common law be committed of treasure-
trove or wreck till seized by the king or him who hath the
franchise, for till such seizure no one hath a determinate
property therein. [235]
Larceny also cannot be committed of such animals in
which there is no property either absolute or qualified, as
of beasts that are ferae naturae and unreclaimed, such as
deer, hares, and conies, in a forest, chase, or warren; fish
in an open river or pond; or wild fowls at their natural
liberty. But if they are reclaimed or confined, and may
serve for food, it is otherwise even at common law; for of
deer so inclosed .in a park that they may be taken at
pleasure, fish in a trunk, and pheasants or partridges in a
mew, larceny may be committed. But of all valuable do-
8. The felonious taking and carry- 9. See, generally, Clark's Crim.
ing away of'various kinds of fixtures, Law, 272-277.
trees, fruit, vegetables, etc., has very 1. Made larceny by statute in some
generally been made larceny by stat- states,
ute
728 OFFEXCES AGAINST [BOOK IV.
mestic animals, as horses and other beasts of draught, and
of all animals domitae naturae, 2 which serve for food, as
neat or other cattle, swine, poultry, and the like, and of
their fruit or produce taken from them while living, as milk
or wool, larceny may be committed; and also of the flesh of
such as are either domitae or ferae naturae when killed.
[236] As to those animals which do not serve for food, and
which therefore the law holds to have no intrinsic value,
as dogs of all sorts, 3 and other creatures kept for whim and
pleasure, though a man may have a base property therein
and maintain a civil action for the loss of them, yet they
are not of such estimation as that the crime of stealing
them amounts to larceny.
Notwithstanding, however, that no larceny can be com-
mitted unless there be some property in the thing taken, and
an owner, yet if the owner be unknown, provided there be
a property, it is larceny to steal it, and an indictment will
lie for the goods of a person unknown. This is the case of
stealing a shroud out of a grave, which is the property of
those, whoever they were, that buried the deceased; but
stealing the corpse itself, which has no owner (though a
matter of great indecency), is no felony, unless some of
the grave-clothes be stolen with it. 4
Mixed, or compound larceny is such as has all the prop-
erties of simple larceny, but is accompanied with either one
or both of the aggravations of a taking from one's house
or person. [239] First, therefore, of larceny from the
house, and then of larceny from the person.
1. Larceny from the house, though it seems (from the
considerations mentioned in the preceding chapter) to have
a higher degree of guilt than simple larceny, yet it is not
at all distinguished from the other at common law, unless
where it is accompanied with the circumstance of breaking
2. Of a domestic nature. larceny at common law. Clark's
3. Dogs when taxable; tame song Crim. Law, 273, 274; Washburri'a
birds; tame doves; reclaimed honey Crim. Law (3d Ed.), 59, 60 and notes,
bees; oysters planted in public waters 4. See Williams v. Williams. 21
where they did not grow naturally Am. Law Reg. (N. S.) 508 and note,
with the spot marked off by stakes, where the cases are fully collected,
etc., have been held the subject of
CHAP. XVII. ]
PRIVATE PROPERTY.
729
the house by night; and when we have seen that it falls
under another description, viz., that of burglary. 5 [240]
5. The statutes of the several states
hav enlarged the common law crime
of larceny and created species of lar-
ceny other than those at common law.
For example, the statute of Illinois
(R. S. 1874, 373, 139), defines lar-
ceny as follows:
" Larceny is the felonious stealing,
taking and carrying, leading, riding
or driving away the personal goods
of another. Larceny shall embrace
every theft which deprives another of
his money or other personal property,
or those means or muniments by
which the right and title to property,
real or personal, may be ascertained.
Private stealing from the person of
another and from a house in the day-
time shall be deemed larceny. Lar-
ceny may also be committed by feloni-
ously taking and carrying away any
bond, bill, note, receipt or any in-
strument of writing of value to the
owner." The amendment of 1877 to
section 70 of the Criminal Code, on
burglary, abrogated the old distinc-
tion between entry in the day-time
and night-time and made certain en-
tries in the day-time burglary; but
did not change the phraseology of the
definitions above quoted. See 1 Starr
& Curtis's Annotated Statutes, 111.,
ch. 38, 305.
Section 312 (Starr & Curtis, id.)
provides that " if any bailee of any
bank-bill, note, money or other prop-
erty, shall convert the same to his
own use, with intent to steal the same,
or secretes the same with intent so to
do, he shall be deemed guilty of lar-
ceny."
The statute also (Id., 313) makes
it larceny for a bailee to fraudulently
convert property bailed to him even
though he does not break bulk or
otherwise determine the bailment; it
also (Id., 314, 316, 317) makes
it larceny to steal beasts and birds
ferae naturae, lead pipe, faucets, etc.,
from any building, things attached to
the realty, newspapers, etc., and makes
it a misdemeanor (Id., 318) to
wrongfully tap any connecting wire
for taking news dispatches. See, gen-
erally, Moore's (111.) Crim. Law,
Larceny, 483 et seq.
The statutes of Illinois also (Id.,
165) provide that "whoever embez-
zles or fraudulently converts to his.
own use, or secretes with intent to em-
bezzle or fraudulently converts (sic.)
to his own use, money, goods or prop-
erty delivered to him, which may be
the subject of larceny, or any part
thereof, shall be deemed guilty of lar-
ceny." Section 166, id., makes the
embezzlement of his empolyers prop-,
erty by any officer, agent, clerk, or
servant of any incorporated company,
person or copartnership, or society,
larceny. Section 167, id., makes the
embezzlement of money, notes, bonds,
etc., by any banker, broker, etc., lar-
ceny.
There are other section germane to
the subject but the above will suffice
to show the extensive statutory
changes of the common law in Illi-
nois. Doubtless, equally extensive
changes will be found in most of the
other states. Students expecting to
practice should, therefore, after study-
ing the common law upon the subject
consult the statutes of the states in
which they respectively expect to prac-
tice. See, generally, Clark's Crim.
Law (2d Ed.), ch. 11; Washburn's
Crim. Law (3d Ed.), 47; Bishop's
New Crim. Law and McClain's Crim.
Law, titles Larceny and Embezzle-
ment.
7SO OFFENCES AGAINST [BOOK IV.
2. Larceny from the person is either by privately stealing,
or by open and violent assault, which is usually called rob-
bery? [241]
Open and violent larceny from the person, or robbery, is
the felonious and forcible taking from the person of another
of goods or money to any value, by violence or putting him
in fear. T [242] There must be a taking, otherwise it is no
robbery. A mere attempt to rob was indeed held to be
felony so late as Henry IV. 's time, but afterwards it was
taken to be only a misdemeanor, and punishable with fine
and imprisonment, till the statute 7 Geo. II. c. 21, which
makes it a felony. If the thief, having once taken a purse,
returns it, still it is a robbery; and so it is whether the tak-
ing be strictly from the person of another, or in his presence
only: as where a robber by menaces and violence puts a
man in fear, and drives away his sheep or his cattle before
his face. But if the taking be not either directly from his
person or in his presence, it is no robbery. 2. It is imma-
terial of what value the thing taken is: a penny as well as
a pound, thus forcibly extorted, makes a robbery. 3. Lastly,
the taking must be by force or a previous putting in fear,
which makes the violation of the person more atrocious than
privately stealing. This previous violence, or putting in
fear, is the criterion that distinguishes robbery from other
larcenies. For if one [243] privately steals sixpence from
the person of another, and afterwards keeps it by putting
him in fear, this is no robbery, for the fear is subsequent:
neither is it capital, or privately stealing, being under the
value of twelvepence. Not that it is indeed necessary,
though usual, to lay in the indictment that the robbery was
committed by putting in fear; it is sufficient, if laid to be
done by violence. And when it is laid to be done by putting
in fear, this does not imply any great degree of terror or
affright in the party robbed : it is enough that so much force,
or threatening by word or gesture, be used, as might create
an apprehension of danger, or induce a man to part with
6. As to the offence of privately without his knowledge, consult the
(Healing from a man's person, as by local statutes,
picking his pocket or the like, privily 7. Clark's Crim. Law, 323.
CHAP. XVII.] PRIVATE PROPERTY. 721
his property without or against his consent. Thus, if a
man be knocked down without previous warning, and
stripped of his property while senseless, though strictly he
cannot be said to be put in fear, yet this is undoubtedly a
robbery. Or, if a person with a sword drawn begs an
alms, and I give it him through mistrust and apprehension
of violence, this is a felonious robbery. So if, under a pre-
tence of sale, a man forcibly extorts money from another,
neither shall this subterfuge avail him. But it is doubted,
whether forcing a higler, or other chapman, to sell his
wares, and giving him the full value of them, amounts to
so heinous a crime as robbery. 8
II. Malicious mischief, or damage, is the next species of
injury to private property which the law considers as a
public crime. This is such as is done, not animo furandi, 9
or with an intent of gaining by another's loss, which is
some, though a weak, excuse, but either out of a spirit of
w r anton cruelty or black and diabolical revenge, in which it
bears a near relation to the crime of arson; for as that
affects the habitation, so this does the other property of
individuals. And therefore any damage arising from this
mischievous disposition, though only a trespass at common
law, is now by a multitude of statutes made penal in the
highest degree. 1
8. This crime includes all the ele- as cannot be attached to his person,
ments of larceny (which see) and such as cattle, horses, etc. So, if
more, viz., the taking from the person they are taken from a desk which the
or in his presence, and against his owner is induced to open by violence
will by violence or putting in fear, or through fear. Wash. Crim. Law
See Clark's Crim. Law, 323-326. (3d Ed.), 98, 99; 2 Whart. Crim.
To constitute a taking the property Law (7th Ed.), 1166 et seq. .
must have passed entirely into the 9. With intent to steal,
possession of the robber; thus snatch- 1. Malicious mischief is a misde-
ing an ear-ring from a lady's ear so meaner at common law, but has been
that the ear is thereby torn is rob- made a crime by statut?s of manifold
bery, though the ear-ring is dropped character in all the states. There is
into her hair and found there by the considerable conflict among the corn-
owner. Wash. Crim. Law (3d Ed.), mon law authorities. This crime is
97; Com. v. Clifford, 8 Cusli. 215. distinguished from larceny by the
Taking articles from the owner's lack of the animus furandi, or inten-
presenee by violence or putting in fear tion to steal. Malice is an essential
is robbery though the articles are such element of the crime and must be di-
732
OFFENCES AGAINST PRIVATE PROPERTY. [BOOK IV.
III. Forgery, or the crimen falsi, may be defined at com-
mon law to be ' ' the fraudulent making or alteration of a
writing to the prejudice of another man's right, 2 for which
the offender may suffer fine, imprisonment, and pillory.
[247] And also, by a variety of statutes, a more severe
punishment is inflicted on the offender in many particular
cases, which are so multiplied of late as almost to become
general. So that, I believe, through the number of these
general and special provisions, there is now hardly a case
possible to be conceived wherein forgery that tends to
defraud, whether in the name of a real or fictitious person,
is not made a capital crime. [250]
reeled against the owner of the prop-
erty injured. Consult the state stat-
utes.
2. Clark's Crim. Law, 333; Wash.
Crim. Law (3d Ed.), 53.
This offence was only a misde-
meanor at common law, but is now, so
far as we know, every where by stat-
ute made a felony. The making or al-
teration must be false and with in-
tent to defraud; the instrument as
made or altered, must apparently be
legally efficient to impose or charge
a liability, that is to say, it must be
material. Clark's Crim. Law (2d
Ed.), 333; Wash. Crim. Law (3d
Ed.), 53. The instrument forged may
be a letter of recommendation, an or-
der for delivery of goods, etc., a rail-
road or theatre ticket, as well as a
deed, mortgage, promissory note, bill
of exchange or other written contract.
Id. and cases cited in notes.
Forgery may be committed by sign-
ing one's own name in such a manner
as to make the writing purport to be
that of another person of the same
or a similar name. Clark's Crim.
Law, 324; Com. v. Foster, 114 Mass.
311; it may be committed by signing
the name of a fictitious person.
Clark's Crim. Law. 334; McClain's
Crim. Law, 764: People v. Marion,
29 Mich. 31; State v. Minton. 116
Mo. 605. See contra, Com. v. Bald-
win, 11 Gray, 197
Alterations or erasures must be ma-
terial. The addition of words which
the law would imply, adding the
name of a witness when the paper
does not require attestation, etc., do
not constitute forgery; but changing
the date (when material) amount,
place of payment, etc., are material.
Altering one's own note after its de-
livery may be a forgery. See, gener-
ally, Clark's Crim. Law (3d Ed.),
333, 340, where the cases are well
collectad and considered. As this of-
fence has been the subject of much
legislation the statutes should always
be examined.
Uttering and publishing a false and
forged paper knowing it to be such,
is punishable at common law provided
a fraud is thereby perpetrated. The
offence of uttering is distinct from
that of forgery; but both offences
may be charged in separate counts of
the same indictment, though there
can be only one judgment where one
offence forms part of the other. Wash.
Crim. Law (3d Ed.), 56; 3 Greenl.
Evid. 103; Parker v. People, 97 111.
32.
Uttering false instruments is usu-
ally made a substantive offence by
statute in the several states.
CHAP. XVTIL] MEANS OF PREVENTING OFFENCES. 733
CHAPTER XVIII.
OF THE MEANS OF PREVENTING OFFENCES.
Preventive justice consists in obliging those persons
whom there is a probable ground to suspect of future mis-
behavior to stipulate with and to give full assurance to the
public that such offence as is apprehended shall not happen,
by finding pledges or securities for keeping the peace, or
for their good behavior. [251] Let us consider, first, what
this security is; next, who may take or demand it; and
lastly, how it may be discharged.
1. This security consists in being bound, with one or
more securities, in a recognizance or obligation to the king,
entered on record and taken in some court or by some judi-
cial officer, whereby the parties acknowledged themselves
to be indebted to the crown in the sum required (for in-
stance 100Z.), with condition to be void and of none effect
if the party shall appear in court on such a day, and in the
mean time shall keep the peace; either generally, toward
the king and all his liege people, or particularly also with
regard to the person who craves the security. [253] Or
if it be for the good behavior, then on condition that he
shall demean and behave himself well (or be of good be-
havior), either generally or specially, for the time therein
limited, as for one or more years, or for life. This recog-
nizance, if taken by a justice of the peace, must be certified
to the next sessions, in pursuance of the statute 3 Hen. VII.
c. 1, and if the condition of such recognizance be broken,
by any breach of the peace in the one case or any misbe-
havior in the other, the recognizance becomes forfeited or
absolute, and being estreated or extracted (taken out from
among the other records) and sent up to the Exchequer,
the party and his sureties, having now become the king's
absolute debtors, are sued for the several sums in which
they are respectively bound.
2. Any justices of the peace, by virtue of their commis-
sion, or those who are ex-oflicio conservators of the peace
734 MEANS OF PREVENTING OFFENCES. [BOOK IV.
may demand such security according to their own discre-
tion; or it may be granted at the request of any subject,
upon c|ue cause shown, provided such demandant be under
the king's protection. Wives may demand it against their
husbands, or husbands, if necessary, against their wives. 1
[254] But feme-coverts and infants under age ought to
find security by their friends only, and not to be bound
themselves; for they are incapable of engaging themselves
to answer any debt, which, as we observed, is the nature
of these recognizances or acknowledgments.
3. A recognizance may be discharged either by the de-
mise of the king, to whom the recognizance is made; or by
the death of the principal party bound thereby, if not before
forfeited; or by order of the court to which such recog-
nizance is certified by the justices (as the quarter sessions,
assises, or King's Bench), if they see sufficient cause; or in
case he at whose request it was granted, if granted upon
a private account, will release it, or does not make his
appearance to pray that it may be continued.
Thus far what has been said is applicable to both species
of recognizances, for the peace, and for the good behavior,
But as these two species of securities are in some respects
different, especially as to the cause of granting or the means
of forfeiting them, I shall now consider them separately;
and first shall show for what cause such a recognizance,
with sureties for the peace, is grantable, and then, how it
may be forfeited.
1. Any justice of the peace, 2 may, ex-ofli<;io, bind all those
to keep the peace who in his presence make any affray; or
threaten to kill or beat another; or contend together with
hot and angry words; or go about with unusual weapons
or attendance, to the terror of the people; and all such as
he knows to be common barrators; and such as are brought
before him by the constable for a breach of peace in his
1. Statutes similar in substance to (Crim. Code), Division 5. See, also,
the text will be found, probably, in Moore's Crim. Law.
all the states of the Union. The Illi- 2. Judges of courts of record are,
r.ois statute will be found in 1 Starr as a rule, also conservators of the
& Curtis's Annotated Statutes, 1372 peace.
CHAP. XVIII. ] MEANS OF PREVENTING OFFENCES. 735
presence; and all such persons as, having been before bound
to the peace, have broken it and forfeited their recog-
nizances. [255] Also wherever any private man hath just
cause to fear that another will burn his house or do him a
corporal injury, by killing, imprisoning, or beating him,
or that he will procure others so to do, he may demand
surety of the peace against such person; and every justice
of the peace is bound to grant it if he who demands it will
make oath that he is actually under fear of death or bodily
harm, and will show that he has just cause to be so, by
reason of the other's menaces, attempts, or having lain in
wait for him, and will also further swear that he does not
require such surety out of malice or for mere vexation.
This is called swearing the peace against another; and if the
party does not find such sureties as the justice in his dis-
cretion shall require, he may immediately be committed
till he does.
2. Such recognisance for keeping the peace when given
may be forfeited by any actual violence, or even an assault
or menace to the person of him who demanded it, if it be
a special recognizance; or, if the recognizance be general,
by any unlawful action whatsoever that either is or tends to
a breach of the peace; or more particularly by any one of
the many species of offences which were mentioned as
crimes against the public peace in the eleventh chapter of
this book; or by any private violence committed against
any of his Majesty's subjects. But a bare trespass upon
the lands or goods of another, which is a ground for a civil
action, unless accompanied with a wilful breach of the
peace, is no forfeiture of the recognizance. Neither are
mere reproachful words, as calling a man knave or liar, any
breach of the peace so as to forfeit one's recognizance
(being looked upon to be merely the effect of unmeaning
heat and passion), unless they amount to a challenge to
fight. [256]
The other species of recognizance, with sureties, is for
the good abearance or good behavior. This includes se-
curity for the peace and somewhat more; we will therefore
examine it in the same manner as the other.
MEANS OF PREVENTING OFFENCES. [Boos IV.
1. First, then, the justices are empowered by the statute
34 Edw. III. c. 1, to bind over to the good behavior toward
the king and his people all them that be not of good fame,
wherever they be found, to the intent that the people be not
troubled nor endamaged, nor the peace diminished, nor mer-
chants and others passing by the highways of the realm be
disturbed nor put in the peril which may happen by such
offenders. Under the general words of this expression, that
be not of good fame, it is holden that a man may be bound
to his good behavior for causes of scandal contra bonos mores,
as well as contra pacem, as for haunting bawdy-houses with
women of bad fame, or for keeping such women in his own
house, or for words tending to scandalize the government,
or in abuse of the officers of justice, especially in the execu-
tion of their office. Thus also a justice may bind over all
night-walkers, eaves-droppers, such as keep suspicious Com-
pany or are reported to be pilferers or robbers, such as
sleep in the day and wake in the night, common drunkards,
whoremasters, the putative fathers of bastards, cheats, idle
vagabonds, and other persons whose misbehavior may rea-
sonably bring them within the general words of the statutes,
as persons not of good fame, an expression, it must be
owned, of so great a latitude as leaves much to be deter-
mined by the discretion of the magistrate himself. But if
he commits a man for want of sureties, he must express the
cause thereof with convenient certainty, and take care that
such cause be a good one.
2. A recognizance for the good behavior may be forfeited
by all the same means as one for the security of the peace
may be, and also by some others [257], as by going armed
with unusual attendance to the terror of the people, by
speaking words tending to sedition, or by committing any
of those acts of misbehavior which the recognizance was
intended to prevent. But not by barely giving fresh cause
of suspicion of that which perhaps may never actually hap-
pen; for though it is just to compel suspected persons to
give security to the public against misbehavior that is
apprehended, yet it would be hard upon such suspicion,
without the proof of any actual crime, to punish them by
a forfeiture of their recognizance.
CHAP. XIX.] COURTS OF CRIMINAL JURISDICTION. 737
CHAPTER XIX.
OF COURTS OF CRIMINAL, JURISDICTION.
1. The High Court of Parliament is the supreme court
in the kingdom, not only for the making, but also for the
execution of laws, by the trial of great and enormous offen-
ders, whether lords or commoners, in the method of parlia-
mentary impeachment. [259] An impeachment before the
Lords by the Commons of Great Britain, in parliament, is a
prosecution of the already known and established law, being
a presentment to the most high and supreme court of crimi-
nal jurisdiction by the most solemn grand inquest of the
whole kingdom. A commoner cannot, however, be im-
peached before the Lords for any capital offence, 1 but only
for high misdemeanors; a peer may be impeached for any
crime. 2 [260] And they usually (in case of an impeach-
ment of a peer for treason) address the crown to appoint a
lord high steward for the greater dignity and regularity
of their proceedings, which high steward was formerly
elected by the peers themselves, though he was generally
commissioned by the king; but it hath of late years been
strenuously maintained that the appointment of an high
steward in such cases is not indispensably necessary, but
that the House may proceed without one. [260] The arti-
cles of impeachment are a kind of bills of indictment found
by the House of Commons, and afterwards tried by the
Lords, who are in cases of misdemeanors considered not
only as their own peers, but as the peers of the whole nation.
1. See, however, 14 Lord's Journ., and to this effect are all these stat-
p. 260. utes, viz., 32 H. VIII., c. 4, Rastall
2. For misdemeanors, as libels, 404, pi. 10: 33 H. VIII., c. 12, Ras-
riots, etc., peers are to be tried, like tall 415; 35 H. VIII., c. 2, Rastall
commoners, by a jury, for, "at the -416; and in all these express mention
common law, in these four cases only, is made of trial by peers. But in this
a peer shall be tried by his peers, viz., case of a praemunire, the same being
in treason, felony, misprision of trea- only in effect but a contempt, no trial
son, and misprision of felony; and the shall be here in this of a peer by his
statute law which gives such trial, peers." Per Fleming, C. J., assented
hath reference unto these, or to other to by the whole court, in Rex v. Lord
offences made treason or felony: his Vaux, 1 Bulstr. 197.
trial by his peer shall be as before;
JW
738 COUBTS OF CRIMINAL JURISDICTION. [BOOK IV.
2. The Court of the Lord High Steward of Great Britain
is a court instituted for the trial of peers indicted for trea-
son or felony, or for misprision of either. [261] When
such an indictment is therefore found by a grand jury of
freeholders in the King 's Bench, or at the assises before the
justices of oyer and terminer, it is to be removed by a writ
of certiorari into the Court of the Lord High Steward, which
only has power to determine it. [262] During the session of
parliament the trial of an indicted peer is not properly in
the Court of the Lord High Steward, but before the court last
mentioned, of our lord the king in parliament. [263]
3. The Court of King's Bench is divided into a crown
side and a plea side. [265] And on the crown side, or
crown office, it takes cognizance of all criminal causes, from
high treason down to the most trivial misdemeanor or
breach of the peace. Into this court also indictments from
all inferior courts may be removed by writ of certiorari,
and tried either at bar or at nisi prius by a jury of the
county out of which the indictment is brought.
4. The Court of Chivalry is also a criminal court when held before the
lord high constable of England jointly with the earl marshal. And then
it has jurisdiction over pleas of life and member, arising in matters of
arms and deeds of war, as well out of the realm as within it. [Obsolete.]
5. The High Court of Admiralty, 3 held before the Lord
High Admiral of England or his deputy, styled the Judge
of the Admiralty, is not only a court of civil, but also of
criminal jurisdiction. [268] This court hath cognizance of
all crimes and offences committed either upon the sea or
on the coasts, out of the body or extent of any English
county; and by statute 15 Ric. II. c. 3, of death and mayhem
happening in great ships being and hovering in the main
stream of great rivers, below the bridges of the same rivers,
which are then a sort of ports or havens, such as are the
ports of London and Gloucester, though they lie at a great
distance from the sea. But as this court proceeded without
jury in a method much conformed to the civil law, the exer-
3. See, generally, 3 Broom & Had- Courts. Const. U. S., art. 3, 2. See,
ley's Com., ch. 16 and notes. generally, Benedict's Admiralty, 4tb
This jurisdiction in this country is Ed. 1910. Also ante, and note,
vested in the United States; District
CHAP. XIX.] COURTS OF CRIMINAL JURISDICTION. 739
else of a criminal jurisdiction there Was contrary to the
genius of the law of England. And by the statute 28 Hen.
VIII. c. 15, it was enacted that these offences should be tried
by commissioners of oyer and terminer, under the king's
Great Seal, namely, the admiral or his deputy, and three
or four more (among whom two common law judges are
usually appointed); the indictment being first found by a
grand jury of % twelve men, and afterwards tried by a petty
jury; and that the course of proceedings should be accord-
ing to the law of the land. [269] This is now the only
method of trying marine felonies in the Court of Admiralty,
the Judge of the Admiralty still presiding therein, as the
Lord Mayor is the president of the session of oyer and
terminer in London.
These five courts may be held in any part of the king-
dom, and their jurisdiction extends over crimes that arise
throughout the whole of it, from one end to the other.
What follow are also of a general nature, and universally
diffused over the nation, but yet are of a local jurisdiction
and confined to particular districts. Of which species
are,
6, 7. The courts of oyer and terminer, and the general
gaol delivery, 4 which are held before the king's commis-
sioners, among whom are usually two judges of the courts
at Westminster, twice in every year in every county of the
kingdom, except the four northern ones, where they are
held only once, and London and Middlesex, wherein they
are held eight times. These were slightly mentioned in
the preceding book. We then observed that at what is
usually called the assises the judges sit by virtue of five
several authorities, the fourth of which is the commission of
4. In the federal system the United law jurisdiction. In some of the
States District Court has original ju- states, however (as well as in the
risdiction of all criminal cases aris- United States), no act is a crime un-
ing under the United States statutes, less declared to be such by statute,
for there are no common law crimes Key v. Vatler, 1 Ohio, 132; Rev. Stat.
against the United States. Wash. Ind. 1852, p. 352; id., 1876 (Davis),
Crim. Law (3d Ed.), 10, 265. p. 606; Marvin v. State, 19 Ind. 181;
In the several states criminal ju- State v. Torrey, 55 Kan. 347. The
risdiction is exercised by circuit, 'dis- common law, however, furnishes aid
trict, Common pleas or other oorre- in defining the terms used. Ledger-
sponding courts of gen- ral common wood v. State, 134 Ind. 81.
7iO COURTS OF CRIMINAL JURISDICTION. [BOOK IV.
oycr and tcrmincr, to hear and determine all treasons, fel-
onies, and misdemeanors. [270]
8. The court of general quarter sessions of the peace is-
a court that must be held in every county once in every
quarter of a year. [271] It is held before two or more
justices of the peace, one of which must be of the quorum.
The jurisdiction of this court, by statute 34 Edw. III. c. 1,
extends to the trying and determining all felgnies and tres-
passes whatsoever, though they seldom, if ever, try any
greater offence than small felonies within the benefit of
clergy, their commission providing that if any case of diffi-
culty arises they shall not proceed to judgment, but in the
presence of one of the justices of the Court of King's
Bench or Common Pleas, or one of the judges of assise.
And therefore murders and other capital felonies are usu-
ally remitted for a more solemn trial to the.assises.
9. The sheriff's tourn, or rotation, is a court of record held twice every
year, within a month after Easter and Michaelmas, before the sheriff, in
different parts of the county, being indeed only the turn of the sheriff to
keep a court-leet in each respective hundred; this, therefore, is the great
court-leet of the county, as the county-court is the court-baron, for out of
this, for the ease of the sheriff, was it taken. [273]
10. The court-leet, or mew of frankpledge, which is a court of record held
once in the year and not oftener, within a particular hundred, lordship, or
manor, before the steward of the leet, being the king's court granted by
charter to the lords of those hundreds or manors. Its original intent was to
view the frankpledges, that is, the freemen within the liberty, who, according
to the institution of the Great Alfred were all mutually pledges for the good
behavior of each other. Besides this the preservation of the peace and the
chastisement of divers minute offences against the public good are the objects
both of the court-leet and the sheriff's tourn, which have exactly the same
jurisdiction, one being only a larger species of the other, extending over more
territory, but not over more causes.
11. The court of the coroners is also a court of record, to
inquire, when any one dies in prison or comes to a violent
or sudden death, by what manner he came to his end [274] ;
and this he is only entitled to do super risum corporis. 5
12. The court of the clerk of the market is incident to every fair and
market in the kingdom to punish misdemeanors therein, as a court of
pie poudre is to determine all disputes relating to private or civil prop-
erty. [275]
5. Upon the view of the body. See ante, Book 1.
CHAP. XX.] OF SUMMARY CONVICTIONS. 741
CHAPTER XX.
OF SUMMARY CONVICTIONS. 1
By a summary proceeding I mean principally such as is
directed by several acts of parliament (for the common law
is a stranger to it, unless in the case of contempts) for the
conviction of offenders and the inflicting of certain penal-
ties created by those acts of parliament. [280] In these
there is no intervention of a jury, but the party accused is
acquitted or condemned by the suffrage of such person only
as the statute has appointed for his judge.
I. Of this summary nature are all trials of offences and
frauds contrary to the laws of the excise, and other
branches of the revenue, 2 which are to be inquired into and
determined by the commissioners of the respective de-
partments, or by justices of the peace in the country. [281]
n. Another branch of summary proceedings is that be-
fore justices of the peace, in order to inflict divers petty
pecuniary mulcts and corporal penalties denounced by act
of parliament for many disorderly offences ; such as common
swearing, drunkenness, vagrancy, idleness, and a vast
variety of others, for which I must refer the student to
the justice-books formerly cited (Lombard and Burn), and
which were formerly punished by the verdict of a jury in
the court-leet. 3
The process of these summary convictions is extremely
speedy; though the courts of common law have thrown in
one check upon them, by making it necessary to summon
the party accused before he is condemned. [283] After
this summons the magistrate in summary proceedings may
go on to examine one or more witnesses, as the statute may
require, upon oath, and then make his conviction of the
1. Charges of vagrancy and disor- stitution cannot subsequently be made
derly conduct were never triable by triable without jury. Miller v. Com.,
jury. State v. Glenn, 54 Md. 572. 88 Va. 618. See, generally, Cooley'a
And petty offences need not be so Const. Lira. (7th Ed.), 453, 454, note,
tried. Ex parte Wooten, 62 Miss. 2. With us this lies within federal
174; Inwood v. State, 42 Ohio St. 186. cognizance.
But an offence triable by jury at 3. See ante, note,
the time of the adoption of the oon-
742 OF SUMMARY CONVICTIONS. [BOOK IV.
offender in writing, upon which he usually issues his war-
rant either to apprehend the offender, in case corporal pun-
ishment is to be inflicted on him, or else to levy the penalty
incurred by distress and sale of his goods.
III. To this head of summary proceedings may also be
properly referred the method, immemorially used by the
superior courts of justice, of punishing contempts by at-
tachment, and the subsequent proceedings thereon.
The contempts that are thus punished are either direct,
which openly insult or resist the powers of the courts or
the persons of the judges who preside there, or else are
consequential, which (without such gross insolence or di-
rect opposition) plainly tend to create an universal disre-
gard of their authority. [284] The principal instances of
either sort that have been usually punishable by attach-
ment are chiefly of the following kinds : 1. Those com-
mitted by inferior judges and magistrates, by acting un-
justly, oppressively, or irregularly in administering those
portions of justice which are intrusted to their distribution,
or by disobeying the king's writs issuing out of the superior
courts, by proceeding in a cause after it is put a stop to
or removed by writ of prohibition, certiorari, error, super-
sedeas, and the like. 2. Those committed by sheriffs, bail-
iffs, gaolers, and other officers of the court, by abusing the
process of the law, or deceiving the parties by any acts of
oppression, extortion, collusive behavior, or culpable neg-
lect of duty. 3. Those committed by attorneys and solici-
tors, who are also officers of the respective courts, by gross
instances of fraud and corruption, injustice to their clients,
or other dishonest practice. 4. Those committed by jury-
men in collateral matters relating to the discharge of their
office, such as making default when summoned, refusing to
be sworn or to give any verdict, eating or drinking without
the leave of the court, and especially at the cost of either
party, and other misbehavior or irregularities of a similar
kind, but not in mere exercise of their judicial capacities,
as by giving a false or erroneous verdict. 5. Those com-
mitted by witnesses, by making default when summoned,
refusing to be sworn or examined, or prevaricating in their
evidence when sworn. 6. Those committed by parties to
CHAP. XX.] OF SUMMARY CONVICTIONS. 743
any suit or proceeding before the court, as by disobedience
to any rule or order made in the progress of a cause, by
non-payment of costs awarded by the court upon a motion,
or by non-observance of awards duly made by arbitrators
or umpires after having entered into a rule for submitting
to such determination. [285] Indeed the attachment for
most of this species of contempts, and especially for non-
payment of costs and non-performance of awards, is to be
looked upon rather as a civil execution for the benefit of
the injured party, though carried on in the shape of a crimi-
nal process for a contempt of the authority of the court.
And therefore it hath been held that such contempts, and
the process thereon, being properly the civil remedy of indi-
viduals for a private injury, are not released or affected
by the general act of pardon. 7. Those committed by any
other persons under the degree of a peer, and even by
peers themselves, when enormous and accompanied with
violence, such as forcible rescous and the like, or when they
import a disobedience to the king's great prerogative writs
of prohibition, habeas corpus, and the rest. Some of these
contempts may arise in the face of the court, as by rude
and contumelious behavior, by obstinacy, perverseness, or
prevarication; by breach of the peace or any wilful disturb-
ance whatever; others in the absence of the party, as by
disobeying or treating with disrespect the king's writ or the
rules or process of the court; by perverting such writ or
process to the purposes of private malice, extortion, or in-
justice ; by speaking or writing contemptuously of the
cou"rt or judges acting in their judicial capacity; by printing
false accounts (or even true ones without proper permis-
sion) of causes then depending in judgment; and by any-
thing, in short, that demonstrates a gross want of that re-
gard and respect, which when "once courts of justice are
deprived of, their authority (so necessary for the good
order of the kingdom) is entirely lost among the people.
If the contempt 4 be committed in the face of the court,
the offender may be instantly apprehended and imprisoned,
4. The subject of contempt has al- notes; Cooler's Const. Lim. (7th
ready been considered ante. See Ed.), 453, note.
Wash. Crim. Law (3d Ed.), 246 and
744 OF SUMMARY CONVICTIONS. [BOOK IV.
at the discretion of the judges, without any further proof
or examination. [286] But in matters that arise at a dis-
tance, and of which the court cannot have so perfect a
knowledge, unless by the confession of the party or the
testimony of others, if the judges upon affidavit see suffi-
cient ground to suspect that a contempt has been commit-
ted, they either make a rule on the suspected party to-
show cause why an attachment should not issue against
him, or, in very flagrant instances of contempt, the attach-
ment issues in the first instance, as it also does if no suffi-
cient cause be shown to discharge, and thereupon the court
confirms and makes absolute the original rule. 5 [287]
This process of attachment is merely intended to bring the
party into court, and when there he must either stand com-
mitted or put in bail in order to answer upon oath to such
interrogatories as shall be administered to him for the
better information of the court with respect to the circum-
stances of the contempt. These interrogatories are in the
nature of a charge or accusation, and must by the course of
the court be exhibited within the first four days, and if any
of the interrogatories are improper the defendant may
refuse to answer it and move the court to have it struck
out. If the party can clear himself upon oath, he is dis-
charged, but if perjured, may be prosecuted for the per-
jury. If he confesses the contempt, the court will proceed
to correct him by fine or imprisonment, or both, and some-
times by a corporal or infamous punishment. If the con-
tempt be of such nature that, w T hen the fact is once ac-
knowledged, the court can receive no further information
by interrogatories than it is already possessed of (as in the
case of a rescous), the defendant may be admitted to make
such simple acknowledgment, and receive his judgment
without answering to any interrogatories ; but if he wilf ully
and obstinately refuses to answer, or answers in an evasive
manner, he is then clearly guilty of a high and repeated
contempt, to be punished at the discretion of the court.
5. The attachment in such case is tempt. Ex parte Petrie, 38 111. 498;
merely a process to bring the defend- Petrie v. People, 4 id. 334; Ex parie
ant before the court to show cause why Langden, 25 Vt. 682.
he should not be punished for a con-
CHAP. XXL] OF ARRESTS. 745
CHAPTER XXI.
OF ARRESTS.
An arrest is the apprehending or restraining of one's
person in order to be forthcoming to answer 'an alleged
or suspected crime. [289] To this arrest all persons what-
soever are, without distinction, equally liable in all criminal
cases ; but no man is to be arrested unless charged with such
a crime as will at least justify holding him to bail when
taken. And in general an arrest may be made four ways:
1. By warrant; 2. By an officer without warrant; 3. By a
private person also without a warrant; 4. By an hue and
cry.
1. A warrant may be granted in extraordinary cases by
the Privy Council or Secretaries of State, but ordinarily by
justices of the peace. 1 [290] This they may do in any
cases where they have a jurisdiction over the offence, in
order to compel the person accused to appear before them.
And this extends undoubtedly to all treasons, felonies, and
breaches of the peace, and also to all such offences as they
have power to punish by statute. 1. A justice of the peace
hath power to issue a warrant to apprehend a person ac-
cused of felony, though not yet indicted. 2. He may also
issue a warrant to apprehend a person suspected of felony,
though the original suspicion be not in himself, but in the
party that prays his warrant, because he is a competent
judge of the probability offered to him of such suspicion.
But in both cases it is fitting to examine upon oath the
party requiring a warrant, as well to ascertain that there
is a felony or other crime actually committed, without
which no warrant should be granted, as also to prove
the cause and probability of suspecting the party against
whom the warrant is prayed. This warrant ought to be
under the hand and seal of the justice, should set forth the
1. This is still the ordinary way ready been indicted. See Wash. Crini.
<if instituting a criminal prosecution Law (3d Ed.), 104, and the state
where the party accused has not al- statutes.
746 OF AEBBSTS. [BOOK IV.
time and place of making, and the cause for which it is
made, and should be directed to 'the constable or other peace
office (or, it may be, to any private person by name), re-
quiring him to bring the party either generally before any
justice of the peace for the county, or only before the jus-
tice who granted it, the warrant in the latter case being
called a special warrant. [291] A general warrant to ap-
prehend all persons suspected, without naming or particu-
larly describing any person in special, is illegal and void
for its uncertainty; for it is the duty of the magistrate, and
ought not to be left to the officer, to judge of the ground of
suspicion. 2 And a warrant to apprehend all persons guilty
of a crime therein specified is no legal warrant, for the point
upon which its authority rests is a fact to be decided on a
subsequent trial, namely, whether the person apprehended
thereupon be really guilty or not. It is therefore in fact no
warrant at all, for it will not justify the officer who acts
under it. And when a warrant is received by the officer he
is bound to execute it, so far as the jurisdiction of the
magistrate and himself extends. A warrant from the Chief
or other Justice of the Court of King's Bench extends all
over the kingdom, and is tested or dated England, not Oxford-
shire, Berks, or other particular county. But the warrant
of a justice of the peace in one county, as Yorkshire, must
be backed that is, signed by a justice of the peace in
another, as Middlesex before it can be executed there.
[292] Formerly, regularly speaking, there ought to have
been a fresh warrant in every fresh county; but the practice
of backing warrants had long prevailed without law, and
was at last authorized by statutes 23 Geo. II. c. 26, and
24 Geo. H. c. 55.
2. Arrests by officers without warrant may be executed,
(1) By a justice of the peace, who may himself apprehend,
or cause to be apprehended, by word only, any person com-
mitting a felony or breach of the peace in his presence.
(2) The sheriff, and (3) The coroner may apprehend any
felon within the county without warrant. (4) The con-
stable, of whose office we formerly spoke, hath great orig-
2. See Cooky's Const. Lim. (7th Ed.), 425 and notes.
CHAP. XXI.] OF ARRESTS. 747
inal and inherent authority with regard to arrests. He
may without warrant arrest any one for a breach of the
peace committed in his view, and carry him before a jus-
tice of the peace. And in case of felony actually com-
mitted, or a dangerous wounding whereby felony is like to
ensue, he may upon probable suspicion arrest the felon, a
and for that purpose is authorized (as upon a justice's war-
rant) to break open doors, and even to kill the felon if he
cannot otherwise be taken; and if he or his assistants be
killed in attempting such arrests, it is murder in all con-
cerned.
(5) Watchmen, either those appointed by the statute of Winchester,
13 Edw. I. c. 4, to keep watch and ward in all towns from sunsetting to
sunrising, or such as are mere assistants to the constable, may virtute
officii arrest all offenders, and particularly night-walkers, 4 and commit
them to custody till the morning.
3. Any private person (and a fortiori a peace officer) that
is present when any felony is committed is bound by the law
to arrest the. felon, on pain of fine and imprisonment if he
escapes through the negligence of the standers-by. [293]
And they may justify breaking open the doors upon fol-
lowing such felon; and if they kill him., provided he cannot
be otherwise taken, it is justifiable, though if they are Jellied
in endeavoring to make such arrest it is murder. Upon
probable suspicion, also, a private person may arrest the
felon or other person so suspected [provided a felony has
actually been committed] . 5 But he cannot justify breaking
3. Peace officers by common law some disorderly or suspicious act.
have much greater authority to make Bac. Abr. Trespass, D. 3; 2 Lord
arrests without a warrant than have Raym. 1301.
individuals. " They are held to be 5. " If a felony has in fact been
justified if they act in making the committed by the person arrested, the
arrest upon probable and reasonable arrest may be justified by any person
grounds for believing the party guilty without a warrant whether there is
of a felony. Rohan v. Sawin, 5 Gush, time to obtain one or not; but if no
285. felony was committed by any one and
4. But at common law no peace a private individual arrest without
officer is justified in taking up a warrant such arrest is illegal, though
night-walker unless he has committed, an officer would be justified if he
748 OF ARRESTS. [BOOK IV.
open doors to do it ; and if either party kill the other in the
attempt, it is manslaughter, and no more. It is no more,
because there is no malicious design to kill; but it amounts
to so much, because it would be of most pernicious conse-
quence if, under pretence of suspecting felony, any private
person might break open a house or kill another, and also
because such arrest upon suspicion is barely permitted
by the law, and not enjoined, as in the case of those who
are present when a felony is committed.
4. There is yet another species of arresit, wherein both officers and
private men are concerned, and that is upon an hue and cry raised upon
a felony committed. [See Crim. Code of 111. 339.] An hue (from huer,
to shout and cry) hutesium et clamor, is the old common-law process of
pursuing with horn and with voice all felons and such as have danger-
ously wounded another. It is also mentioned by statute Westm. 1, 3
Edw. I. c. 9, and 4 Edw. I. de officio coronatoris. But the principal statute
relative to this matter is that of Winchester, 13 Edw. I. c. 1 and 4,
which directs that from thenceforth every county shall be so well kept
that immediately upon robberies and felonies committed fresh suit shall
be made from town to town and from county to county, and that hue
and cry shall be raised upon the felons, and they that keep the town
shall follow with hue and ory with all the town and the towns near; and
so hue and cry shall be made from town to town until they be taken and
delivered to the sheriff. And that such hue and cry may more effectu-
ally be made, the hundred is bound by the same statute, cap. 3, to
answer for all robberies therein committed unle&s they take the felon.
[294] [These statutes have been repealed.] Hue and cry may be raised
either by precept of a justice of the peace, or by a peace officer, or by
any private man that knows of a felony. The party raising it must
acquaint the constable of the vill with all the circumstances which he
knows of the felony and the person of the felon, and thereupon the con-
stable is to search his own town, and raise all the neighboring vills, and
make pursuit with horse and foot.- And in the prosecution of such hue
and cry the constable and his attendants have the same powers, protec-
tion, and indemnification as if acting under a warrant of a justice of the
peace. But if a man wantonly or maliciously raises an' hue and cry
without cause, he shall be severly punished as a disturber of the public
peace.
acted upon information from another Brooks v. Com., 61 Pa. 358, citing
which he had reason to rely on." Holly v. Mix, 3 Wend. 353.
CHAP. XXIL] OF COMMITMENT AND BAIL. / 749
CHAPTEE XXIL
OF COMMITMENT AND BAIL.
When a delinquent is arrested by any of the means men-
tioned in the preceding chapter, he ought regularly to be
carried before a justice of the peace. [296]
The justice before whom such prisoner is brought is
bound immediately to examine the circumstances of the
crime alleged; and to this end, by statute 2 & 3 Ph. & M.
c. 10, he is to take in writing the examination of such pris-
oner [repealed], and the information of those who bring
him. If upon this inquiry it manifestly appears that either
no such crime was committed or that the suspicion enter-
tained of the prisoner was wholly groundless, in such cases
only it is lawful totally to discharge him. Otherwise he
must either be committed to prison or give bail, that is,
put in securities for his appearance to answer the charge
against him. 1 This commitment therefore being only for
safe custody, wherever bail will answer the same intention
it ought to be taken, as in most of the inferior crimes; but
in felonies and other offences of a capital nature no bail can
be a security equivalent to the actual custody of the per-
son. [297] What the nature of bail is, hath been shown in
the preceding -book, viz., a delivery of bailment, of a per-
son to his sureties, upon their giving (together with him-
self) sufficient security for his appearance, he being sup-
posed to continue in their friendly custody instead of going
to gaoU 2 In civil cases we have seen that every defendant
1. The general method of procedure of the examination where the justice
in the several states, so far as we cannot try and determine the cause
have observed, is very like that de- upon its merits, is to determine
scribed in the text, except as to the whether the crime charged has been
examination of the accused. In some committed and whether there is prob-
states the accused may be a witness able cause to believe the accused
in his own behalf if he so elects; he guilty of having committed the same,
may be represented by counsel. The See, generally, as to the proceedings,
proceedings on such preliminary ex- Wash. Crim. Law (3d Ed.), 112.
animation are very much like a trial 2. Clark's Crim. Proced., 83.
of the accused except the only object
750 OP COMMITMENT AND BAIL. [Boox IV.
is bailable, but in criminal matters it is other \vise. Let us
therefore inquire in what cases the party accused ought, or
ought not, to be admitted to bail.
And first, to refuse or delay to bail any person bailable,
is an offence against the liberty of the subject, in any mag-
istrate by the common law, as well as by the statute Westm.
1, 3 Edw. I. c. 15, and the habeas corpus act, 3i Car. II. c. 2.
And lest the intention of the law should be frustrated by the
justices requiring bail to a greater amount than the nature
of the case demands, it is expressly declared by statute
1 W. & M. st. 2, c. 1, that excessive bail ought not to be re-
quired; 3 though what bail should be called excessive must
be left to the courts, on considering the circumstances of
the case, to determine. And, on the other hand, if the mag-
istrate takes insufficient bail, he is liable to be fined if the
criminal doth not appear. Bail may be taken either in
court, or in some particular cases by the sheriff, coroner, or
other magistrate, but most usually by the justices of the
peace. Regularly, in all offences either against the com-
mon law or act of parliament that are below felony, the
offender ought to be admitted to bail, unless it be prohibited
by some special act of parliament. 4 [298]
Let us next see who may not be admitted to bail, or what
offences are not bailable. By the ancient common law, be-
fore and since the Conquest, all felonies were bailable, till
murder was excepted by statute; so that persons might be
admitted to bail before conviction almost in every case.
But the statute Westm. 1, 3 Edw. I. c. 15, takes away the
power of bailing in treason and in divers instances of
felony. The statutes 23 Hen. VI. c. 9, and 1 & 2 Ph. & M.
c. 13, give further regulations in this matter; and upon the
whole we may collect that no justice of the peace can bail,
1. Upon an accusation of treason; nor, 2. Of murder; nor,
3. In case of manslaughter, if the prisoner be clearly the
slayer, and not barely suspected to be so, or if any indict-
3. Clark's Crim. Proced., 88; Cool- 4. Id.; Cooler's Const. Lira. (7th
ey's Const. Lim. (7th Ed.), 439; U. Ed.), 437.
S. Const. Amend. 8, and the several
jBiate constitutions.
CHAP. XXII.] OF COMMITMENT AND BAIL. 751
ment be found against him; or, 4. Such as, being committed
for felony, have broken prison, because it not only carries
a presumption of guilt, but is also superadding one felony
to another; 5. Persons outlawed; 6. Such as have abjured
the realm; 7. Approvers, of whom we shall speak in a subse-
quent chapter, and persons by them accused; 8. Persons
taken with the mainor, or in the fact of felony; 9. Persons
charged with arson; 10. Excommunicated persons, taken by
writ de excommunicato capiendo, all which are clearly not
admissible to bail by the justice. [299] Others are of a
dubious nature, as, 11. Thieves openly defamed and
known; 12. Persons charged with other felonies or manifest
and enormous offences, not being of good fame ; and 13. Ac-
cessaries to felony, that labor under the same want of repu-
tation. These seem to be in the discretion of the justices,
whether bailable or not. The last class are such as must
be bailed upon ottering sufficient surety, as, 14. Persons
of good fame, charged with a bare suspicion of manslaugh-
ter or other inferior homicide; 15. Such persons being
charged with petit larceny or any felony not before speci-
fied; or, 16. With being accessary to any felony. Lastly,
it is agreed that the Court of King's Bench (or any judge
thereof in time of vacation) may bail for any crime what-
soever, 5 be it treason, murder, or any other offence, accord-
ing to the circumstances of the case; except only, even to
this high jurisdiction, and of course to all inferior ones,
such persons as are committed by either house of parlia-
ment so long as the session last, or such as are committed
for contempts by any of the king's superior courts of jus-
tice. [300]
Upon the whole, if the offence be not bailable or the party
cannot find bail, he is to be committed to the county gaol
5. The power to admit to bail is a least after indictment or when the
judicial power. It cannot be exercised party is charged by the finding of a
l)y a clerk or other ministerial officer coroner's jury. Cooley's Const. Lira,
nor can it be delegated. Clark's Crim. (7th Ed.), 438; Clark's Crim. Proced.,
Proced., 84. 86. See the United States (8th
In this country capital offences are Amend.) and state constitutions,
not generally regarded as bailable; at
752 OF COMMITMENT AND BAIL. [BOOK IV.
by the mittimus of the justice, or warrant under his hand
and seal, containing the cause of his commitment, there to
abide till delivered by due course of law. 6 But this im-
prisonment, as has been said, is only for safe custody, and
not for punishment; therefore in his dubious interval be-
tween the commitment and trial, a prisoner ought to be used
with the utmost humanity, and neither be loaded with
needless fetters nor subjected to other hardships than such
as are absolutely requisite for the purpose of confinement
only, though what are so requisite must too often be left
to the discretion of the gaolers. Yet the law (as formerly
held) [and so now in this country] would not justify them
in fettering a prisoner, unless where he was unruly or had
attempted to escape. 7
6. See Clark's Crim. Proced., 100, 7. Clark's Crim. Proced., 77; State
as to the requisites of a mitiunus or v. Lewis, 19 Kan. 260.
commitment.
CHAP. XXIII.] MODES OF PROSECUTION. 753
CHAPTEE XXIII.
OF THE SEVERAL MODES OF PROSECUTION.
The next step toward the punishment of offenders is their
prosecution, or the manner of their formal accusation. [301]
And this is either upon a previous finding of the fact by an
inquest or grand jury, or without such previous finding.
The former way is either by presentment or indictment.
I. A presentment, generally taken, is a very compre-
hensive term, including not only presentments properly so
called, but also inquisitions of office, and indictments by a
grand jury. A presentment, properly speaking, is the
notice taken by a grand jury of any offence from their own
knowledge or observation, without any bill of indictment
laid before them at the suit of the king, 1 as the present-
ment of a nuisance, a libel, and the like, upon which the
officer of the court must afterwards frame an indictment
before the party presented can be put to answer it. An
inquisition of office is the act of a jury sommoned by the
proper officer to inquire of matters relating to the crown
upon evidence laid before them. Some of these are in them-
selves convictions, and cannot afterwards be traversed or
denied, and therefore the inquest or jury ought to hear all
that can be alleged on both sides. Of this nature are all
inquisitions of felo de se, 2 of flight in persons accused of
felony, of deodands, and the like, and presentments of petty
offences in the sheriff's tourn or court-leet, whereupon the
presiding officer may set a fine. Other inquisitions may be
afterwards traversed and examined, as particularly the
coroner's inquisition of the death of a man, when it finds
any one guilty of homicide; for in such cases the offender
so presented must be arraigned upon this inquisition, and
may dispute the truth of it, which brings it to a kind of
indictment, the most usual and effectual means of prosecu-
tion, and into which we will therefore inquire a little more
minutely. [302]
1. Clark's Grim. Proced., 105. 2. A suicide.
48
754: MODES OF PROSECUTION. [BOOK IV.
n. An indictment is a written accusation of one or more
persons of a crime or misdemeanor, preferred to and pre-
sented upon oath by a grand jury. 3 To this end the sheriff
of every county is bound to return to every session of the
peace, and every commission of oyer and terminer, and of
general gaol-delivery, twenty-four good and lawful men of
the county, some out of every hundred, to inquire, present,
do, and execute all those things which on the part of our
lord the king shall then and there be commanded them.
As many as appear upon this panel are sworn upon the
grand jury, to the amount of twelve at the least," and not
more than twenty-three; 4 that twelve may be a majority.
This grand jury are previously instructed in the articles of
their inquiry by a charge from the judge who presides upon
the bench. [303] They then withdraw, to sit and receive
indictments, which are preferred to them in the name of
the king, but at the suit of any private prosecutor. And
they are only to hear evidence on behalf of the prosecution;
for the finding of an indictment is only in the nature of an
inquiry or accusation, which is afterwards to be tried and
determined, and the grand jury are only to inquire upon
their oaths whether there be sufficient cause to call upon
the party to answer it. A grand jury, however, ought to be
thoroughly persuaded of the truth of an indictment so far
as their evidence goes, and not to rest satisfied merely with
remote probabilities.
The grand jury are sworn to inquire only for the body
of the county, pro corpore comitatus; and therefore they
cannot regularly inquire of a fact done out of that county,
for which they are sworn, unless particularly enabled by
an act of parliament. And to so high a nicety was this
matter anciently carried, that where a man was wounded in
one county and died in another, the offender was at common
law indictable in neither, because no complete act of felony
3. Clark's Grim. Proced., 105. procedure is very similar to that de-
4. The manner of selecting and scribed by the author. See Rev. Stat.
summoning a grand jury is in this 111. (Starr & Curtis), p. *1388, 586,
country always, so far as we know, p. 2388, 9 ; Clark's Crim. Proced.,
regulated by statute. The general 109; Wash. Crim. Law (3d Ed.), 120.
CHAP. XXIII. ] MODES OF PROSECUTION. 755
was done in any one of them; but by statute 2 & 3 Edw. VI.
c. 24, he is now indictable in the county where the party
died. And by statute 2 Geo. II. c. 21, if the stroke or
poisoning be in England, and the death upon the sea or out
of England, or vice versa, the offenders and their accessaries
may be indicted in the county where either the death, poison-
ing, or stroke shall happen. And so in some other casos,
as particularly where treason is committed out of the realm,
it may be inquired of in any county within the realm, as
the king shall direct, in pursuance of statutes 26 Hen. VIII.
c. 13; 33 Hen. VIII. c. 23; 35 Hen. VIII. c. 2; and 5 & 6 Edw.
VI. c. 11. But in general all offences must be inquired into
as well as tried in the county where the fact is committed.
[305] Yet if larceny be committed in one county and the
goods carried into another, the offender may be indicted in
either, for the offence is complete in both. Or he may be
indicted in England for larceny in Scotland, and carrying
the goods with him into England, or vice versa; or for re-
ceiving in one part of the United Kingdom goods that have
been stolen in another. But for robbery, burglary, and the
like, he can only be indicted where the fact was actually
committed; for though the carrying away and keeping of
the goods is a continuation of the original taking, and is
therefore larceny in the second county, yet it is not a rob-
bery or burglary in that jurisdiction.
When the grand jury have heard the evidence, if they
think it a groundless accusation, they used formerly to in-
dorse on the back of the bill, "ignoramus," or we know
nothing of it; intimating that though the facts might pos-
sibly be true, that truth did not appear to them. But now
they assert in England more absolutely, " not a true bill,"
or (which is the better way) " not found," and then the
party is discharged without further answer; but a fresh
bill may afterwards be preferred to a subsequent grand
jury. If they are satisfied of the truth of the accusation
they then indorse upon it, "a true bill," anciently, "billa
vera." [306] The indictment is then said to be found, and
the party stands indicted. But to find a bill there must at
756 MODES OF PROSECUTION. [BOOK IV.
least twelve of the jury agree, 5 for so tender is the law of
England of the lives of the subjects, that no man can be
convicted at the suit of the king of any capital offence un-
less by the unanimous voice of twenty-four of his equals
and neighbors; that is, by twelve at least of the grand jury,
in the first place, assenting to the accusation, and after-
wards by the whole petit jury, of twelve more, finding him
guilty upon his trial. But if twelve of the grand jury
assent, it is a good presentment, though some of the rest
disagree. And the indictment when so found is publicly
delivered into court. 6
Indictments must have a precise and sufficient certainty.
By statute 1 Hen. V. c. 5, all indictments must set forth the
Christian name, surname, and addition of the state, and
degree, mystery, town or place, and the county 7 of the
offender; and all this to identify his person. The time and
place are also to be ascertained by naming the day and
township in which the fact was committed; though a mis-
take in these points is in general not held to be material,
provided the time be laid previous to the finding of the indict-
ment, and the place to be within. the jurisdiction of the court,
unless where the place is laid not merely as a venue, but as
part of the description of the fact. But sometimes the time
may be very material, where there is any limitation in point
of time assigned for the prosecution of offenders; and in
case of murder, the time of the death must be laid within a
year and a day after the mortal stroke was given. The
offence itself must also be set forth with clearness and cer-
tainty, and in some crimes particular words of art must be
used, which are so appropriated by the law to express the
precise idea which it entertains of the offence, that no other
words, however synonymous they may seem, are capable of
doing it. [307] Thus, in treason the facts must be laid to
5. Clark's Crim. Proced., 110, 114. 7. Statutes of limitation do not
6. It must be returned into open hind the state unless expressly named,
court. Gardner v. People, 3 Scam. Statutes will be found, however, in
83; s. c., 20 111. 430: Aylesworth v. many states expressly limiting tli
People, 65 111. 301; Clark's Crim. time within which certain -offences
Proced., 115. must be prosecuted.
CHAP. XXIIL] MODES OF PROSECUTION. 757
be done " treasonably and against his allegiance,"
anciently, " proditorie et contra ligeantiae suae debit urn,"*
else the indictment is void. In indictments for murder,
it is necessary to say that the party indicted " murdered," not
" killed " or " slew," the other, which till the late statute was
expressed in Latin by the word " murdravit." In all indict-
ments for felonies the adverb " feloniously," " felonicc," must
be used, and for burglaries also " burglar iter,'' or in English,
"burglariously;" and all these to ascertain the intent. In
rapes, the word "rapnit" or "ravished," is necessary, and
must not be expressed by any periphrasis, in order to render
the cime certain. So in larcenies also, the words "felonice
cepit et asportavit, feloniously took and carried away," are
necessary to every indictment, for these only can express
the very offence. Also in indictments for murder the
length and depth of the wound should in general be ex-
pressed, in order that it may appear to the court to have
been of a mortal nature; but if it goes through the body,
then its dimensions are immaterial, for that is apparently
sufficient to have been the cause of the death. Also, where
a limb or the like is absolutely cut off, there such descrip-
tion is impossible. Lastly, in indictments, the value of the
thing which is the subject or instrument of the offence must
sometimes be expressed. In indictments for larcenies this
is necessary, that it may appear whether it be grand or
petit larceny, and whether entitled or not to the benefit of
clergy; in homicide of all sorts it is necessary, as the weapon
with which it is committed is forfeited to the king as a
deodand.
The remaining methods of prosecution are without any
previous finding by a jury, to fix the authorative stamp of
verisimilitude upon the accusation.
One of these by the common law was when a thief was taken with ihe
mainor, that is, with the thing stolen upon him in manu. For he might
8. Traitorously and contrary to the dure, pp. 137-326. The subject is too
duty of his allegiance. voluminous to be even abstracted here.
The form and requisites of indict- See, also, a summary of criminal pro-
ments will be found treated in chap- cedure in Wash. Crim. Law (3d Ed.),
ters 5-9 of Clark's Criminal Proce- 104-26'S.
758 MODES OF PROSECUTION. [BOOK IV.
when so detected flagrante deUcto be brought into court, arraigned, and
tried, without indictment. [308] [Repealed.]
The only species of proceeding at the suit of the king,
without a previous indictment or presentment by a grand
jury, now seems to be that of information.
III. Informations are of two sorts: first, those which are
partly at the suit of the king, and partly at that of a subject;
and secondly, such as are only in the name of the king. The
former are usually brought upon penal statutes, which in-
flict a penalty upon conviction of the offender, one part to
the use of the king and another to the use of the informer,
and are a sort of qui tarn actions only carried on by a crim-
inal instead of a civil process.
The informations that are exhibited in the name of the
king alone are also of two kinds : first, those which are truly
and properly his own suits, and filed ex officio by his own
immediate officer, the Attorney-General; secondly, those in
which, though the king is the nominal prosecutor, yet it is
at the relation of some private person or common informer;
and they are filed by the king's coroner and attorney in the
Court of King's Bench, usually called the master of the
crown-office, who is for this purpose the standing officer
of the public. The objects of the king's own prosecutions,
filled ex officio by his own Attorney-General, are properly
such enormous misdemeanors as peculiarly tend to disturb
or endanger his government, or to molest or affront him in
the regular discharge of his royal functions. [309] The
objects of the other species of informations filed by the
master of the crown-office upon the complaint or relation
of a private subject, are any gross and notorious misde-
meanors, riots, batteries, libels, and other immoralities of
an atrocious kind, not peculiarly tending to disturb the gov-
ernment (for those are left to the care of the Attorney-
General), but which, on account of their magnitude or
pernicious example, deserve the most public animadversion.
And when an information is filed, either thus or by the At-
torney-General ex officio, it must be tried by a petit jury of
the county where the offence arises; after which, if the de-
CHAP. XXIII. ] MODES OF PROSECUTION. 759
fendant be found guilty, the court must be resorted to for
his punishment.
But these informations (of every kind) are confined by
the constitutional law to mere misdemeanors only; 9 for
whenever any capital offence is charged, the same law re-
quires that the accusation be warranted by the oath of
twelve men before the party shall be put to answer it. [310]
There is one species of information still further regulated
by statute 9 Anne, c. 20, viz., those in the nature of a writ
of quo warranto, which was shown in the preceding book to
be a remedy given to the crown against such as had usurped
or intruded into any office or franchise. 1 [312] The modern
information tends to the same purpose as the ancient writ,
being generally made use of to try the civil rights of such
franchises, though it is commenced in the same manner as
other informations are, by leave of the court or at the will
of the Attorney-General, being properly a criminal prosecu-
tion, in order to fine the defendant for his usurpation, as
well as to oust him from his office, yet usually considered at
present as merely a civil proceeding.
These are all the methods of prosecution at the suit of
the king. There yet remains another, which is merely at
the suit of the subject, and is called an appeal.
IV. An appeal [abolished by statute], in the sense wherein it is here
used, does not signify any complaint to a superior court of an injustice
done by an inferior one, which is the general use of the word; but it
here means an original suit at the time of its first commencement. An
appeal, therefore, when spoken of as a criminal prosecution, denotes an
accusation by a private subject against another for some heinous crime
demanding punishment on account of the particular injury suffered,
rather than for the offence against the public. [See Ashford v. Thornton,
1 B. & Aid. 405 (1818).]
9. Clark's Crim. Proced., 127. By Grim. Proced., 107 ; Cooely's Const,
the U. S. Const, (amend, art. 5) "no Lira. (7th Ed.), 436.
person shall be held to answer for a In Michigan informations are in
capital or otherwise infamous crime general use instead of indictments,
unless on a presentment or indict- though the court may order the sum-
ment of a grand jury," etc.; and moning of a grand jury if deemed
many of the state constitutions con- necessary,
tain the same provision. Clark's 1. See ante.
760 PROCESS UPON AN INDICTMENT. [Boos IV.
CHAPTER XXIV.
OF PROCESS UPON AN INDICTMENT.
We have hitherto supposed the offender to be in custody
before the finding of the indictment, in which case he is
immediately (or as soon as convenience permits) to be ar-
raigned thereon. [318] But if he hath fled, or secretes him-
self, in capital cases, or hath not, in smaller misdemeanors,
been bound over to appear at the assises or sessions, still
an indictment may be preferred against him in his absence,
since, were he present, he could not be heard before the
grand jury against it. And if it be found, then process
must issue to bring him into court, for the indictment can-
not be tried unless he personally appears, according to the
rules of equity in all cases and the express provision of
statute- 28 Edw. III. c. 3, in capital ones, that no man shall
be put to death without being brought to answer by due
process of law.
The proper process on an indictment for any petit misde-
meanor or on a penal statute is a writ of venire facias, which
is in the nature of a summons to cause the party to appear.
And if- by the return to such venire it appears that the party
hath lands in the county whereby he may be distrained, then
a distress infinite shall be issued from time to time till he
appears. But if the sheriff returns that lie hath no lands
in his bailiwick, then upon his non-appearance a writ of capias
shall issue, which commands the sheriff to take his body and
have him at the next assises, and if he cannot be taken upon
the first capias, a second and third shall issue, called an alia a
and a pluries capias. [319] But on indictments for treason
or felony a capias is the first process. And so, in the case
of misdemeanors, it is now the usual practice for any judge
of the Court of King's Bench, upon certificate of an indict-
ment found, to award a writ of capias immediately, in order
to bring in the defendant. 1
1. A warrant issues in such case Crim. Proced., 22; Wash. Crim. Law
of course in this country. See Clark'a (3d -Ed.), 173.
CHAP. XXIV.] PKOCESS UPON AN INDICTMENT. 761
But if he absconds, and it is thought proper to pursue him to an out-
lawry, then a greater exactness is necessary. For in such case, after
the several writs have issued in a regular number, according to the
nature of the respective crimes, without any effect, the offender shall be
put in the exigent in order to his outlawry; that is, he shall be exacted,
proclaimed, or required to surrender, at five county courts. And if he
be returned guinto exactus, and does not appear at the fifth exaction or
requisition, then he is adjudged to be outlawed, or put out of the protec-
tion of the law; so that he is incapable of taking the benefit of it in any
respect, either by bringing actions or otherwise.
The punishment for outlawries upon indictments for misdemeanors is
the same as for outlawries upon civil actions, viz., forfeiture of goods
and chattels. But an outlawry in treason or felony amounts to a convic-
tion and attainder of the offence charged in the indictment, as much as
if the offender had been found guilty by his country. His life is, how-
ever, still under the protection of the law, and it is holden that no man
is entitled to kill him wantonly or willfully, but in so doing is guilty of
murder, unless it happens in the endeavor to apprehend him. [320]
762 OF ARRAIGNMENT. [BOOK IV.
CHAPTER XXV.
OF ARRAIGNMENT AND ITS INCIDENTS.
When the offender either appears voluntarily to an in-
dictment, or was before in custody, or is brought in upon
criminal process to answer it in the proper court, he is
immediately to be arraigned thereon, which is the fifth stage
of criminal prosecution. [322]
To arraign is nothing else but to call the prisoner to the
bar of the court, to answer the matter charged upon him
in the indictment. 1 The prisoner is to be called to the bar
by his name, and it is laid down in our ancient books that,
though under an indictment of the highest nature, he must
be brought to the bar without irons or any manner of
shackles or bonds, unless there be evident danger of an
escape, and then he may be secured with irons. But yet
in Layer's case, A. D. 1722, a difference was taken between
the time of arraignment and the time of trial, and accord-
ingly the prisoner stood at the bar in chains during the time
of his- arraignment. 2
When he is brought to the bar he is called upon by name
to hold up his hand, which, though it may seem a trifling
circumstance, yet is of this importance, that by the holding
up of his hand constat de persona, 3 and he owns himself to
be of that name by which he is called. [323] However, it is
not an indispensable ceremony, for, being calculated merely
for the purpose of identifying the person, any other
acknowledgment will answer the purpose as well; therefore
if the prisoner obstinately and contemptuously refuses to
hold up his hand, but confesses he is the person named, it is
fully sufficient.
1. Clark's Crim. Proeed., 365. he is freed from chains or fetters,
2. In Waite's Case, Leach, 34, 43, unless such restraint is necessary,
the prisoner at the time of his ar- Wash. Crim. Law (3d Ed.), 127;
raignment desired that his irons Clark's Crim. Proeed., 368.
might be taken off; but the court in- 3. It identifies the person. It is
formed him that they had no author- not customary with us. Clark's Crim.
ity for that purpose until the jury Proeed., 368.
were charged to try him. With us
CHAP. XXV.] OF ARRAIGNMENT. 763
Then the indictment is to be read to him distinctly in the
English tongue (which was law, even while all other pro-
ceedings were in Latin), that he may fully understand his
charge. After which it is to be demanded of him whether
he be guilty of the crime whereof he stands indicted, or not
guilty. 4 By the old common law the accessary could not
be arraigned till the principal was attainted, unless he chose
it, for he might waive the benefit of the law, and, therefore,
principal and accessary might, and may still be arraigned,
and plead, and also be tried together. But otherwise, if the
principal had never been indicted at all and stood mute,
had challenged above thirty-five jurors peremptorily, had
claimed the benefit of clergy, had obtained a pardon, or had
died before attainder, the accessary in any of these cases
could not be arraigned, for non constitit 5 whether any
felony was committed or no, till the principal was attainted ;
and it might so happen that the accessary should be con-
victed one day, and the principal acquitted the next, which
would be absurd. However, this absurdity could only hap-
pen where it was possible that a trial of the principal might
be had subsequent to that of the accessary, and therefore
the law still continues that the accessary shall not be tried
so long as the principal remains liable to be tried hereafter.
But by statute 1 Anne, c. 9, if the principal be once con-
victed, and before attainder (that is, before he receives judg-
ment of death or outlawry) he is delivered by pardon, the
benefit of clergy, or otherwise, or if the principal stands
mute, or challenges peremptorily above the legal number of
jurors so as never to be convicted at all: in any of these
cases, in which no subsequent trial can be had of the prin-
cipal, the accessary may be proceeded against as if the prin-
cipal felon had been attainted, for there is no danger of
future contradiction. [324] And upon the trial of the ac-
cessary, as well after as before the conviction of the prin-
cipal, it seems to be the better opinion, and founded on the
true spirit of justice, that the accessary is at liberty, if he
can, to controvert the guilt of his supposed principal, and
4. Clark's Grim. Proced., 368. 5. It did not appear.
764 OF ARRAIGNMENT. [BOOK IV.
to prove him innocent of the charge, as well in point of fact
as in point of law.
When a criminal is arraigned, he either stands mute or
confesses the fact, which circumstances we may call inci-
dents to the arraignment;, or else he pleads to the indict-
ment, which is to be considered as the next stage of proceed-
ings. But first let us observe these incidents to the arraign-
ment, of standing mute or confession.
I. Regularly a prisoner is said to stand mute when, being arraigned
for treason or felony, he either, 1. Makes no answer at all; or 2. Answers
foreign to the purpose, or with such matter as is not allowable, and
will not answer otherwise; or 3. Upon having pleaded not guilty, re-
fuses to put himself upon the country. If he says nothing, the court
ought ex officio to impanel a jury to inquire whether he stands obstinately
mute, or whether he be dumb ex visitatione Dcif If the latter appears to
be the case, the judges of the court (who are to be of counsel for the
prisoner, and to see that he hath law and justice) shall proceed to the
trial, and examine all points as if he had pleaded not guilty. But whether
judgment of death can be given against such a prisoner who hath never
pleaded, and can say nothing in arrest of judgment, is a point yet un-
determined. [325]
If he be found to be obstinately mute (which a prisoner hath been
held to be that hath cut out his own tongue), then, if it be on an indict-
ment of high treason, it hath long been clearly settled that standing
mute is an equivalent to a conviction, and he shall receive the same
judgment and execution. And as in this the highest crime, so also in
the lowest species of felony, viz., in petit larceny and in all misdemeanors,
standing mute hath always been equivalent to conviction. But upon
appeals or indictments for other felonies, or petit treason, the prisoner
was not by the ancient law looked upon as convicted so as to receive
judgment for the felony, but should for his obstinacy have received the
terrible sentence of penance, or peinc (which was probably nothing more
than a corrupted abbreviation of prisonc) forte et dureJ
The English judgment of penance for standing mute was as follows:
that the prisoner be remanded to the prison from whence he came, and
put into a low dark chamber, and there be laid on his back on the bare
floor, naked, unless where decency forbids; that there be placed upon
his body as great a weight of iron as he could bear, and more; that he
have no sustenance, save only, on the first day three morsels of the worst
bread, and on the second day three draughts of standing water, that
should be nearest to the prison door; and in this situation this should
be alternately his daily diet till he died, or (as anciently the judgment
ran ) till he answered. [327]
6. By visitation of God. 7. Strong and hard.
CHAP. XXV.] OF ARRAIGNMENT. 765
The law was, that by standing mute and suffering this heavy penance
the judgment, and of course the corruption of the blood and escheat of
the 1-ands, were saved in felony and petit treason, though not the for-
feiture of the goods, and therefore this lingering punishment was prob-
ably introduced in order to extort a plea, without which it was held
that no judgment of death could be given, and so the lord lost his
escheat. [329] But very lately, to the honor of our laws, it hath been
enacted by statute 12 Geo. III. c. 20, that every person who, being ar-
raigned for felony and piracy, shall stand mute or not answer directly
to the offence, shall be convicted of the same, and the same judgment
and execution (with all their consequences in every respect) shall be
thereupon awarded as if the person had been convicted by verdict or con-
fession of the crime. 8
II. The other incident to arraignments, exclusive of the
plea, is the prisoner's actual confession of the indictment.
Upon a simple and plain confession the court hath nothing
to do but to award judgment; but it is usually very back-
ward in receiving and recording such confession, out of
tenderness to the life of the subject, and will generally
advise the prisoner to retract it and plead to the indict-
ment. 9
Approvement is when a person indicted of treason or felony and ar-
raigned for the same doth confess the fact before plea pleaded, and ap-
peals or accuses others, his accomplices, in the same crime, in order to
obtain his pardon. [330] In this case he is called an approver or prover,
probator, and the party appealed or accused is called the appellee. Such
approvement can only be in capital offences, and it is, as it were, equiva-
lent to an indictment, since the appellee is equally called upon to answer
it. And if he hath no reasonable and legal exceptions to make to the
person of the approver, which indeed are very numerous, he must put
himself upon his trial, either by battle or by the country, and if van-
quished or found guilty must suffer the judgment of the law, and the
approver shall have his pardon ex debito justitiae. 1 On the other hand, if
the appellee be conqueror or acquitted by the jury, the approver shall
receive judgment to be hanged, upon his own confession of the indict-
ment; for the condition of his pardon has failed, viz., the conviction of
some other person, and therefore his conviction remains absolute.
8. In this country, when the de- land. See Clark's Grim. Proced., 369.
fendant refuses to plead, a plea of 9. See Wash. Crim. Law (3d Ed.),
"not guilty" is entered for him: and 132.
such is now the practice in Eng- 1. As a debt to justice.
766 OF ARRAIGNMENT. [Boos IV.
But it is purely in the discretion of the court to permit the approved
thus to appeal or not and, in fact, this course of admitting approvements
hath been long disused.
It hath been usual for the justices of the peace, by whom
any person charged with felony are committed. to gaol, to
admit some one of their accomplices to become a witness
(or, as it is generally termed, king's evidence) against his
fellows, upon an implied confidence, which the judges of
gaol-delivery have usually countenanced and adopted, that
if such accomplice makes a full and complete discovery of
that and of all other felonies to which he is examined by
the magistrate, and afterwards gives his evidence without
prevarication or fraud, he shall not himself be prosecuted
for that or any other previous offence of the same degree. 2
2. bee, however, as to other previ- tice stated in the text is common in
ous offences of the same degree, Mrs. this country.
Rudd's Case, Cowp. 341. The prac-
CHAP. XXVI.] OF PLEA AND ISSUE. 767
CHAPTER XXVL
OF PLEA, AND ISSUE.
The plea of the prisoner, or defensive matter alleged by
him on his arraignment, if he does not confess or stand
mute, is either, 1. A plea to the jurisdiction; 2. A demurrer;
3. A plea in abatement; 4. A special plea in bar; or 5. The
general issue. [332]
I. A plea to the jurisdiction is where an indictment is
taken before a court that hath no cognizance of the offence,
as if a man be indicted for a rape at the sheriff's tourn, or
for treason at the quarter sessions ; in these or similar cases
he may except to the jurisdiction of the court without
answering at all to the crime alleged. 1 [333]
II. A demurrer to the indictment is incident to criminal
cases as well as civil when the fact alleged is allowed to be
true, but the prisoner joins issue upon some point of law in
the indictment, by which he insists that the fact, as stated,
is no felony, treason, or whatever the crime is alleged to
be. 2 [334] If on demurrer the point of law be adjudged
against the prisoner, in such case he shall be directed and
received to plead the general issue, not guilty, after a de-
murrer determined against him. [This rule holds good in
indictments for felonies, but not for misdemeanors.]
Demurrers to indictments are seldom used, since the same
advantages may be taken upon a plea of not guilty, or after-
wards in arrest of judgment, when the verdict has estab-
lished the fact.
III. A plea in abatement is principally for a misnomer, a
wrong name or false addition to the prisoner. As, if Jam ex
Allen, gentleman, is indicled by the name of John Allen,
esquire,, he may plead that he has the name of James and not
of John, and that he is a gentleman and not an esquire.
1. Seldom used, as the objection A motion to quash the indictment
may be taken otherwise. Clark's is more common than a demurrer.
Grim. Proced., 375. See Clark's Grim. Proced., 362.
2. Clark's Crim. Proced., 379.
768 OF PLEA AND ISSUE. [BOOK IV.
And if either fact is found by a jury, then the indictment
shall be abated, as writs or declarations may be in civil
actions. [335] But in the end there is little advantage
accruing to the prisoner by means of these dilatory pleas,
because if the exception be allowed a new bill of indictment
may be framed, according to what the prisoner in his plea
avers to be his true name and addition. For it is a rule
upon all pleas in abatement that he who takes adva'ntage
of a flaw must at the same time show how it may be
amended. 3
IV. Special pleas in bar go to the merits of the indict-
ment, and give a reason why the prisoner ought not to answer
it at all, nor put himself upon his trial for the crime alleged.
These are of four kinds: a former acquittal, a former con-
viction, 4 a former attainder, or a pardon. There are many
other pleas which may be pleaded in bar of an appeal, but
these are applicable to both appeals and indictments.
1. First, the plea of autrefoits acquit, or a former acquit-
tal, is grounded on this universal maxim of the common
law of England, that no man is to be brought into jeopardy
of his life more than once for the same offence. 5 And hence
it is allowed as a consequence, that when a man is once
fairly found not guilty upon any indictment or other prose-
cution, before any court having competent jurisdiction of
the offence, he may plead such acquittal in bar of any subse-
quent accusation for the same crime.
2. Secondly, the plea of autrefoits convict, or a former con-
viction for the same identical crime, though no judgment
was ever given, or perhaps will be (being suspended by the
benefit of clergy or other causes), is a good plea in bar to
an indictment. [336] And this depends upon the same prin-
ciple as the former, that no man .ought to be twice brought
in danger of his life for one and the same crime. Hereupon
it has been held that a conviction of manslaughter on an
appeal or an indictment is a bar even in another appeal, and
3. See, generally, Clark's Crira. 5. A man is in jeopardy when a
Proc., 377. jury has been sworn to try the cause.
4,. Clark's Crim. . Proced., 382. Id., 384.
flunranteed by constitution in this
country.
CHAP. XXVI.] OF PLEA AND ISSCE. 709
much more in an indictment of murder, for the fact prose-
cuted is the same in both, though the offences differ in
coloring and in degree.
3. Thirdly, the plea of autrefoits attaint, or a former attainder," which
is a good plea in bar, whether it be for the same or any other felony.
For wherever a man is attainted of felony, by judgment of death either
upon a verdict or confession, by outlawry, or heretofore by abjuration,
and whether upon an appeal or an indictment, he may plead such at-
tainder in bar to any subsequent indictment or appeal for the same or
for any other felony. And this because, generally, such proceeding on a
second prosecution cannot be to any purpose, for the prisoner is dead
in law by the first attainder, his blood is already corrupted, and he hath
forfeited all that he had, so that it is absurd and superfluous to endeavor
to attaint him a second time.
4. Lastly, a pardon may be pleaded in bar as at once de-
stroying the end and purpose of the indictment by remitting
that punishment which the prosecution is calculated to in-
flict. 7 [337] There is one advantage that attends pleading a
pardon in bar or in arrest of judgment before sentence is
passed, which gives it by much the preference to pleading
it after sentence or attainder. This is, that by stopping the
judgment it stops the attainder and prevents the corruption
of the blood, which, when once corrupted by attainder, can-
not afterwards be restored otherwise than by act of parlia-
ment. But as the title of pardons is applicable to other
stages of prosecution, and they have their respective force
and efficacy as well after as before conviction, outlawry, or
attainder, I shall therefore reserve the more minute con-
siderations of them till I have gone through every other
title except only that of execution. [338]
In criminal prosecutions in favorem vitae* as well upon
appeal as indictment, when a prisoner's plea in bar is found
against him upon issue tried by a jury, or adjudged against
6. Not applicable to this country. although it cannot affect vested
7. Clark's Crim. Proced., 407. rights, absolves the party from all the
"A pardon to be valid must be de- legal consequences . of his crime."
livered and accepted; it may be par- Wash. Crim. Law (3d Ed.). 204; I.o-
tial or on condition precedent or sub- gan v. United States, 144 U. S. 2^-1;
sequent; it is voidable for fraud on Edwards v. Com., 78 Va. 39.
the pardoning power. A full pardon, 8. In favor of life.
49 V Av,
770 OF PLEA AND ISSUE. [BOOK IV.
him in point of law by the court, still he shall not be con-
cluded or convicted thereon, but shall have judgment of
respondeat ouster, 9 and may plead over to the felony the
general issue, not guilty.
V. The general issue, or plea of not guilty, upon which
plea alone the prisoner can receive his final judgment of
death. In case of an indictment of felony or treason there
can be no special justification put in by way of plea. As
on an indictment for murder a man cannot plead that it was
in his own defence against a robber on the highway or a
burglar, but he must plead the general issue, not guilty,
and give this special matter in evidence. For (besides that
these pleas do in effect amount to the general issue, since,
if true, the prisoner is most clearly not guilty) as the facts
in treason are laid to be done proditorie et contra liycantiae
suae debitum* and in felony that the killing was done
felonice, these charges of a traitorous or felonious intent are
the points and very gist of the indictment, and must be
answered directly by the general negative, not guilty; and
the jury upon the evidence will take notice of any defensive
matter, and give their verdict accordingly as effectually as
if it were or could be specially pleaded. [339] So that this
is upon all accounts the most advantageous plea for the
prisoner.
When the prisoner hath thus pleaded not guilty (-non
culpabilis, or nient culpable), which was formerly used to be
abbreviated upon the minutes thus: " non (or nicnt) cuL."
the clerk of the assise or clerk of the arraigns, on behalf of the
crown, replies that the prisoner is guilty, and that he is ready
to prove him so. This is done by two monosyllables in the
same spirit of abbreviation, " cul. prit.," which signifies first
that the prisoner is guilty (cul. culpable, or culpabilis), and
then that the king is ready to prove him so (prit praexto sum,
or paratus verificare). This is therefore a replication on
behalf of the king viva voce at the bar. By this replication
the king and 'the prisoner are therefore at issue. 2
9. Let him answer over. fact and circumstance necessary to
1. Traitorously and contrary to the prove the defendant guilty of the
duty of his allegiance. crime charged. Clark's Crim. Prooed.,
2. A plea of not guilty denies every 408.
CHAP. XXVI.] . OF PLEA AND ISSUE. 771
The joining of issue, which, though now usually entered
on the record, is not otherwise joined in any part of the
proceedings, seems to be clearly the meaning of this obscure
expression, which has puzzled our most ingenious etymolo-
gists, and is commonly understood as if the clerk of the
arraigns, immediately on plea pleaded, had fixed an oppro-
brious name on the prisoner by asking him, "culprit, how
wilt thou be tried? ' For immediately upon issue joined it
is inquired of the prisoner by what trial he will make his
innocence appear. [340] This form has at present refer-
ence to appeals and approvements only wherein the appellee
has his choice either to try the accusation by battle or by
jury. [341] But upon indictments, since the abolition of
ordeal, there can be no other trial but by jury, per pals, or
by the country; and therefore, if the prisoner refuses to put
himself upon the inquest in the usual form, that is, to
answer that he will be tried by God and the country, if a
commoner, and if a peer, by God and his peers, the in-
dictment, if in treason, is taken pro confcsso; and the pris-
oner, in cases of felony, is adjudged to stand mute, and if
he perseveres in his obstinacy shall now be convicted of
the felony. 3
When the prisoner has thus put himself upon his trial,
the clerk answers in the humane language of the law, which
always hopes that the party's innocence rather than his
guilt may appear, " God send thee a good deliverance."
And then they proceed as soon as conveniently may be to
the trial.
3. Plea of " not guilty " is now en tered for him.
772 OF TRIAL AND CONVICTION. [BOOK I\ r .
CHAPTER XXVII.
OF TRIAL AND CONVICTION.
I. The most ancient species of trial was that by ordeal, which was
peculiarly distinguished by the appellation of judicium Det.i and some-
times vulgaris purgatio? to distinguish it from the canonical purgation,
which was by the oath of the party. [342] This was of two sorts, either
fire-ordeal or water-ordeal; the former being confined to persons of
higher rank, the latter to the common people. Both these might be per-
formed by deputy, but the principal was to answer for the success of
the trial, the deputy only venturing some corporal pain for hire, or per-
haps for friendship. Fire-ordeal was performed either by taking up in
the hand, unhurt, a piece of red-hot iron of one, two, or three pounds
weight, or else by walking barefoot and blindfold over nine red-hot
ploughshares laid lengthwise at unequal distances; and if the party es-
caped being hurt he was adjudged innocent; but if it happened otherwise,
as without collusion it usually did, he was then condemned as guilty. [343]
Water-ordeal was performed either by plunging the bare arm up to
the elbow in boiling water and escaping unhurt thereby, or by casting
the person suspected into a river or pond of cold water; and if he
floated therein without any action of swimming, it was deemed an evi-
dence of his guilt, but if he sank he was acquitted.
II. Another species of purgation, somewhat similar to the former, but
probably sprung from a presumptuous abuse of revelation in the ages
of dark superstition, was the corsned, or morsel of execration, being a
piece of cheese or bread of about an ounce in weight, which was conse-
crated with a form of exorcism, desiring of the Almighty that it might
cause convulsions and paleness and find no passage if the man was
really guilty, but might turn to health and nourishment if he was inno-
cent. [345]
These two antiquated methods of trial were principally
in use among our Saxon ancestors. The next, which still
remains in force, though very rarely in use, owes its intro-
duction among us to the princes of the Norman line, and
that is,
III. The trial by battle, duel, or single combat [abolished], which was
another species of presumptuous appeals to Providence, under an ex-
pectation that Heaven would unquestionably give the victory to the in-
nocent or injured party. The trial by battel may be demanded at the
1. Judgment of God. 2. Common purgation.
CHAP. XXVIL] OF TRIAL AND CONVICTION-. 773
election of the appellee in either an appeal or an approvement; and it
is carried on with equal solemnity as that on a writ of right, but with
this difference, that there each party might hire a champion, but here
they must fight in their proper persons. 3
IV. The fourth method of trial used in criminal cases is that by the
peers of Great Britain, in the Court of Parliament, or the Court of the
Lord High Steward, when a peer is capitally indicted [for treason or
r'elony or a misprison of either] ; for in case of an appeal [or other
criminal prosecution] a peer shall be tried by jury. [348] In the method
and regulation of its proceedings it differs little from the trial per patriam
or by jury, except that no special verdict can be given in the trial of a
peer, and except also that the peers need not all agree in their verdict;
but the greater number, consisting of twelve at the least, will conclude
and bind the minority. [349]
V. The trial by jury, or the country, per patriam, is also
that trial by the peers of every Englishman which, as the
grand bulwark of his liberties, is secured to him by the
Great Charter: "Nullns liber homo capiatur, vel im-
prisonetur, aut exulct, aut aliquo olio modo dcstruatiir, nisi
per legale indicium parium suorum, vel per legcm terrae." 4
The antiquity and excellence of this trial for the settling
of civil property has before been explained at large. And
it will hold much stronger in criminal cases, ^ince in times
of difficulty and danger more is to be apprehended from the
violence and partiality of judges appointed by the crown in
suits between the king and the subject than in disputes be-
tween one individual and another to settle the metes and
boundaries of private property.
When a prisoner on his arraignment has pleaded not
guilty, and for his trial hath put himself upon the country,
which country the jury are, the sheriff of the county must
return a panel of jurors, liberos et legales homines, de
vicineto; 5 that is, freeholders, without just exception, and of
the visne or neighborhood, which is interpreted to be of the
count} 7 where the fact is committed. [350]
In cases of high treason, whereby corruption of blood may
3. See Atshford v. Thornton, 1 B. & judgment of his peers or by the law
Aid. 405 (1818). of the land.
4. No freeman shall be taken, or 5. Free and lawful men of the
imprisoned, or exiled, or in any other neighborhood.
way destroyed, unless by the legal
774 OF TRIAL AND CONVICTION. [BooK IV.
ensue (except treason in counterfeiting the king's coin or
seals), or misprision of such treason, it is enacted by statute
7 W. III. c. 3, that the prisoner shall have a copy of the
indictment (which includes the caption), but not the names
of the witnesses, five days at least before the trial, that is,
upon the true construction of the act, before his arraign-
ment, for then is the time to take any exceptions thereto,
by way of plea or demurrer; that he shall also have a copy
of the panel of jurors two days before his trial; and that he
shall have the same compulsive process to bring in his wit-
nesses for him as was usual to compel their appearance
(i</<iinst him. [351] And by statute 7 Anne, c. 21 (which did
not take place till after the decease of the late Pretender),
all persons indicted for high treason or misprision thereof
shall have not only a copy of the indictment, but a list of
all the witnesses to be produced and of the jurors im-
panelled, with their professions and places of abode, de-
livered to him ten days before the trial, and in the presence
of two witnesses, the better to prepare him to make his
challenges and defence. [352] But this last act, so far as
it affected indictments for the inferior species of high
treason respecting the coin and the royal seals, is repealed
by the statute 6 Geo. III. c. 53, else it had been impossible
to have tried those offences in the same circuit in which
they are indicted; for ten clear days between the finding
and the trial of the indictment will exceed the time usually
allotted for any session of oyer and terminer. And no per-
son indicted for felony is, or (as the law stands) ever can
be, entitled to such copies before the time of his trial. 6
When the trial is called on, the jurors are to be sworn,
as they appear, to the number of twelve, unless they are
challenged by the party.
Challenges may here be made, either on the part of the
king or on that of the prisoner, and either to the whole
6. In this country the defendant is aid of counsel. Wash. Crim. Law
by statute or constitution generally (3d Ed.), 188; Cooley's Const. Lira,
entitled to copies in every case; he (7th Ed.), 47 and note; Clark's
is also entitled to compulsory process Proced., 428.
to- bring in his witnesses and to the
CHAP. XXVII.] OF TRIAL AND CONVICTION. 775
array or to the separate polls, for the very same reasons
that they may be made in civil causes. 7
Challenges for cause may be without stint in both crim-
inal and civil trials. [353] But in criminal cases, or at least
in .capital ones, there is, 4 iw favorem vitae, allowed to the
prisoner an arbitrary and capricious species of challenge to
a certain number of jurors, without showing any cause at
all, which is called a peremptory challenge. This privilege
of peremptory challenges, though granted to the prisoner,
is denied to the king by the statute 33 Edw. I. st. 4, which
enacts that the king shall challenge no jurors without as-
signing a cause certain, to be tried and approved by the
court. However, it is held that the king need not assign
his cause of challenge till all the panel is gone through, and
unless there cannot be a full jury without the person so
challenged. And then, and not sooner, the king's counsel
must show the cause, otherwise the juror shall be sworn.
The peremptory challenges of the prisoner must, however,
have some reasonable boundary, otherwise he might never
be tried. [354] This reasonable boundary is settled by the
common law to be the number of thirty-five, that is, one
under the number of three full juries. And it dealt with
one who peremptorily challenges above thirty-five, and will
not retract his challenge, as with one who stands mute or
refuses his trial, by sentencing him to the peine forte et dure
in felony, and by attainting him in treason. And so the law
stands at this day with regard to treason of any kind.
But by statute 22 Hen. VIII. c. 14 (which, with regard to
felonies, stands unrepealed by statute 1 & 2 Ph. & M. c. 10),
no person arraigned for felony can be admitted to make any
more than twenty peremptory challenges. 8 But how if the
prisoner will peremptorily challenge twenty-one, what shall
be done ? The old opinion was that judgment of pe.ine forte
et dure should be given, as where he challenged thirty-six
at the common law; but the better opinion seems to be that
such challenge shall only be disregarded and overruled.
7. See ante. See, also, Clarke's Wholly regulated by statute in this
Crim. Proced., 438-455. country. Consult the statutes and
8. See Clark's Crim. Proced., 449. local works on Practice.
77G OF TRIAL AND CONVICTION. [BOOK IV.
If. by reason of challenges or the default of the jurors, a
sufficient number cannot be had of the original panel, a tales
may be awarded, as in civil causes, till the number of twelve
is sworn, * ' well and truly to try, and true deliverance make,
between our sovereign lord the king and the prisoner whom
they have in charge, and a true verdict to give, according
to their evidence." [355]
When the jury is sworn, if it be a cause of any conse-
quence, the indictment is usually opened, and the evidence
marshalled, examined, and enforced by the counsel for the
crown or prosecution. But it is a settled rule at common
law that no counsel shall be allowed a prisoner upon his
trial upon the general issue in any capital crime, unless
some point of law shall arise proper to be debated. The
judges themselves are so sensible of this defect in the law
that they never scruple to allow a prisoner counsel to in-
struct him what question to ask, or even to ask questions
for him, with respect to matters of fact; for as to matters of
law arising on the trial, they are entitled to the assistance
of counsel. [356] But, lest this indulgence should be inter-
cepted by superior influence in the case of state-criminals,
the legislature has directed by statute 7 W. III. c. 3, that
persons indicted for such high treason as works a corrup-
tion of the blood or misprision thereof (except treason in
counterfeiting the king's coin or seals) may make their full
defence by counsel, not exceeding two, to be named by the
prisoner and assigned by the court or judge; and the same
indulgence, by statute 20 Geo. II. c. 30, is extended to parlia-
mentary impeachments for high treason, which were ex-
cepted in the former act. 9
The doctrine of evidence upon pleas of the crown is, in
most respects, the same as that upon civil actions. 1 There
are, however, a few leading points wherein, by several stat-
utes and resolutions, a difference is made between civil and
criminal evidence.
9. Counsel are now allowed in all victed of treason unless on the testi-
cases, both in the United States and mony of two witnesses to the same
in England. overt act or on confession in open,
1. Art. 3, sec. 3, U. S. Const., pro- court."
vides that " no person shall be con-
CHAP. XXVIL] OF TRIAL AND CONVICTION. 777
First, in all cases of. high treason, petit treason, and mis-
prision of treason, by statutes 1 Edw. VI. c. 12, and 5 & 6
Edw. VI. c. 11, two lawful witnesses are required to convict
a prisoner; 2 unless he shall willingly and without violence
confess the same. By statute 7 W. III. c. 3, 2, in posecu-
tions for those treasons to which that act extends [high trea-
son or misprision of high treason], the same rule (of requir-
ing tivo witnesses) is again enforced, with this addition, that
the confession of the prisoner, which shall countervail the
necessity of such proof, must be in open court. [357] In the
construction of which act it hath been holden that a confes-
sion of the prisoner, taken out of court, before a magistrate
or person having competent authority to take it, and proved
by two witnesses, is sufficient to convict him of treason.
But hasty, unguarded confessions, made to persons having
no such authority, ought not to be admitted as evidence
under this statute. And, indeed, even in cases of felony at
the common law they are the weakest and most suspicious
of all testimony, ever liable to be obtained by artifice, false
hopes, promises of favor, or menaces, seldom remembered
accurately or reported with due precision, and incapable in
their nature of being disproved by other negative evidence.
By the same statute 7 W. III. it is declared that both wit-
nesses must be to the same overt act of treason, or one to
one overt act, and the other to another overt act of the same
species of treason, and not of distinct heads or kinds, and no
evidence shall be admitted to prove any overt act not ex-
pressly laid in the indictment. But in almost every other
accusation one positive witness is sufficient.
In cases of indictments for perjury one witness is not
allowed to convict a man, because then there is only one
oath against another. 3 [358] In cases of treason, also, there
is the accused's oath of allegiance to counterpoise the in-
formation of a single witness, and that may perhaps be one
2. See the subject of Evidence, one witness and other additional corn-
treated in volume 2 of this series, petent evidence sufficient to overthrow
S^e, generally, Chamberlayne's great the oath of defendant. Wash. Grim,
work on this subject. Law (3d Ed.), 223.
3. There must be two witnesses or
778 OF TRIAL AND CONVICTION. [BOOK IV.
reason why the law requires a double testimony to convict
him; though the principal reason undoubtedly is to secure
the subject from being sacrificed to fictitious conspiracies,
which have been the engines of profligate and crafty poli-
titions in all ages.
Secondly, though from the reversal of Colonel Sidney's at-
tainder by act of parliament in 1689 it may be collected that
the mere similitude of handwriting in two papers shown to
a jury, without other concurrent testimony, is no evidence
that both were written by the same person, yet undoubtedly
the testimony of witnesses well acquainted with the party 's
hand, that they believe the paper in question to have been
written by him, is evidence to be left to a jury. 4
FourtMy, all presumptive evidence of felony should be
admitted cautiously, for the law holds that it is better that
ten guilty prisoners escape than that one innocent suffer.
And Sir Matthew Hale in particular lays, down two rules
most prudent and necessary to be observed: 1. Never to
convict a man for stealing the goods of a person unknown,
merely because he will give no account how he came by.
them, unless an actual felony be proved of such goods; and
2. Never to convict any person of murder or manslaughter
till at least the body be found dead, on account of two in-
stances he mentions, where persons were executed for the
murder of others who were then alive but missing. 5 [359]
Lastly, it was an ancient and commonly received practice,
that as counsel was not allowed to any prisoner accused of
a capital crime, so neither should he b suffered to exculpate
himself by the testimony of any witnesses. But by the
statute 7 W. III. c. 3 [the accused was allowed in his defence
to examine witnesses upon oath] in cases of treason within
the act; and it was afterwards declared by statute 1 Anne,
4. But the proof of handwriting is corpus delicti, or the fact of the corn-
not evidence in high treason, unless mission of the crime must be proved
the papers are found in the custody before attempting to fasten its oom-
of the prisoner. See, generally, as mission upon the defendant. It may,
to expert evidence on handwriting, however, be established by circum-
Rogers' Expert Testimony and Law- stantial evidence. Wash. Crim. Law
Bon's Expert Testimony. (3d Ed.), 221; 1 Bish. Crim. Proced.
5. In all criminal prosecutions the (4th Ed.) 3 1056 et seq.
CHAP. XXVII.] OF TRIAL AND COXVICTIOW. 779
st. 2, c. 9, that in all cases of treason and felony all witnesses
for the prisoner should be examined upon oath in like
manner a? the witnesses against him. [360]
When the evidence on both sides is closed, and indeed
when any evidence hath been given, the jury cannot be dis-
charged (unless in cases of evident necessity) till they have
given in their verdict, but are to consider of it, and deliver
it in, with the same forms as upon civil causes; only they
cannot, in a criminal case which touches life or member,
give a privy verdict. But the judges may adjourn while
the jury are withdrawn to confer, and return to receive the
verdict in open court. And such public or open verdict
may be either general, guilty, or not guilty, or special, set-
ting forth all the circumstances of the case, and praying
the judgment of the court whether, for instance, on the facts
stated, it be murder, manslaughter, or no crime at all. 6 [361]
This is where they doubt the matter of law, and therefore
choose to leave it to the determination of the court, though
they have an unquestionable right of determining upon all
the circumstances, and finding a general verdict, if they
think proper so to hazard a breach of their oaths. Yet in
many instances where, contrary to evidence, the jury have
found the prisoner guilty, their verdict hath been mercifully
set aside, and a new trial granted by the Court of King's
Bench. But there hath yet been no instance of granting a
new trial where the prisoner was acquitted upon the first. 7
If the jury therefore find the prisoner not guilty he is
then forever quit and discharged of the accusation, except
he be appealed of felony within the time limited by law.
And upon such his acquittal or discharge for want of prose-
cution he shall be immediately set at large without payment
6. Very rare, but allowable unless unconstitutional; and it is also allowed
prohibited by statute. Clark's Crim. by statute in case of an acquittal by
Proced., 488 and cases cited. the jury on the facts for the purpose
7. " By statute in many of the of obtaining and settling questions of
states a writ of error or appeal is law but not for the purpose of ob-
allowed the state from an adverse taining a new trial." Clark's Crim.
judgment on motion to quash or de- Proced., 393 and note, where the cases
murrer, or motion in arrest of judg- are collected.
ment or where a statute has been held
780 OF TRIAL AND CONVICTION. [BOOK IV.
of any fee to the gaoler. [362] But if the jury find him
guilty, he is then said to be convicted of the crime whereof
he stands indicted, which conviction may accrue two
ways, either by his confessing the offence and pleading
guilty, or by his being found so by the verdict of his
country.
When the offender is thus convicted there are two col-
lateral circumstances that immediately arise.
(1) On a conviction (or even upon an acquittal where there was a
reasonable ground to prosecute, and in fact a bona fide prosecution) for
any grand or petit larceny or other felony, the reasonable expenses of
prosecution, and also, if the prosecutor be poor, a compensation for his
trouble and loss of time, are by statutes 25 Geo. II. c. 36, and 18 Geo.
III. c. 19, to be allowed him out of the county stock if he petitions the
judge for that purpose; and by statute 27 Geo. II. c. 3, explained by the
same statute, 18 Geo. III. c. 19, all persons appearing upon recognizance
or subpoena to give evidence, whether any indictment be preferred or
no, and as well without conviction as with it, are entitled to be paid
their charges, with a further allowance (if poor) for their trouble and
loss of time. 8
(2) On a conviction of larceny in particular, the prose-
cutor shall have restitution of his goods, by virtue of the
statute 21 Hen. VIII. c. 11. For by the common law there
was no restitution of goods upon an indictment, because it
is at the suit of the king only, and therefore the party was
enforced to bring an appeal of robbery in order to have his
goods again. And it is now usual for the court, upon the
conviction of a felon, to order, without any writ, immediate
restitution of such goods as are brought into court to be
made to the several prosecutors. [363] Or else, secondly,
without such writ of restitution, the party may peaceably
retake his goods wherever he happens to find them, unless
a new property be fairly acquired therein. Or, lastly, if the
felon be convicted and pardoned, or be allowed his clergy,
the party robbed may bring his action of trover against
him for his goods, and recover a satisfaction in damages.
But such action lies not before prosecution, for so felonies
8. With us costs and expenses are entirely a matter of statute.
CHAP. XXVII.] OF TRIAL AND CONVICTION. 781
would be made up and healed; and also recaption is unlaw-
ful if it be done with intention to smother or compound the
larceny, it then becoming the heinous offence of theft-bote,
as was mentioned in a former chapter.
It is not uncommon, when a person is convicted of a mis-
demeanor which principally and more immediately affects
some individual, as a battery, imprisonment, or the like, for
the court to permit the defendant to speak with the prose-
cutor before any judgment is pronounced, and if the prose-
cutor declares himself satisfied to inflict but a trivial pun-
ishment. .This is done to reimburse the prosecutor his
expense and make him some private amends without the
trouble and circuity of a civil action. But it surely is a
dangerous practice. 9
9. The compounding of a felony is bidden by statute. See Rev. Stat.
in itself a crime; but some (not all) 111. 1874, 358, 43; Washburn Crim.
misdemeanors may be compounded or Law (3d Ed.), 13; McClain's Crim.
settled. In some states the compound- Law, 939; Com. v. Pease, 16 Mass.
ing of any crime is very properly for- 92. ,
782 OF BENEFIT OF CLERGY. [Boox IV.
CHAPTER XXVIII.
OF THE BENEFIT OF CLERGY. 1
After trial and conviction, the judgment of the court regularly fol-
lows, unless suspended or arrested by some intervening circumstance;
of which the principal is the benefit of clergy ;2 a title of no small curios-
ity as well as use; and concerning which I shall therefore inquire: 1.
Into its original, and the various mutations which this privilege of clergy
has sustained. 2. To what persons it is to be allowed at this day. 3.
In what cases. 4. The consequences of allowing it.
I. Clergy, the privilegium clericale, or in common speech, the benefits of
clergy, had its original from the pious regard paid by Christian princes
to the church in its infant state; and the ill use which the popish eccles-
iastics soon made of that pious regard. The exemptions which they
granted to the church, were principally of two kinds: 1. Exemption
of places consecrated to religious duties, from criminal arrests, which
was the foundation of sanctuaries; 2. Exemption of the persons of clergy-
men from criminal process before the secular judge in a few particular
cases, which was the true original and meaning of the privilegium clerimlc.
But the clergy increasing in wealth, power, honour, number and in-
terest, began soon to set up for themselves: and that which they ob-
tained by the favour of the civil government, they now claimed -as their
inherent right: and as a [366] right of the highest nature, indefeasible,
and jure divinoZ* By their canons therefore and constitutions they en-
deavoured at and where they met with easy princes obtained, a vast
extension of these exemptions: as well in regard to the crimes them-
selves, of which the list became quite universal; 3 as in regard to the
persons exempted, among whom were at length comprehended not only
every little subordinate officer belonging to the church or clergy, but
even many that were totally laymen.
In England, however, although the usurpations of the pope were very
many and grievous, till Henry the Eighth entirely exterminated his supre-
macy, yet a total exemption of the clergy from secular jurisdiction could
never be thoroughly effected, though often endeavoured by the clergy: 4
1. Benefit of clergy no longer exists ony, G.; 1 Chit. C. L. (2d Ed.), 667
either in England or this country. to 690..
On account of its historical interest, 2a. The principal argument upon
however, it is retained in small type. which they founded this exemption
2. As to this subject in general, see was that te,xt of Scripture: "Touch
2 Hale, 323 to 391; index. Clergy; not mine annointed, and do my proph-
Fost. C. L. index, Clergy; Williams ets no harm." Keilw. 181.
J. Felony, V.; Burn J. Clergy; II.; 3. See Book III, page *62.
Com. Dig. Justices, Y ; Bac. Ab. Fel- 4. Keilw. 180.
CHAP. XXVIII.] OF BENEFIT OF CLERGY. 783
and therefore, though the ancient privilegium clericale was in some capital
cases, yet it was not universally allowed. And in those particular oases,
the use was for the bishop or ordinary to demand his clerks to be re-
mitted out of the king's courts, as soon as they were indicted: concern-
ing the allowance of which demand there was for many years a great
uncertainty; 5 till at length it was finally settled in the reign of Henry
the Sixth, that the prisoner should first be arraigned; and might either
then claim his benefit of clergy, by way of declinatory plea; or, after
conviction, by way of arresting judgment. This latter way Is most
usually practised, as it is more to the satisfaction of the court to have
the crime previously ascertained by confession or the verdict of a jury:
and also it is more advantageous to the prisoner himself, who may pos-
sibly be acquitted, and so need not the benefit of his clergy at all.
Originally the law was held, that no man should be admitted to the
privilege of clergy, but such as had the [367] habitum et tonsuram cleri-
calem.G But in process of time a much wider and more comprehensive
criterion was established: every one that could read (a mark of great
learning in those days of ignorance and her sister superstition) being
accounted a clerk or clericus, and allowed the benefit of clerkship, though
neither initiated in holy orders, nor trimmed with the clerical tonsure.
But when learning, by means of the invention of printing, and other
concurrent causes, began to be more generally disseminated than form-
erly; and reading was no longer a competent proof of clerkship, or be-
ing in holy orders; it was found that as many laymen as divines were
admitted to the privilegium clericale: and therefore by statute 4 Hen. VII.
c. 13, a distinction was once more drawn between mere lay scholars, and
clerks that were really in orders. And, though it was thought reasonable
still to mitigate the severity of the law with regard to the former, yet
they were not put upon the same footing with actual clergy; being sub-
jected to a slight degree of punishment, and not allowed to claim the
clerical privilege more than once. Accordingly the statute directs that
no person once admitted to the benefit of clergy, shall be admitted thereto
a second time, unless he produces his orders: and in order to distinguish
their persons, all laymen who are allowed this privilege shall be burnt
with a hot iron in the brawn of the left thumb. This distinction be-
tween learned laymen, and real clerks in orders, was abolished for a time
by the statutes 28 Hen. VIII. c. 1, and 32 Hen. VIII. c. 3, but it is held 7
to have been virtually restored by statute 1 Edw. VI. c. 12, which statute
also enacts, that lords of parliament and peers of the realm, having
place and voice in parliament, may have the benefit of their peerage,
equivalent to that of clergy, for the first offence (although they cannot
read, and without being burnt in the hand), for all offences then clergy-
5. 2 Hal. P. C. 377. 7. Hob. 294; 2 Hal. P. C. 375.
6. 2 Hal. P. C. 372, M. Paris, A.
D. 1259. See Book I, p. 24.
784 OF BENEFIT OF CLERGY. [BOOK IV.
able to commoners, and also for the crimes of house-breaking, highway-
robbery, horse-stealing, and robbing of churches. 8
[368] After this burning the laity, and before it the real clergy, were
discharged from the sentence of the law in the king's court, and de-
livered over to the ordinary, to be dealt with according to the ecclesias-
tical canons. Whereupon the ordinary, not satisfied with the proofs ad-
duced in the profane secular court, set himself formerly to work to make
a purgation of the offender by a new canonical trial; although he had
been previouesly convicted by his country, or perhaps by his own con-
fession. 9 This trial was held before the bishop in person, or his deputy;
and by a jury of twelve clerks: and there, first, the party himself was
required to make oath of his own innocence; next, there was to be the
oath of twelve compurgators, who swore they believed he spoke the
truth; then, witnesses were to be examined upon oath, but on behalf of
the prisoner only: and lastly, the jury were to bring in their verdict
upon oath, which usually acquitted the prisoner; otherwise, if a clerk,
he was degraded, or put to penance. 1 A learned judge, in the beginning
of the last century, 2 remarks with much indignation the vast complica-
tion of perjury and subornation of perjury, in this solemn farce of a
mock trial; the witnesses, the compurgators, and the jury, being all of
them pertakers in the guilt, the delinquent party also, though convicted
before on the clearest evidence, and conscious of his own offence, yet
was permitted and almost compelled to swear himself not guilty: nor
was the good bishop himself, under whose countenance this scene of
wickedness was daily transacted, by any means exempt from a share of
it. And yet by this purgation the party was restored to his credit, his
liberty, his lands, and his capacity for purchasing afresh, and was en-
tirely made a new and an innocent man.
8. Upon the conviction of the duch- tension of the benefit of clergy, and
ess of Kingston for bigamy, it was therefore granted only to those who
argued by the attorney-general Thuv- were or might be entitled to that
low, that peeresses were not entitled benefit; but as no female, peeress or
by 1 Edw. VI., c. 12, like peers to the commoner, at that time was entitled
privilege of peerage; but it was the to the benefit of clergy, so it was
unanimous opinion of the judges, that not the intention of the legislature
a peeress convicted of a clergyable to grant to any female the privilege
felony ought to be immediately dis- of peerage. And in my opinion the
charged without being burnt in the argument of the attorney-general is
hand, or without being liable to any much more convincing and satisfac-
imprisonment. 11 H. St. Tr. 264. If tory, as a legal demonstration, than
the duchess, had been admitted, like the arguments of the counsel on the
a commoner, only to the benefit of other side, or the reasons stated for
clergy, burning in the hand at that the opinions of the judges,
time could not have been dispensed 9. Staundford, P. C. 138 b.
with. The argument was, that the 1. 3 P. Wms. 447; Hub. 289.
privilege of peerage was only an ex- 2. Hob. 291.
CHAP. XXVIII. ] OF BENEFIT OF CLERGY. 785
This scandalous prostitution of oaths, and the forms of justice, in the
almost constant acquittal of felonious clerks by purgation, was the oc-
casion, that, upon very heinous and [369] notorious circumstances of
guilt, the temporal courts would not trust the ordinary with the trial
of the offender, but delivered over to him the convicted clerk, absque
purgatione facienda;* in which situation the clerk convict could not make
purgation; but was to continue in prison during life, and was incapable
of acquiring any personal property, or receiving the profits of his lands,
unless the king should please to pardon him. Both these courses were
in some degree exceptionable; the latter being perhaps too rigid, as
the former was productive of the most abandoned perjury. As there-
fore these mock trials took their rise from factious and popish tenets,
tending to exempt one part of the nation from the general municipal
law, it became high time, when the reformation was thoroughly es-
tablished, to abolish so vain and impious a ceremony.
Accordingly the statute of 18 Eliz. c. 7, enacts, that, for the avoiding
of such perjuries and abuses, after the offender has been allowed his
clergy, he shall not be delivered to the ordinary, as formerly; but, upon
such allowance and burning in the hand, he shall forthwith be enlarged
and delivered out of prison; with proviso, that the judge may, if he
thinks fit, continue the offender in gaol for any time not exceeding a
year. And thus the law continued, for above a century, unaltered, ex-
cept only that the statute of 21 Jac. I. c. 6, allowed, that women con-
victed of simple larcenies under the value of ten shillings should (not
properly have the benefit of clergy, for they were not called upon to
read; but) be burned in the hand, and whipped, 4 stocked, or imprisoned
for any time not exceeding a year. And a similar indulgence, by the
statutes 3 & 4 W. & M. c. 9, and 4 & 5 W. & M. a. 24, was extended to
women, guilty of any clergyable felony whatsoever; who were allowed
once to claim the benefit of the statute, in like manner as men might
claim the benefit of clergy, and to be discharged upon being burnt in the
hand, and imprisoned for any time not exceeding a year. The punish-
ment of burning in the hand, being found ineffectual, was also changed
by statute 10 & 11 W. III. c. 23, into burning in the most visible part of
the left cheek, nearest the nose: but such an indelible stigma being found
by experience to render offenders desperate, this provision was repealed,
about seven years afterwards, by statute 5 Ann. c. 6, and till that period,
all women, all peers of parliament and peeresses, and all male com-
moners who could read, were discharged [370] in all clergyable felonies;
the males absolutely, if clerks in orders; and other commoners, both
male and female, upon branding; and peers and peeresses without brand-
ing, for the first offence: yet all liable (excepting peers and peeresses),
if the judge saw occasion, to imprisonment not exceeding a year. And
3. Without making purgation.
4. Whipping of women is abolished
by 1 Geo. IV.. c. 57,
50
786 OF BENEFIT OF CLERGY. [BOOK IV.
those men who could not read, if under the degree of peerage, were
hanged.
Afterwards indeed it was considered, that education and learning were
no extenuations of gilt, but quite the reverse, and that, if the punish-
ment of death for simple felony was too severe for those who had been
liberally instructed, it was, a fortiori, too severe for the ignoranc also.
And thereupon by the same statute 5 Ann. c. 6, it was enacted, that
the benefit of clergy should be granted to all those who were entitled
to ask it, without requiring them to read by way of conditional merit. 5
And experience having shown that so very universal a lenity was fre-
quently inconvenient, and an encouragement to commit the lower de-
grees of felony; and that, though capital punishments were too rigorous
for these inferior offences, yet no punishment at all (or next to none)
was as much too gentle; it was further enacted by the same statute,
that when any person is convicted of any theft, or larceny, and burnt
in the hand for the same according to the ancient law, he shall also,
at the discretion of the judge, be committed to the house of correction
or public workhouse, to be there kept to hard labour, for any time not
less than six months and not exceeding two years; with a power of in-
flicting a double confinement in case of the party's escape from the first.
And it was also enacted by the statutes 4 Geo. I. c. 11, and 6 Geo. I. c. 23,
that when any persons shall be convicted of any larceny, either grand or
petit, or any felonious stealing or taking of money or goods and chattels
either from the person or the house of any other, or in any other man-
ner, and who by the law shall be entitled to the benefit of clergy, and
liable only to the penalties of burning in the hand or whipping, the court
in their discretion, instead of such burning in the hand or whipping,
may direct such offenders to be transported to America (or, by the
statute 19 Geo. III. c. 74, to any other parts beyond the seas) for seven
years: and, if they [371] return or are seen at large in this kingdom
within that time, it shall be felony without benefit of clergy. And by
the subsequent statutes 16 Geo. II. c. 15, and 8 Geo. III. c. 15, many wise
provisions are made for the more speedy and effectual execution of the
laws relating to transportation, and the conviction of such as transgress
5. The statute enacts, that if a per- benefit of the statute. It would per-
son convicted of a clergyable offence haps have been more consistent with
shall pray the benefit of this act, he the dignity of a court of justice to
shall not be required to read, but have granted the benefit of clergy
shall be taken to be, and punished without requiring an unnecessary
as, a clerk convict. Hence persons form, the meaning of which very few
convicted of manslaughters, bigamies, comprehend. And if the prisoner
and simple grand larcenies, etc., are should obstinately refuse to pray the
still asked what they have to say why benefit of the statute, it seems to be
judgment of death should not be pro- an unavoidable consequence that th
nounced upon them ? And they are judge must pronounce sentence of
then told to kneel down, and pray the death upon him.
CHAP. XXVIII.] OF BENEFIT OF CLERGY. 787
them. But now, by the statute 19 Geo. III. c. 74, all offenders liable
to transportation may, in lieu thereof, at the discretion of the judges,
be employed, if males except in the case of petty larceny, in hard labour
for the benefit of some public navigation; or, whether males or females,
may, in all cases, be confined to hard labour in certain penitentiary
houses, to be erected by virtue of the said act, for the several terms
therein specified, but in no case exceeding seven years; with a power
of subsequent mitigation, and even of reward, in case of their good be-
haviour. But if they escape and are re-taken, for the first time an addi-
tion of three years is made to the term of their confinement; and a
second escape is felony without benefit of clergy.
In forming the plan of these penitentiary houses, the principal objects
have been, by sobriety, cleanliness, and medical assistance, by a regular
series of labour, by solitary confinement during the intervals of work,
and by due religious instruction, to preserve and amend the health of the
unhappy offenders, to inure them to habits of industry, to guard them
from pernicious company, to accustom them to serious reflection, and
to teach them both the principles and practice of every Christian and
moral duty. And if the whole of this plan be properly executed, and its
defects be timely supplied, there is reason to hope that such a reforma-
tion may be effected in the lower classes of mankind, and such a gradual
scale of punishment be affixed to all gradations of guilt, as may in time
supersede the necessity of capital punishment, except for very atrocious
crimes.
It is also enacted by the same statute, 19 Geo. III. c. 74, that Instead
of burning in the hand (which was sometimes- too slight and sometimes
too disgraceful a punishment) the court in all clergyable felonies may
impose a pecuniary fine; or (except in the case of manslaughter) may
order the offender to be once or oftener, but not more than thrice, either
publicly or privately whipped; such private whipping (to prevent col-
lusion or abuse) to be inflicted in the presence of two witnesses, and
in case of female offenders in the presence of females only. Which fine
or whipping shall have the same consequences as burning in the hand;
and the offender, so fined or whipped, shall be equally liable to a subse-
quent detainer or imprisonment.
In this state does the benefit of clergy at present stand; very consider-
ably different from its original institution: the wisdom of the English
legislature having, in the course of a long and laborious process, ex-
tracted by a noble alchemy rich medicines out of poisonous ingredients;
and converted, by gradual mutations, what was at first an unreasonable
exemption of particular popish ecclesiastics, into a merciful mitigation
of the general law, with respect to capital punishment.
From the whole of this detail we may collect, that however in times
of ignorance and superstition that monster in true policy may for a
while subsist, of a body of men, residing in the bowels of a state, and
788 OF BENEFIT OF CLERGY. [Boox IV.
yet independent of its laws; yet, when learning and rational religion
have a little enlightened men's minds, society can no longer endure an
absurdity so gross, as must destroy its very fundamentals. For, by the
original contract of government, the price of protection by the united
force of individuals is that of obedience to the united will of the com-
munity. This united will is declared in the laws of the land: and that
united force is exerted in their due, and universal, execution.
II. I am next to inquire, to what persons the benefit of clergy is to lie
allowed at this day: and this must be chiefly collected from what has
been observed in the preceding [372] article. For, upon the whole, we
may pronounce, that all clerks in orders are, without any branding, and
of course without any transportation, fine, or whipping for those are
only substituted in lieu of the other), to be admitted to this privilege,
and immediately discharged; and this as often as they offend. 7 Again,
all lords of parliament and peers of the realm having place and voice
in parliament, by the statute 1 Edw. VI. c. 12 (which is likewise held to
extend to peeresses), 8 shall be discharged in all clergyable and other
felonies provided for by the act, without any burning in the hand or
imprisonment, or other punishment susbtituted in its stead, in the same
manner as real clerks convict: but this is only for the first offence.
Lastly, all the commons of the realm, not in orders, whether male or
female, shall for the first offence be discharged of the capital punishment
of felonies within the benefit of clergy, upon being burnt in the hand,
whipped, or fined, or suffering a discretionary imprisonment in the com-
mon gaol, the house of correction, one of the penitentiary houses, or in the
places of labour for the benefit of some navigation; or, in case of larceny,
upon being transported for seven years, if the court shall think proper.
It hath been said, that Jews, and other infidels and heretics, were not
capable of the benefit of clergy, till after the statute 5 Ann. c. 6, as being
under a legal incapacity for orders. 9 But I much question whether this
was ever ruled for law, since the re-introduction of the Jews into Eng-
land, in the time of Oliver Cromwell. For, if that were the case, the
Jews are still in the same predicament, which every day's experience
will contradict: the statute of queen Anne having certainly made no al-
teration in this respect; it only dispensing with the necessity of read-
ing in those persons, who, in case they could read, were before the act
entitled to the benefit of their clergy.
III. The third point to be considered is, for what crimes the privilcgium
clericals, or benefit of clergy, is to be allowed. And, it is to be observed,
that neither in high treason nor in petit larceny, nor in any mere mis-
demeanors, it was indulged at the common law ; and therefore we may
lay it down for a rule that it was allowable only in petit treason and
capital felonies: which for the most part became legally entitled to this
7. 2 Hal. P. C. 375. 9. 2 Hal. P. C. 373; 2 Hawk. P.
8. Duchess of Kingston's case in C. 338; Fost. 306.
Parliament, 22 Apr. 1776.
CHAP. XXVIIL] OF BENEFIT OF CLERGY. 789
i
[373] indulgence by the statute fie clero, 25 Edw. III. st. 3, c. 4, which
provides that clerks convict for treasons or felonies, touching other per-
sons than the king himself or his royal majesty, shall have the privi-
lege of holy church. But yet it was not allowable in all felonies what-
soever: for in some it was denied even by the common law, viz., insidiatio
viarum, or lying in wait for one on the highway; depopulatio agrorum, or
destroying and ravaging a country; * and combust io domontm, or arson,
that is, the burning of houses: 2 all which are a kind of hostile acts,
and in some degree border upon treason. And farther, all these identical
crimes, together with petit treason, and very many other acts of felony,
are ousted of clergy by particular acts of parliament; which have in
general been mentioned under the particular offences to which they be-
long, and therefore need not be here recapitulated. Upon all which stat-
utes for excluding clergy I shall only observe, that they are nothing
else but the restoring of the law, to the same rigor of capital punishment
in the first offence, that is exerted before the privilegium clerical?, was at
all indulged; and which it still exerts upon a second offence in almost
all kinds of felonies, unless committed by clerks actually in orders. But
so tender is the law of inflicting capital punishment in the first instance
for any inferior felony, that notwithstanding by the marine law, as de-
clared in statute 28 Hen. VIII. c. 15, the benefit of clergy is not allowed
in any case whatsoever; yet, when offences are committed within the
admiralty-jurisdiction, which would be clergyable if committed by land,
the constant course is to acquit and discharge the prisoner. 3 And, to
conclude this head of inquiry, we may observe the following rules: 1.
That in all felonies, whether new created or by common law, clergy is
now allowable, unless taken away by express words of an act of parlia-
ment. 4 2. That, where clergy is taken away from the principal, it is
not of course taken away from the accessary, unless he be also par-
ticularly included in the words of the statute. 5 3. That when the benefit
of clergy is taken away from the offence (as in case of murder, buggery,
robbery, rape, and burglary), a principal in the second degree being
present, aiding and abetting the crime, is as well [374] excluded from
his clergy as he that is principal in the first degree: but, 4. That, where
it is only taken away from the person committing the offence (as in the
case of stabbing, or committing larceny in a dwelling-house, or privately
from the person), his aider and abettors are not excluded; though the
tenderness of the law, which hath determined that such statutes shall
be taken literally. 6
IV. Lastly, we are to inquire what the consequences are to the party,
1. 2 Hal. P. C. 333. manner as if committed on shore;
2. 1 Hal. P. C. 346. and see the 43 Geo. III., c. 113, 3. G,
3. Moor, 756; Fost. 288. But now, 56 Geo. III., c. 27, s. 3.
by 39 Geo. III., c. 37, offences com- 4. 2 Hal. P. C. 330.
mitted on the high seas are to be 5. 2 Hawk. P. C. 342.
considered and treated in the same 6. 1 Hal. P. C. 529 ; Fost. 356, 357.
790
OF BENEFIT OF CLERGY.
[Boos IV.
of allowing him this benefit of clergy. I speak not of the branding, fine,
whipping, imprisonment, or transportation; which are rather concomit-
ant conditions, than consequences of receiving this indulgence. The
consequences are such as affect his present interest, and future credit
and capacity: as having been once a felon, but now purged from that
guilt by the privilege of clergy; which operates as a kind of statute
pardon.
And, we may observe, 1. That by this conviction he forfeits all his
goods to the king; which being once vested in the crown, shall not after-
wards be restored to the offender. 7 2. That, after conviction, and till he
receives the judgment of the law, by branding, or some of its substitutes,
or else is pardoned by the king, he is to all intents and purposes a felon,
and subject to all the disabilities and other incidents of a felon. 8 3.
That after burning, or its substitute, or pardon, he is discharged for ever
of that, and all other felonies before committed, within the benefit of
clergy; but not of felonies from which such benefit is excluded: and this
by statutes 8 Eliz. c. 4, and 18 Eliz. c. 7. 4. That by burning, or its
substitute, or the pardon of it, he is restored to all capacities and credits,
and the possession of his lands, as if he had never been convicted. 9 5. That
what is said with regard to the advantages of commoners and laymen,
subsequent to the burning in the hand, is equally applicable to all peers
and clergymen, although never branded at all, or subjected to other pun-
ishment in its stead. For they have the same privileges, without any
burning, or any substitute fer it, which others are entitled to after it. 1
7. 2 Hal. P. C. 388.
8. 3 P. Wms. 487.
9. 2 Hal. P. C. 389; 5 Rep. 110.
1. 2 Hal. P. C. 389, 390.
The various statutes mentioned in
the course of this chapter, as relating
to benefit of clergy, have been either
expressly repealed, or rendered inop-
erative, by the passing of the recent
statute, 7 and 8 Geo. IV., c. 28; 6
of which enacts, that benefit of clergy,
with respect to persons convicted of
felony, shall be abolished; but that
nothing therein contained shall pre-
vent the joinder in any indictment of
any counts which might have been
joined before the passing of the Act.
Section 7 of the same statute en-
acts, that no person convicted of fel-
ony shall suffer death, unless it be
for some felony which was excluded
from the benefit of clergy before, or
on the first day of the (then) present
session of parliament, or which has
been or shall be made punishable with
death by some statute passed after
that day.
The 6 Geo. IV., c. 25, entitled, "An
Act for defining the rights of capital
convicts who receive pardon, and of
convicts after having been punished
for clergyable felonies; for placing
clerks in orders on the same footing
with other persons as to felonies;
and for limiting the effect of the bene-
fit of clergy; " had previously en-
acted, by section 1, that in case of
free pardons, the prisoner's discharge,
and in case of conditional pardons,
the performance of the condition,
should have the effect of a pardon
under the great seal; by section 2,
that offenders convicted of clergyable
felonies enduring the punishment ad-
CHAP. XXIX.] OF JUDGMENT. 791
CHAPTEK XXIX.
OF JUDGMENT AND ITS CONSEQUENCES.
When upon a capital charge the jury have brought in
their verdict guilty, in the presence of the prisoner, he is
either immediately or at a convenient time soon after asked
by the court if he has anything to offer why judgment
should not be awarded against him. 1 [375] And in case
the defendant be found guilty of a misdemeanor (the trial
of which may, and does usually, happen in his absence,
after he has once appeared), a capias is awarded and issued
to bring him in to receive his judgment, and if he absconds
he may be prosecuted even to outlawry. But whenever he
appears in person, upon either a capital or inferior convic-
tion, he may at this period as well as at his arraignment
offer any exceptions to the indictment in arrest or stay of
judgment, 2 as for want of sufficient certainty in setting
forth either the person, the time, the place, or the offence.
And if the objections be valid, the whole proceedings shall
be set aside; but the party may be indicted again. And
we may take notice, 1. That none of the statutes of jeofails,
for amendment of errors, extend to indictments 3 or pro-
judged, such punishment should have Ball v. U. S., 140 U. S. 118; Mesoner
the effect of burning in the hand; by v. People, 45 N. Y. 1. There are cases
section 3, that clerks should be liable contra, where defendant was repre-
to punishment, as if not in orders; sented by counsel. Clark's Crim.
and by section 4, that the allowance Proced. 494 and cases cited in note,
of the benefit of clergy to any person 2. The method of reviewing crim-
who should, after the passing of that inal trials varies in different jurisdic-
Act, be convicted of any felony, should tions. Generally, a motion for a new
not render the person to whom such trial and in arrest of judgment is
benefit was allowed, dispunishable for made and if overruled a bill of ex-
any other felony, by him or her com- ceptions is settled and the case re-
mitted before the time of such allow- viewed on a writ of error or appeal,
ance, any law, custom, or usage, to Consult the local statutes and works
the contrary, notwithstanding. on Criminal Law.
1. As a rule if this formality is 3. At common law an information
omitted, the judgment will be set could be amended by leave of court;
aside. Clark's Crim. Proced., 494; but an indictment being a finding by
792 OF JUDGMENT. [BOOK IV.
ceedings in criminal cases, and therefore a defective indict-
ment is not aided by a verdict, as defective pleadings in
civil cases are. [376] 2. That in favor of life great strict-
ness has at all times been observed in every point of an
indictment.
A pardon also may be pleaded in arrest of judgment, and
it has the same advantage when pleaded here as when
pleaded upon arraignment: viz., the saving the attainder,
and of course the corruption of blood, 4 which nothing can
restore but parliament when a pardon is not pleaded till
after sentence.
Praying the benefit of clergy may also be ranked among the motions
in arrest of judgment.
If all these resources fail, the court must pronounce that
judgment which the law hath annexed to the crime.
When sentence of death is -pronounced, the immediate
inseparable consequence from the common law is attainder. 5
[380]
He is then called attaint, attinctus, stained or blackened. He is no
longer of any credit or reputation; he cannot be a witness in any court,
neither is he capable of performing the functions of another man; for,
by anticipation of his punishment, he is already dead in law. This is
after judgment, for there is great difference beiween a man convicted
and attainted. After conviction only, a man is liable to none of these
disabilities, for there is still in contemplation of law a possibility of his
innocence. [381] Something may be offered in arrest of judgment; the
indictment may be erroneous, which will render his guilt uncertain, and
thereupon the present conviction may be quashed; he may ob'ain a
pardon, or be allowed the benefit of clergy. Upon judgment of death, and
not before, the attainder of a criminal commences; or upon such cir-
cumstances as are equivalent to judgment of dea l .h, as judgment of out-
lawry on a capital crime, pronounced for absconding or fleeing from
justice, which tacitly confesses the guilt. And therefore either upon
a grand jury an oath could not be 4. Attainder and corruption of blood
so amended at least not in matter of have been abolished in England and
substance. Clark's Crim. Proced., 315; never existed in the United Stated.
Patrick v. People, 132 111. 529; Ev
jxirtc Bain, 121 U. S. 1.
CHAP. XXIX.] OF JUDGMENT. 793
judgment of outlawry or of death, for treason or felony, a man shall
be said to be attainted.
The consequences of attainder are forfeiture and corruption of blood.
[Not applicable to this country.]
I. Forfeiture is twofold, of real and personal estates. First, as to real
estates: by attainder in high treason a man forfeits to the king all his
lands and tenements of inheritance, whether fee-simple or fee-tail, and
all his rights of entry on lands or tenements which he had at the time
of the offence committed, or at any time afterwards, to be forever vested
in the crown; and also the profits of all lands and tenements which he
had in his own right for life or years, so long as such interest shall
subsist. This forfeiture relates backwards to the time of the treason
committed, so as to avoid all intermediate sales and incumbrances, but
not those before the fact.
In petit treason and felony the offender also forfeits all his chattel
interests absolutely, and the profits of all estates of freehold during life,
and after his death all his lands and tenements in fee simple (but not
those in tail) to the crown, for a very short period of time; for the king
shall have them for a year and a day, and may commit therein what
waste he pleases, which is 'called the king's year, day, and waste. [385]
This year, day, and waste are now usually compounded for; but other-
wise they regularly belong to the croAvn, and after their expiration the
land would have naturally descended to the heir (as in gavelkind tenure
it still does) , did not its feodal quality intercept 'such descent and give
it by way of escheat to the lord. [386] These forfeitures for felony do
also arise only upon attainder, and therefore a fclo de se forfeits no land
of inheritance or freehold, for he never is attainted as a felon. They
likewise relate back to the time of the offence committed as well as for-
feitures for treason, so as to avoid all intermediate charges and con-
veyances.
The forefeiture of goods and chattels accrues in every one of the higher
kinds of offence; in high treason or misprision thereof, petit treason, felo-
nies of all sorts, whether clergyable or not, self-murder or felony de se,
petit larceny, standing mute, and the offences of striking, etc., in West-
minster Hall. [387] For flight also, on an accusation of treason, felony,
or even petit larceny, whether the party be found guilty or acquitted,
if the jury find the flight the party shall forfeit his goods and chattels.
There is a remarkable difference or two between the forfeiture of lands
and of goods and chattels. 1. Lands are forfeited upon attainder, and
not before; goods and chattels are forfeited by conviction. 2. In out-
lawries for treason or felony, lands are forfeited only by the judgment;
but the goods and chattels are forfeited by a man's being first put in the
exigent, without staying till he is quinto exactus, or finally outlawed, for
the secreting himself so long from justice is construed a flight in law.
The forfeiture of lands has relation to the time of the fact committed,
so as to avoid all subsequent sales and incumbrances; but the forfeiture
794: OF JUDGMENT. [BOOK IV.
of goods and chattels has no relation backwards, so that those only
which a man has at the time of conviction shall be forfeited.
II. Another immediate consequence of attainder is the corruption of
blood, both upwards and downwards; so that an attainted person can
neither inherit lands or other hereditaments from his ancestors, nor re-
tain those he is already in possession of, nor transmit them by descent
to any heir, but the same shall escheat to the lord of the fee, subject to
the king's superior right of forfeiture. And the person attainted shall
also obstruct all descents to his posterity, wherever they are obliged to
derive a title through him to a remoter ancestor. [388]
OHAP. XXX.] OF REVERSAL OF JUDGMENT. 795
CHAPTEE XXX.
OF REVERSAL OF JUDGMENT.
Judgments, with their several connected consequences of
attainder, forfeiture, and corruption of blood, may be set
aside, either by falsifying or reversing the judgment, or else
by reprieve or pardon. [390]
A judgment may be falsified, reversed, or avoided, in the
first place, without a writ of error, for matters foreign to
or dehors the record, that is, not apparent upon the face of
it, so that they cannot be assigned for error in the superior
court, which can only judge from what appears in the
record itself, and, therefore, if the whole record be not certi-
fied, or not truly certified by the inferior court, the party
injured thereby (in both civil and criminal cases) may
allege a diminution of the record, and cause it to be recti-
fied. 1 Thus, if any judgment whatever be given by persons
who had no good commission to proceed against the person
condemned, it is void, and may be falsified, by showing the
special matter, without writ of error. 2
So likewise if a man purchases land of another, and afterwards the
vendor is, either by outlawry or his own confession, convicted and at-
tainted of treason or felony previous to the sale or alienation, whereby
such land becomes liable to forfeiture or escheat, now upon any trial
the purchaser is at liberty, without bringing any writ of error, to falsify
not only the time of the felony or treason supposed, but the very point
of the felony or treason itself, and is not concluded by the confession or
the outlawry of the vendor, though the vendor himself is concluded, and
not suffered now to deny the fact which he has by confession or flight
acknowledged. [391] But if such attainder of the vendor was by verdict
on the oath of his peers, the alienee cannot be received to falsify or con-
tradict the fact of the crime committed, though he is at liberty to prove
a mistake in time, or that the offence was committed after the aliena-
tion, and not before.
1. Not an uncommon proceeding in ous must by some direct proceeding
this country. such as a writ of error be reversed
2. A judgment or decree that is on appeal and is binding till BO re-
void may be attacked collaterally; versed.
one that is merely voidable or errone-
796 OF REFUSAL OF JUDGMENT. [BOOK IV.
Secondly, a judgment may be reversed by writ of error, 3
which lies from all inferior criminal jurisdictions to the
Court of King's Bench, and from the King's Bench to the
House of Peers, and may be brought for notorious mistakes
in the judgment or other parts of the record, as where a man
is found guilty of perjury and receives the judgment of
felony, or for other less palpable errors.
These writs of error, to reverse judgment in case of misdemeanors, are
not to be allowed of course, but on sufficient probable cause shown to
the Attorney-General, and then they are understood to be grantable of
common right and ex debito justitiae. [392] But writs of error to reverse
attainders in capital cases are only allowed ex gratia, and not without
express warrant under the king's sign manual, or at least by the consent
of the Attorney-General. These, therefore, can rarely be brought by the
party himself, especially where he is attainted for an offence against the
state; but they may be brought by his heir or executor, after his death,
in more favorable times, which may be some consolation to his family.
But the easier and more effectual way is,
Lastly, to reverse the attainder by act of parliament
The effect of falsifying or reversing an outlawry is that the party shall
be in the same plight as if he had appeared upon the capias, and if it be
before plea pleaded, he shall be put to plea to the indictment, if after
conviction, he shall receive the sentence of the law; for all the other
proceedings, except only the process of outlawry or his non-appearance,
remain good and effectual as before.
But when judgment, pronounced upon conviction, is
falsified or reversed, 4 all former proceedings are absolutely
set aside, and the party stands as if he had never been at
all accused, restored in his credit, his capacity, his blood,
and his estates; with regard to which last, though they may
be granted away by the crown, yet the owner, may enter
upon the grantee with as little ceremony as he might enter
upon a disseisor. [393] But he still remains liable to
another prosecution for the same offence, for, the first being
erroneous, he never was in jeopardy thereby.
3. See preceding note. the case to the court below for a new
4. When a judgment is reversed for trial; although at times the judgment
error, the usual practice is to remand is simply reversed.
CHAP. XXXI.] OF REPRIEVE AND PARDON. 79'
CHAPTER XXXI.
OF REPRIEVE AND PARDON".
The only other remaining ways of avoiding the execution
of the judgment are by a reprieve or a pardon, whereof the
former is temporary only, the latter permanent. [394]
I. A reprive, from reprendre, to take back, is the with-
drawing of a sentence for an interval of time, whereby th
execution is suspended. This may be, first, ex arbitrio
judicis, 1 either before or after judgment: as where the judge
is not satisfied with the verdict, or the evidence is suspici-
ous, or the indictment is insufficient, or he is doubtful
whether the offence be within clergy; or sometimes, if it be
a small felony, or any favorable circumstances appear in the
criminal's character, in order to give room to apply to the
crown for either an absolute or conditional pardon.
Reprieves may be ex necessitate legis, 2 as where a woman
is capitally convicted and pleads her pregnancy: though
this is no cause to stay the judgment, yet it is to respite the
execution till she be delivered.
Another cause of regular reprieve is, if the offender be-
comes non compos between the judgment and the award of
execution. For regularly, though a man be compos when he
commits a capital crime, yet if he becomes non compos after,
he shall not be indicted; if after indictment, he shall not be
convicted ; if after conviction, he shall not receive judgment ;
if after judgment, he shall not be ordered for execution; for
" furiosm solo furore punitur," 3 and the law knows not but he
might have offered some reason, if in his senses, to have stayed
these respective proceedings. [396] It is therefore an invari-
able rule, when any time intervenes between the attainder and
the award of execution, to demand of the prisoner what he
hath to allege why execution should not be awarded against
him; and if he appears to be insane, the judge in his dis-
cretion may and ought to reprieve him. Or the party may
1. At the will of the judge. 3. A madman is punished by hi*
2. From necessity of law. madness alone.
798 OF REPRIEVE AND PARDON. [BOOK IV.
i
plead in bar of execution, which plea may be either preg-
nancy, the king's pardon, an act of grace, or diversity of
person, viz., that he is not the same as was attainted, and
the like. In this last case a jury shall be impanelled to try
this collateral issue* namely, the identity of his person ; and
not whether guilty or innocent, for that has'~*been decided
before. And in these collateral issues the trial shall be
instant er, and no time allowed the prisoner to make his de-
fence or produce his witnesses, unless he will make oath
that he is not the person attainted; neither shall any per-
emptory challenges of the jury be allowed the prisoner,
though formerly such challenges were held to be allowable
whenever a man's life was in question.
II. If neither pregnancy, insanity, non-identity, nor other
plea will avail to avoid the judgment and stay the execution
consequent thereupon, the last and surest resort is in the
king's most gracious pardon. 4
1. And first, the king may pardon all offences merely
against the crown or the public; excepting, 1. That, to pre-
serve the liberty of the subject, the committing any man to
prison out of the realm is by the habeas corpus act; 31 Car.
II. c. 2, made a pracmiin'ire, unpardonable even by the king.
Nor, 2. Can the king pardon where private justice is prin-
cipally concerned in the prosecution of offenders. [398]
Therefore he cannot pardon a common nuisance while it
remains unredressed, or so as to prevent an abatement of
it, though afterwards he may remit the fine; because, though
the prosecution is vested in the king to avoid multiplicity
of suits, yet (during its continuance) this offence savors
more of the nature of a private injury to each individual in
the neighborhood than of a public wrong. [399] Neither,
lastly, can the king pardon an offence against a popular or
penal statute, after information brought, for thereby the
informer hath acquired a private property in his part of the
penalty.
4. In Massachusetts, Illinois and others of the several states it is coin-
some other states the executive may petent for the executive to pardon
or.ly pardon after conviction; but in before trial. Wash. Crim. Law (3d
the United States jurisdiction and Ed.), 204. See ante, note.
CHAP. XXXI.] OF KEPKIEVE AND PARDON. 799
There is also a restriction of a peculiar nature that affects
the prerogative of pardoning, in case of parliamentary im-
peachments, viz., that the king's pardon cannot be pleaded
to any such impeachment, so as to impede the inquiry and
stop the prosecution of great and notorious offenders. 5 But
after the impeachment has been solemnly heard and deter-
mined, it is not understood that the king's royal grace is
further restrained or abridged. [400]
2. As to the manner of pardoning. 6 (1) First, it must be
under the Great Seal. A warrant under the privy seal or
sign manual, though it may be a sufficient authority to
admit the party to bail, in order to plead the king's pardon
when obtained in proper form, yet is not of itself a complete
irrevocable pardon. (2) Next, it is a general rule that,
wherever it may reasonably be presumed the king is de-
ceived, the pardon is void. Therefore any suppression of
truth or suggestion of falsehood in a charter of pardon will
vitiate the whole, for the king was misinformed. (3) General
words have also a very imperfect effect in pardons. A pardon
of all felonies will not pardon a conviction or attainder of
felony ( for it is presumed the king knew not of those proceed-
ings), but the conviction or attainder must be particularly
mentioned ; and a pardon of felonies will not include piracy,
for that is no felony punishable at the common law. (4) It is
also enacted by statute 13 Eic. II. st. 2, c. 1, that no pardon
for treason, murder, or rape shall be allowed unless the
offence be particularly specified therein, and particularly
in murder it shall be expressed whether it was committed
by lying in wait, assault, or malice prepense. Under these
and a few other restrictions it is a general rule that a
pardon shall be taken most beneficially for the subject, and
most strongly against the king. [401]
A pardon may also be conditional, 7 that is, the king may
5. See U. S. Const., art. 2, sec. 2. A pardon must be specially pleaded
6. In some of the states there are unless it is granted by a public stat-
statutes regulating the manner of ute of which the court must take ju-
making application for a pardon. Con- dicial notice. Clark's Crim. Proced.,
suit the statutes. 407 and cases cited.
7. Wash. Crim. Law (3d Ed.), 204.
800 OF REPRIEVE AND PARDON. [BooK IT.
extend his mercy upon what terms he pleases, and may
annex to his bounty a condition either precedent or subse-
quent, on the performance whereof the validity of the
pardon will depend; and this by the common law.
3. With regard to the manner of allowing pardons, we
may observe that a pardon by act of parliament is more
beneficial than by the king 's charter, for a man is not bound
to plead it, but the court must ex-offtcio take notice of it;
neither can he lose the benefit of it by his own laches or
negligence, as he may of the king's charter of pardon. [402]
The king 's charter of pardon must be specially pleaded, and
that at a proper time; for if a man is indicted and has a
pardon in his pocket, and afterwards puts himself upon his
trial by pleading the general issue, he has waived the benefit
of such pardon. But if a man avails himself thereof as
soon as by course of law he may, a pardon may either be
pleaded upon arraignment, or in arrest of judgment, or in
the present stage of proceedings, in bar of execution.
4. Lastly, the effect of such pardon by the king is to make
the offender a new man, to acquit him of all corporal penal-
ties and forfeitures annexed to that offence for which he
obtains his pardon, and not so much to restore his former
as to give him a new credit and capacity. 8 But nothing can
restore or purify the blood when once corrupted, if the
pardon be not allowed till after attainder, but the high and
transcendent power of parliament. Yet if a person at-
tainted receives the king's pardon, and afterwards hath a
son, that son may be heir to his father [provided he has no
living elder brother born before the attainder] , because the
father, being made a new man, might transmit new inher^it-
able blood, though, had he been born before the pardon, he
could never have inherited at all.
8. Wash. Crim. Law (3d Ed.), 204.
CHAP. XXXII.] OF EXECUTION
801
CHAPTER XXXII.
OF EXECUTION.
There now remains nothing to speak of but execution,
the completion of human punishment. And this in all
cases, as well capital as otherwise, must be performed by
the legal officer, the sheriff or his deputy, whose warrant for
so doing was anciently by precept under the hand and seal
of the judge; as it is still practised in the Court of the Lord
High Steward upon the execution of a peer, though in the
court of the peers in parliament it is done by writ from the
king. [403] Afterwards it was established that, in case of
life, the judge may command execution to be done without
any writ. And now the usage is for the judge to sign the
calendar, or list of all the prisoners' names, with their
separate judgments in the margin, which is left with the
sheriff. As, for a capital felony, it is written opposite to
the prisoner's name, " Let him be hanged by the neck; "
formerly, in the days of Latin and abbreviation, " sus* per
col." for " suspendatur per collum." 1 And this is the only
warrant that the sheriff has for so material an act as taking
away the life of another. 2
The sheriff cannot alter the manner of the execution by
substituting one death for another, without being guilty
of felony himself. [404] It is held also by Sir Edward Coke
and Sir Matthew Hale that even the king cannot change
the punishment of the law by altering the hanging or burn-
ing into beheading, though when beheading is part of the
sentence, the king may remit the rest. [405] And notwith-
standing some examples to the contrary, Sir Edward Coke
stoutly maintains that " judicandum est legibus, non ex-
cmplis." 3 But others have thought, and more justly, that
1. Let him be suspended by the ishment for crimes, both misdemean-
neck. ors and felonies, is prescribed by stat-
2. With us there is a formal death ute and extends from a simple fine
warrant. with costs to the death penalty. Con-
3. Judgment should be according to suit the statutes,
the laws, not by examples. The pun-
51
802 .Op EXECUTION. [Boox IV.
this prerogative, being founded in mercy, and immemorially
exercised by the crown, is part of the common law. For
hitherto, in every instance, all these exchanges have been
for more merciful kinds of death.
To conclude, it is clear that if, upon judgment to be
hanged by the neck till he is dead, the criminal be not
thoroughly killed, but revives, the sheriff must hang him
again [406] ; for the former hanging was no execution of
the sentence.
APPENDIX TO BOOK II.
[These appendices give an insight into the spirit of the
old system that can be obtained in no other way. They are,
therefore, retained in smaller type. M. D. E.]
No. I.
VETUS CARTA FEOFFAMENTI.
[Premises] Sciant presentes et futuri, quod ego Willielmus, filius Willielmi
de Segenho, dedi, concessi, et hac present! carta mea confirmavi, Johanni
quondam filio Johannis de Saleford, pro quadam summa pecunie quam michi
dedit pre manibus, unam acram terre mee arabilis, jacentem in campo de
Saleford, juxta terram quondam Richard! de la Mere: [Habendum. & Ten-
endum.] Habendam et Tenendam totam predictam acram terre, cum omnibus
ejus pertinentiis, prefato Johanni, et heredibus suis, et suis assignatis, de capi-
talibus dominis feodi: [Reddendum.] Reddendo et faciendo annuatim eisdem
dominis capitalibus servitia inde debita et consueta: [Warranty.] Et ego
predictus Willielmus, et heredes mei, et mei assignati, totam predictam acram
terre, cum omnibus suis pertinentiis, predicto Johanni de Saleford, et heredibus
suis, et suis assignati, contra omnes gentes warrantizabimus in perpetuum.
[Conclusion.] In cujus rei testimonium huic present! carte sigillum meum
apposui: Fliis testibus, Nigello de Saleford, Johanne de Seybroke. Radulpho
clerico de Saleford, Johanne molendario de eadem villa, et aliis. Data apud
Saleford die Veneris proximo ante festum sancte Margarete virginis, anno
regni regis Edwardi filii regis Edwardi sexto.
(L. S.)
[Livery of seisin endorsed.] Memorandum, quod die et anno infra-
scriptis plena et pacifica seisina acre infraspecificate, cum pertin-
entiis, data et deliberata fuit per infranominatum Willielmum de
Segenho infranominato Johnanni de Saleford, in propriis personis suis,
secundum tenorem et effectum carte infrascripte, in presentia Nigelli
de Saleford, Johannis de Seybroke. et aliorum.
No. II. .
A MODERN CONVEYANCE BY LEASE AND RELEASE.
SECT. 1. LEASE OR BARGAIN AND SALE, FOB A YEAR.
[Premises] This Indenture, made the third day of September, in the twenty-
first year of the reign of our sovereign lord George the Second, by the grace
of God, king of Great Britain, France, and Ireland, defender of the faith, and
so forth, and in the year of our Lord one thousand seven hundred and forty-
seven, between [Parties] Abraham Barker, of Dale Hall, in the county of
Norfolk, esquire, and Cecilia his wife, of the one part, and David Edwards, of
Lincoln's Inn, in the county of Middlesex, esquire, and Francis Golding, of the
[803]
804 APPENDIX TO BOOK II.
city of Xorwich, clerk, of the other part, witnesseth; that the said Abraham
Barker and Cecilia his wife [Consideration], in consideration of five shillings
of lawful money of Great Britain, to them in hand paid by the said David
Edwards and Francis Golding, at, or before, the ensealing and delivery of
these presents (the receipt whereof is hereby acknowledged), and for other
good causes and considerations, them the said Abraham Barker and Cecilia his
wife, hereunto specially moving, have bargained and sold [Bargain and sale],
and by these presents do, and each of them doth, bargain and sell, unto the
said David Edwards and Francis Golding, their executors, administrators, and
assigns [Parcels], All that the capital messuage, called Dale Hall, in the parish
of Dale, in the said county of Norfolk, wherein the said Abraham Barker and
Cecilia his wife now dwell, and all those their lands in the said parish of Dale,
called or known by the name of Wilson's farm, containing by estimation five
hundred and forty acres, be the same more or less, together with all and
singular houses, dove-houses, barns, buildings, stables, yards, gardens, orchards,
lands, tenements, meadows, pastures, feedings, commons, woods, underwoods,
ways, waters, watercourses, fishings, privileges, profits, easements, commodities,
advantages, emoluments, hereditaments, and appurtenances whatsoever to the
said capital messuage and farm belonging or appertaining, or with the same
used or enjoyed, or accepted, reputed, taken, or known, as part, parcel, or
member thereof, or as belonging to the same, or any part thereof; and the
reversion and reversions, remainder and remainders, yearly and other rents,
issues, and profits thereof, and of every part and parcel thereof: [Habendum]
To have and to hold the said capital messuage, lands, tenements, heredita-
ments, and all and singular other the premises hereinbefore mentioned, or
intended to be bargained and sold, and every part and parcel thereof, with
hteir and every of their rights, members, and appurtenances, unto the said
David Edwards and Francis Golding, their executors, administrators, and
assigns, from the day next before the day of the date of these presents, for and
during, and unto the full end and term of. one whole year from thence next
ensuing, and fully to be complete and ended: [Reddendum] Yielding and pay-
ing, therefore, unto the said Abraham Barker, and Cecilia his wife, and their
heirs and assigns, the yearly rent of one pepper-corn at the expiration of the
said term, if the same shall be lawfully demanded: [Intent] To the intent
and purpose that, by virtue of these presents, and of the statute for trans-
ferring uses into possession, the said David Edwards and Francis Golding may
be in the actual possession of the premises, and be thereby enabled to take and
accept a grant and release of the freehold, reversion, and inheritance of the
same premises, and of every part and parcel thereof, to them, their heirs and
assigns; to the uses and upon the trusts, thereof to be declared by another
indenture, intended to bear date the next day after the day of the date hereof.
[Conclusion] In loitness whereof, the parties to these presents their hands
and seals have subscribed and set, the day and year first above written.
Sealed and delivered, being "^ Abraham Barker. (L. S.)
first duly stamped, in the I Cecilia Barker. (L. S.)
presence of , David Edwards. (L. S.)
George Carter. ' Francis Golding. (L. S.)
William Browne.
SECT. 2. DEED OF RELEASE.
[Premises] This Indenture of fivo parts, made the fourth day of September,
in the twenty-first year of the reigi. of our sovereign lord George the Second,
by the grace of God, king of Great Britain, France, and Ireland, defender of
the faith, and so forth, and in the year of our Lord one thousand seven hun-
dred and forty-seven, between [Parties] Abraham Barker, of Dale Ha.ll, in the
county of Norflok, esquire, and Cecilia his wife, of the first part; David
Edwards, of Lincoln's Inn, in the county of Middlesex, esquire, executor of the
last will and testament of Lewis Edwards of Cowbridge, in the county of
APPENDIX TO BOOK II. 805
Glamorgan, gentleman, his late father, deceased, and Francis Holding of the
city of Norwich, clerk, of the second part; Charles Browne, of Enstone in the
county of Oxford, gentleman, and Richard More, of the city of Bristol, mer-
chant, of the third part; John Barker, esquire, son and heir apparent of the
said Abraham Barker, of the fourth part; and Katherine Edwards, spinster
one of the sisters of the said David Edwards, of the fifth part. [Recital!
Whereas a marriage is intended, by the permission of God. to be shortly had
and solemnized between the said John Barker and Katherine Edwards: A T oio
this Indenture witnesscth, [Consideration], that in consideration of the said
intended marriage, and the sum of five thousand pounds, of good and lawful
money of Great Britain, to the said Abraham Barker, (by and with the consent
and agreement of the said John Barker and Katherine Edwards, testified by
their being parties to, and their sealing and delivery of, these presents), by the
.aid David Edwards in hand paid, at or before the ensealing and delivery
hereof, being the marriage portion of the said Katherine Edwards, bequeathed
to her by the last will and testament of the said Lewis Edwards, her late
father, deceased; the receipt and payment whereof the said Abraham Barker
doth hereby acknowledge, and thereof, and of every part and parcel thereof,
they the said Abraham Barker, John Barker, and Katherine Edwards, do. and
each of them doth, release, acquit, and discharge the said David Edwards, his
executors and administrators, for ever by these presents: and for providing
a competent jointure and provision of maintenance for the said Katherine
Edwards, in case she shall, after the said intended marriage had, survive and
overlive the said John Barker, her intended husband: and for settling and
assuring the capital messuage, lands, tenements, and hereditaments, herein-
after mentioned, unto such uses, and upon such trusts, as are hereinafter
expressed and declared: and for and in consideration of the sum of five shil-
lings, of lawful money of Great Britain, to the said Abraham Barker and
Cecilia his wife, in hand paid by the said David Edwards and Francis Golding,
and of ten shillings of like lawful money to them also in hand paid by the said
Charles Browne and Richard More, at or before the ensealing and delivery
hereof, (the several receipts whereof are hereby respectively acknowledgd),
they the said Abraham Barker and Cecilia his wife, [Release] Have, and each
of them hath, granted, bargained, sold, released, and confirmed, and by these
presents do, and each of them doth, grant, bargain, sell, release, and confirm
unto the said David Edwards and Francis Golding, their heirs and assigns.
[Parcels] All that, the capital messuage called Dale Hall, in the parish of
Dale, in the said county of Norfolk, wherein the said Abraham Barker and
Cecilia his wife now dwell, and all those their lands in the said parish of Dale,
called or known by the name of Wilson's farm, containing by estimation, five
hundred and forty acres, be the same more or less, together with all and
singular houses, dove-houses, barns, buildings, stables, yards, gardens, orchards,
lands, tenements, meadows, pastures, feedings, commons, woods, underwoods,
ways, waters, watercourses, fishings, privileges, profits, easements, commodities,
advantages, emoluments, hereditaments, and appurtenances whatsoever to the
said capital messuage and farm belonging or appertaining, or with the same
used or enjoyed, or accepted, reputed, taken, or known, as part, parcel, or
member thereof, or as belonging to the same or any part thereof: (all which
said premises are now in the actual possession of the said David Edwards and
Francis Golding. by virtue of [Mention of. bargain and sale], a bargain and
sale to them thereof made by the said Abraham Barker and Cecilia his wife,
for one whole year, in consideration of five shillings to them paid by the said
David Edwards and Francis Golding, in and by one indenture, bearing date
the day next before the day of the date hereof, and by force of the statute for
transferring uses into possession) ; and the reversion and reversions, remainder
and remainders, yearly and other rents, issues and profits thereof, and every
part and parcel thereof, and also all the estate, right, title, interest, trust, prop-
erty claim and demand whatsoever, both at law and in equity, of them the
gaid Abraham Barker and Cecilia his wife, in, to, or out of the said capital
806 APPENDIX TO BOOK II.
messuage, lands, tenements, hereditaments, and premises: [Habendum] To
have (Mid to hold the said capital messuage, lands, tenements, hereditaments,
and all and singular other the premises hereinbefore mentioned to be hereby
granted and released, with their and every of their appurtenances, unto the
said David Edwards and Francis Golding. their heirs and assigns, to such uses,
upon such trusts, and to and for such intents and purposes, as are hereinafter
mentioned, expressed, and declared, of and concerning the same: that is to
say, to the use and behoof of the said Abraham Barker and Cecilia his wife,
[To the use of the grantors till marriage], according to their several and re-
spective estates and interests therein, at the time of. or immediately before,
the execution of these presents, until the solemnization of the said intended
marriage: and from and after the solemnization thereof, to the use and
behoof of the said John Barker, for and during the term of his natural life;
without impeachment of or for any manner of waste: and from and after the
determination of that estate, [Then of the husband for life, sans waste: Re-
mainder to trustees to preserve contingent remainders], then to the use of the
said David Edwards and Francis Golding, and their heirs, during the life of the
said John Barker, upon trust to support and preserve the contingent uses and
estates hereinafter limited from being defeated and destroyed, and for that
purpose to make entries, or bring actions, as the case shall require ; but, never-
theless, to permit and suffer the said John Barker, and his assigns, during his
life, to receive and take the rents and profits thereof, and of every part thereof,
to and for his and their own use and benefit and from and after the decease of
the said John Barker [Remainder to the wife for life, for her jointure, in bar
of dower], then to the use and behoof of the said Katherine Edwards, his in-
tended wife, for and during the term of her natural life, for her jointure, and
in lieu, bar. and satisfaction of her dower and thirds at common law, which
she can or may have or claim, of, in, to, or out of, all and every, or any, of
the lands, tenements, and hereditaments, whereof or wherein the said John
Barker now is, or at any time or times hereafter during the coverture between
them shall be, seised of any estate of freehold or inheritance: and from and
after the decease of the said Katherine Edwards, or other sooner determination
of the said estate [Remainder to other trustees for a term, upon trusts after
mentioned], then to the use and behoof of the said Charles Browne and Richard
More, their executors, administrators, and assigns, for and during and unto the
full end and term of five hundred years from thence next ensuing, and fully
to be complete and ended, without impeachment of waste: upon such trusts
nevertheless, and to and for such intents and purposes, and under and subject
to such provisoes and agreements, as are hereinafter mentioned, expressed, and
declared of and concerning the same: [Remainder to the first and other sons
of the marriage in tail] and from and after the end, expiration, or other sooner
determination of the said term of five hundred years, and subject thereunto, to
the use and behoof of the first son of the said John Barker on the body of
the said Katherine Edwards his intended, wife to be begotten, and of the heirs
of the body of such fi.-st son lawfully issuing: and for default of such issue,
then to the use and behoof of the second, third, fourth, fifth, sixth, seventh,
eighth, ninth, tenth, and of all and every other the son and sons of the said
John Barker on the body of the said Katherine Edwards his intended wife to
be begotten, severally, successively, and in remainder one after another, as
they and every of them shall be in seniority of age, and priority of birth, and
of the severarand respective heirs of the body and bodies of all and every such
son and sons lawfully issuing; the elder of such sons, and the heirs of his
body issuing, being always to be preferred and to take before the younger of
such sons, and the heirs of his or their body or bodies issuing: [Remainder to
the daughters] and for default of such issue, then to the use and behoof of all
and every the daughter and daughters of the said John Barker on the body of
the said Katherine Edwards his intended wife to be begotten, to be equally
divided between them (if more than one), share and share alike [as tenants
in common, in tail], as tenants in common and not as joint-tenants, and of
APPENDIX TO BOOK II. 807
the several and respective heirs of the body and bodies of all and every such
daughter and daughters lawfully issuing: [Remainder to the husband in tail]
and for default of such issue, then to the use and behoof of the heirs of the
body of him the said John Barker lawfully issuing: [Remainder to the hus-
band's mother in fee] and for default of such heirs, then to the use and behoof
of the said Cecilia, the wife of the said Abraham Barker, and of her heirs and
assigns for ever. [The trust of the terms declared] And as to. for, and con-
cerning the term of five hundred years hereinbefore limited to the said Charles
Browne and Richard More, their executors, administrators, and assigns, as
aforesaid, it is hereby declared and agreed by and between all the said parties
to these presents, that the same is so limited to them upon the trusts, and to
and for the intents and purposes, and under and subject to the provisoes and
agreements, hereinafter mentioned, expressed, and declared, of and concerning
the same : [To raise portions for younger children] that is to say, in case there
shall be an eldest or only son and one or more other child or children of the
said John Barker on the body of the said Katherine his intended wife to be
begotten, then upon trust that they the said Charles Browne and Richard
More, their executors, administrators, and assigns, by sale or mortgage of the
said term of five hundred years, or by such other ways and means as they
or the survivor of them, or the executors or administrators of such survivor,
shall think fit, shall and do raise and levy, or borrow and take up at interest,
the sum of four thousand pounds of lawful money of Great Britain, for the
portion or portions of such other child or children (besides the eldest or only
son) as aforesaid, to be equally divided between them (if more than one) share
and share alike; the portion or portions of such of them as shall be a son or
sons [payable at certain times] to be paid at his or their respective age or
ages of twenty-one years; and the portion or portions of such of them as shall
be a daughter or daughters to be paid at. her or their respective age or ages of
twenty-one years, or day or days of marriage, which shall first happen. And
upon this further trust, that in the mean time and until the same portions
shall become payable as aforesaid, the said Charles Browne and Richard Mo.re,
their executors, administrators, and assigns, shall and do, by and out of the
rents, issues, and profits of the premises aforesaid [with maintenance at the
rate of 4 per cent.], raise and levy such competent yearly sum and sums of
money for the maintenance and education of such child or children, as shall
not exceed in the whole the interest of their respctive portions after the rate
of four pounds in the hundred yearly. Provided always, that in case any of
the same children shall happen to die before his. her, or their portions shall
become payable as aforesaid [and benefit of survivorship], then the portion or
portions of such of them so dying shall go and be paid unto and be equally
divided among the survivor or survivors of them, when and at such time as
the original portion or portions of such surviving child or children shall become
payable as aforesaid. Provided also, that, in case there shall be no such child
or children of [if no such child] the said John Barker on the body of the said
Katherine his intended wife begotten, besides an eldest or only son; or [or if
all die] in case all and every such child or children shall happen to die before
all or any of their said portions shall become due and payable as aforesaid; or
[or if the portions be raised] in case the said portions, and also such main-
tenance as aforesaid, shall by the said Charles Browne and Richard More,
their executors, administrators, or assigns, be raised and levied by any of the
ways and means in that behalf afore-mentioned; [or paid] or in case the same
by such person or persons as shall for the time being be next in reversion or
remainder of the same premises expectant upon the said term of five hundred
years, shall be paid, [or secured by the person next in remainder; the residue
of the term to cease] or well and duly secured to be paid, according to the
true intent and meaning of these presents; then and in any of the said cases,
and at all times thenceforth, the said term of five hundred years, or so much
thereof as shall remain unsold or undisputed of for the purposes aforesaid,
shall case, determine, and be utterly void to all intents and purposes, any
808 APPENDIX TO BOOK II.
tiling herein contained to the contrary thereof in any wise notwithstanding.
[Condition, that the uses and estates hereby granted shall be void, on settling
other lands of equal value in recompense] Provided also, and it is hereby
further declared and agreed by and between all the said parties to these
presents, that in case the said Abraham Barker or Cecilia his wife, at any time
during their lives, or the life of the survivor of them, with the approbation
of the said David Edwards and Francis Golding, or the survivor of them, or
the executors and administrators of such survivor, shall settle, convey, and
assure other lands and tenements of an estate of inheritance in fee-simple, in
possession, in some convenient place or places within the realm of England,
'of equal or better value than the said capital messuage, lands, tenements,
hereditaments, and premises, hereby granted and released, and in lieu and
recompense thereof, unto and for such and the like uses, intents and purposes,
and upon such and the like trusts, as the said capital messuafe, lands, tene-
ments, hereditaments, and premises are hereby settled and assured unto and
upon, then and in such case, and at all times from thenceforth, all and every
the use and uses, trust and trusts, estate and estates hereinbefore limited,
expressed, and declared of or concerning the same, shall cease, determine, and
be utterly void to all intents and purposes; and the same capital messuage,
lands, tenements, hereditaments, and premises, shall from thenceforth remain
and be to and for the only proper use and behoof of the said Abraham Barker
or Cecilia his wife, or the survivor of them, so settling, conveying, and assuring
such other lands and tenements as aforesaid, and of his or her heirs and
assigns for ever; and to and for no other use, intent, or purpose whatsoever;
any thing herein contained to the contrary thereof in any wise notwithstand-
ing. [Covenant to levy a fine] And, for the considerations aforesaid, and for
barring all estate-tail, and all remainders or reversions thereupon expectant or
depending, if any be now subsisting and unbarred or otherwise undetermined,
of and in the said capital messuage, lands, tenements, hereditaments, and
premises, hereby granted and released, or mentioned to be hereby granted and
released, or any of them, or any part thereof, the said Abraham Barker for
himself and the said Cecilia his wife, his and her heirs, executors, and adminis-
trators, and the said John Barker for himself, his heirs, executors, and ad-
ministrators, do, and each of them doth, respectively covenant, promise, and
grant, to and with the said David Edwards and Francis Golding, their heirs,
executors, and administrators, by these presents, that they the said Abraham
Barker and Cecilia his wife, and John Barker, shall and will, at the costs and
charfes of the said Abraham Barker, before the end of Michaelmas term next
ensuing the date hereof, acknowledge and levy, before his majesty's justices
of the court of Common Pleas at Westminster, one or more fine or fines, sur
cognizance de droit, come ceo, dc., with proclamations according to the form of
the statutes in that case made and provided, and the usual course of fines in
such cases accustomed, unto the said David Edwards, and his heirs, of the said
capital messuage, lands, tenements, hereditaments, and premises, by such apt
and convenient names, quantities, qualities, number of acres and other de-
scriptions to ascertain the same, as shall be thought meet; which said fine
or fines so as aforesaid, or in any other manner, levied and acknowledged,
or to be levied and acknowledged, shall be and enure, and shall be adjudged,
deemed, construed, and taken, and so are and were meant and intended, to be
and enure, and are hereby declared by all the said parties to these presents to be
and enure, to the use and behoof of the said David Edwards, and his heirs and
assigns; [in order to make a tenant to the praecipe. that a recovery may bfr
suffered] to the intent and purpose that the said David Edwards may. by
virtue of the said fine or fines so covenanted and agreed to be levied as afore-
said, be and become perfect tenant of the freehold of the said capital messuage,
lands, tenements, hereditaments, and all other the premises, to the end that
one or more good and perfect common recovery or recoveries may be thereof
had and suffered, in such manner as is hereinafter for that purpose mentioned.
And it is hereby declared and agreed by and between all the said parties to-
APPENDIX TO BOOK II. 809
these presents, that it shall and" may be lawful to and for the said Francis
Golding, at the costs and charges of the said Abraham Barker, before the end
of Michaelmas term next ensuing the date hereof, to sue forth and prosecute
out of his majesty's high court of Chancery, one or more writ or writs of entry
sur disseisin en le post, returnable before his majesty's Justices of the court
of Common Pleas at Westminster, thereby demanding by apt and convenient
names, quantities, qualities, number of acres, and other descriptions, the said
capital messuage, lands, tenements, hereditaments, and premises, against the
said David Edwards; to which said writ, or writs, of entry he the said David
Edwards shall appear gratis, either in his own proper person, or by hia
attorney thereto lawfully authorized, and vouch over to warranty the" said
Abraham Barker and Cecilia his wife, and John Barker; who shall also gratis
appear in their proper persons, or by their attorney or attornies, thereto law-
fully authorized, and enter into the warranty, and vouch over to warranty
the common vouchee of the same court; who shall also appear, and after im-
parlance shall make default: so as judgment shall and may be thereupon had
and given for the said Francis Golding, to recover the said capital messuage,
lands, tenements, hereditaments, and premises, against the said David Ed-
wards, and for him to recover in value against the said Abraham Barker and
Cecilia his wife, and John Barker, and for them to recover in value against the
said common vouchee, and that execution shall and may be thereupon awarded
and had accordingly, and all and every other act and thing be done and
executed, needful and requisite for the suffering and perfecting of such common
recovery or recoveries, with vouchers as aforesaid, [to enure] And it is hereby
further declared and agreed by and between all the said parties to these
presents, that immediately from and after the suffering and perfecting of the
said recovery or recoveries, so as aforesaid, or in any other manner, or at any
other time or times, suffered or to be suffered, as well these presents and the
assurance hereby made, and the said fine or fines so covenanted to be levied
as aforesaid, as also the said recovery or recoveries, and also all and every
other fine or fines, recovery and recoveries, conveyances, and assurances in the
law whatsoever heretofore had, made, levied, suffered, or executed, or here-
after to be had, made, levied, suffered, or executed, of the said capital messuage,
lands, tenements, hereditaments, and premises, or any of them, or any part
thereof, by and between the said parties to these presents, or any of them, or
whereunto they or any of them are or shall be parties or privies, shall be
and enure, and shall be adjudged, deemed, construed, and taken, and so are
and were meant and intended, to be and enure, and the recoveror or recoverors
in the said recovery or recoveries named or to be named, and his or their heirs,
shall stand and be seised of the said capital messuage, lands, tenements, here-
ditaments, and premises, and of every part and parcel thereof, [to the preced-
ing uses in this deed], to the uses, upon the trusts, and to and for the intents
and purposes, and under and subject to the provisoes, limitations, and agree-
ments, hereinbefore mentioned, expressed, and declared, of and concerning the
same. [Other covenants; for quiet enjoyment] And the said Abraham Barker,
party hereunto, doth hereby, for himself, his heirs, executors, and adminis-
trators, further covenant, promise, grant and agree to and with the said David
Edwards and Francis Golding, their heirs, executors, and administrators, in
manner and form following; that is to say, that the said capital messuage,
lands, tenements, hereditaments, and premises, shall and may at all times
hereafter remain, continue, and be, to and for the uses and purposes, upon the
trusts, and under and subject to the provisoes, limitations, and agreements,
hereinbefore mentioned, expressed, and declared, of and concerning the samy ;
and shall and may be peaceably and quietly had, held, and enjoyed accordingly,
without any lawful let or interruption of' or by the said Abraham Barker or
Cecilia his wife, parties hereunto, his or her heirs or assigns, or of or by any
other person or persons lawfully claiming or to claim from. by. or under, or
in trust for, him, her. them, or any of them; or from, by, or under his or her
ancestors, or any of them; [free from incumbrances] and shall so remain, con-
810
APPENDIX TO BOOK II.
tinue, and be, free and clear, and freely and clearly acquitted, exonerated, and
discharged, or otherwise by the said Abraham Barker or Cecilia his wife,
parties hereunto, his or her heirs, executors, or administrators, well and suffi-
ciently saved, defended, kept harmless, and indemnified, of, from, and against
oil former and other gifts, grants, bargains, sales, leases, mortgages, estates,
titles, troubles, charges, and incumbrances whatsoever, had, made, done, com-
mitted, occasioned, or suffered, or to be had, made, done, committed, occasioned,
or suffered, by the said Abraham Barker or Cecilia his wife, or by his or her
ancestors, or any of them, or by his, her, their, or any of their, act, means,
assent, consent, or procurement: [and for further assurance] And moreover
that he the said Abraham Barker and Cecilia his wife, parties hereunto, and
his or her heirs, and all other persons having or lawfully claiming, or whicli
shall or may have or lawfully claim, any estate, right, title, trust, or interest,
at law or in equity, of, in, to, or out of, the said capital messuage, lands,
tenements, hereditaments, and premises, or any of them, or any part thereof.
by or under or in trust* for him, her, them, or any of them, or by or under his
or her ancestors or any of them, shall and will, from time to time, and at all
times hereafter, upon every reasonable request, and at the costs and charges
of the said David Edwards and Francis Golding, or either of them, their or
either of their heirs, executors, or administrators, make, do, and execute, or
cause to be made, done, and executed, all such further and other lawful and
reasonable acts, deeds, conveyances, and assurances in the law whatsoever, for
the further, better, more perfect, and absolute granting, conveying, settling,
and assuring of the same capital messuage, lands, tenements, hereditaments,
and premises, to and for the uses and purposes, upon the trusts, and under and
subject to the provisoes, limitations, and agreements hereinbefore mentioned,
expressed, and declared, of and concerning the same, as by the said David
Edwards and Francis Golding, or either of them, their or either of their heirs,
executors, or administrators, or their or any of their counsel learned in the
law, shall be reasonably advised, devised, or required: so as such further
assurances contain in them no further or other warranty or covenants than
against the person or persons, his, her, or their heirs, who shall make or do
the same; and so as the party or parties who shall be requested to make such
further assurances, be not compelled or compellable. for making or doing
thereof, to go and travel above five miles from his, her, or their then respective
dwellings, or places of abode. [Power of revocation] Provided lastly, and it is
hereby further declared and agreed by and between all the parties to these
presents, that it shall and may be lawful to and for the said Abraham Barker
and Cecilia his wife, John Barker and Katherine his intended wife, and David
Edwards, at any time or times hereafter, during their joint lives, by any
writing or writings under their respective hands and seals, and attested by
two or more credible witnesses, to revoke, make void, alter or change all and
every or any the use and uses, estate and estates, herein and hereby before
limited and declared, or mentioned or intended to be limited and declared, of
and in , the capital messuage, lands, tenements, hereditaments, and premises
aforesaid, or of and in any part or parcel thereof, and to declare new and
other uses of the same, or of any part or parcel thereof, any thing herein con-
tained to the contrary thereof in any wise notwithstanding. [Conclusion]
In witness whereof the parties to these presents their hands and seals have
subscribed and set, the day and year first above written:
Sealed and delivered, beings
first duly stamped, in the j
presence of
George Carter.
William Browne.
Abraham Barker. (L. S.)
Cecilia Barker. (L.S.)
David Edwards. (L.S.)
Francis Golding. (L. S.)
Charles Browne. (L. S.)
Richard More. (L. S.)
John Barker. (L. S.)
Katherine Edwards. (L. S.)
APPENDIX TO BOOK II. 811
No. m.
AN OBLIGATION, OR BOND, WITH CONDITION FOR THE PAYMENT
OF MONEY.
KNOW ALL MEN by these presents, that I David Edwards of Lincoln's Inn,
in the county of Middlesex, esquire, am held and firmly bound to Abraham
Barker of Dale Hall in the county of Norfolk, esquire, in ten thousand pounds
of lawful money of Great Britain, to be paid to the said Abraham Barker, or
his certain attorney, executors, administrators, or assigns; for which payment
well and truly to be made, I bind myself, my heirs, executors, and adminis-
trators, firmly by these presents, sealed with my seal. Dated the fourth day
of September in the twenty-first year of the reign of our sovereign lord George
the Second, by the grace of God king of Great Britain, France, and Ireland,
defender of the faith, and so forth, and in the year of our Lord one thousand
seven hundred and forty-seven.
Thp condition of this obligation is such, that if the above-bounden David
Edwards, his heirs, executors, or administrators, do and shall well and truly
pay, or cause to be paid, unto the above-named Abraham Barker, his executors,
administrators, or assigns, the full sum of five thousand pounds of lawful
British money, with lawful interest for the same, on the fourth day of March
next ensuing the date of the above-written obligation, then this obligation
shall be void and of none effect, or else shall be and remain in full force and
virtue.
Sealed and delivered, being "^
first duly stamped, in the I Dayid Edwards> (L> g>)
presence or
George Carter. J
William Browne.
No. IV.
A FINE OF LANDS SUR COGNIZANCE DE DROIT, COME CEO, &c.
SECT. 1. WBIT OF COVENANT; OB PRAECIPE.
GEORGE the Second, by the grace of God, of Great Britain, France, and
Ireland king, defender of the faith, and so forth, to the sheriff of Norfolk,
greeting. Command Abraham Barker, esquire, and Cecilia his wife, and John
Barker, esquire, that justly and without delay they perform to David Edwards,
esquire, the covenant made between them of two messuages, two gardens,
three hundred acres of land, one hundred acres of meadow, two hundred acres
of pasture, and fifty acres of wood, with the appurtenances, in Dale; and
unless they shall so do, and if the said David shall give you security of prose-
cuting his claim, then summon by good summoners the said Abraham, Cecilia,
and John that they appear before our justices at Westminster, from the day of
St. Michael in one month, to shew wherefore they have not done it: and have
you there the summoners, and this writ. Witness ourself at Westminster the
ninth day of. October, in the twenty-first year of our reign.
[Sheriff's return] Sum- ^
Pledges of ) John Doe. moners of the within- I John Den.
prosecution. \ Richard Roe. named Abraham, Ce- f Richard Fen.
cilia, and John.
812 APPENDIX TO BOOK II.
SECT. 2. THE LICENCE TO AGREE.
Norfolk, ) DAVID EDWABDS, esquire, gives to the lord the king ten
to wit. ) marks, for license to agree with Abraham Barker, esquire, of
a plea of covenant of two messuages, two gardens, three hundred acres of
land, one hundred acres of meadow, two hundred acres of pasture, and fifty
acres of wood, with the appurtenances, in Dale.
SECT. 3. THE CONCOBD.
AND the agreement is such, to wit, that the aforesaid Abraham, Cecilia,
and John have acknowledged the aforesaid tenements, with the appurtenances,
to be the right of him the said David, as those which the said David hath of
the gift of the aforesaid Abraham, Cecilia, and John ; and those they have
remised and quitted claim, from them and their heirs, to the aforesaid David,
and his heirs, for ever. And further, the same Abraham, Cecilia, and John
have granted, for themselves and their heirs, that they will warrant to the
aforesaid David, and his heirs, the aforesaid tenements, with the appurten-
ances, against all men, for ever. And for this recognition, remise, quit-claim,
warranty, fine, and agreement, the said David hath given to the said Abraham,
Cecilia, and John, two hundred pounds sterling.
SECT. 4. THE NOTE OB ABSTBACT.
Norfolk, ) BETWEEN David Edwards, esquire, complainant, and Abra-
to wit. \ ham Barker, esquire, and Cecilia his wife, and John Barker,
esquire, deforciants, of two messuages, two gardens, three hundred acres of
land, one hundred acres of meadow, two hundred acres of pasture, and fifty
acres of wood, with the appurtenances, in Dale, whereupon a plea of covenant
was summoned between them: to wit, that the said Abraham, Cecilia, and
John, have acknowledged the aforesaid tenements, with the appurtenances, to
be the right of him the said David, as those which the said David hath of the
gift of the aforesaid Abraham, Cecilia, and John; and those they have remised
and quitted claim, from them and their heirs, to the aforesaid David and his
heirs for ever. And further, the same Abraham. Cecilia, and John, have
granted for themselves, and their heirs, that they will warrant to the afore-
said David, and his heirs, the aforesaid tenements, with the appurtenances,
against all men, for ever. And for this recognition, remise, quit-claim, war-
ranty, fine, and agreement, the said David hath given to the said Abraham,
Cecilia, and John, two hundred pounds sterling.
SECT. 5. THE FOOT, CHIBOGBAPH, OB INDENTURES OF THE FINE.
Norfolk, ) THIS is THE FINAL AGREEMENT, made in the court of the
to wit. ) lord the king at Westminster, from the day of Saint Michael
in one month, in the twenty-first year of the. reign of the lord George the
Second, by the grace of God, of Great Britain, France, and Ireland king, de-
fender of the faith, and so forth, before John Willes, Thomas Abney, Thomas
Burnet, and Thomas Birch, justices, and other faithful subjects of the lord the
king then there present, between David Edwards, esquire, complainant, and
Abraham Barker, esquire, and Cecilia his wife, and John Barker, esquire,
deforciants, of two messuages, two gardens, three hundred acres off land, one
hundred acres of meadow, two hundred acres of pasture, and fifty acres of
wood, with the appurtenances, in Dale, whereupon a plea of covenant was
summoned between them in the said court; to wit. that the aforesaid Abraham,
Cecilia, and John, have acknowledged the aforesaid tenements, with the ap-
purtenances, to be the right of him the said David, as those which the said
David hath of the gift of the aforesaid Abraham, Cecilia, and John; and those
APPENDIX TO BOOK II. 813
they have remised and quitted claim, from them and their heirs, to the afore-
said David, and his heirs, for ever. And further, the same Abraham, Cecilia,
md John, have granted for themselves and their heirs, that they will warrant
to the aforesaid David and his heirs, the aforesaid tenements, with the ap-
purtenances, against all men, for ever. And for this recognition, remise, quit-
claim, warranty, fine, and agreement, the said David hath given to the said
Abraham, Cecilia, and John, two hundred pounds sterling.
SECT. 6. PROCLAMATIONS, ENDORSED UPON THE FINE, ACCORDING TO THE
STATUTES.
THE FIRST proclamation was made the sixteenth day of November, in the
term of Saint Michael, in the twenty-first year of the king within-written.
The second proclamation was made the fourth day of February, in the term
of Saint Hilary, in the twenty-first year of the king within-written.
The third proclamation was made the thirteenth day of May, in the term
of Easter, in the twenty-first year of the king within-written.
The fourth proclamation was made the twenty-eighth day of June, in the
term of the holy Trinity, in the twenty-second year of the king within-written.
No. V.
A COMMON RECOVERY OF LANDS WITH* DOUBLE VOUCHER.
SECT. 1. WRIT OF ENTRY SUB DISSEISIN IN THE POST; OR PRAECIPE.
GEORGE the Second, by the grace of God. of Great Britain, France, and
Ireland king, defender of the faith, and so forth, to the sheriff of Norfolk,
greeting. Command David Edwards, esquire, that, justly and without delay,
he render to Francis Golding, clerk, two messuages, two gardens, three hundred
acres of land, one hundred acres of meadow, two hundred acres of pasture, and
fifty acres of wood, with the appurtenances, in Dale, which he claims to be his
right and inheritance, and into which the said David hath not entry, unless
after the disseisin, which Hugh Hunt thereof unjustly, and without judgment,
hath made to the aforesaid Francis, within thirty years now last past, as he
saith, and whereupon he complains that the aforesaid David deforceth him.
And unless he shall so do, and if the said Francis shall give you security of
prosecuting his claim, then summon by good summoners the said David, that
he appear before our justices at Westminster on the octave of Saint Martin,
to shew wherefore he hath not done it: and have you there the summoners,
and this writ. Witness ourself at Westminster, the twenty-ninth day of
October, in the twenty-first year of our reign.
, . T , ~. [Sheriff's return] Sum- ( T , -p.
Pledges of | John Doe L ^^ j^^ J h * JJn
prosecution. ( Richard Roe. named Davjd> | Richard 1
SECT. 2. EXEMPLIFICATION OF THE RECOVERY ROLL.
GEORGE the Second, by the grace of God, of Great Britain, France, and
Ireland king, defender of the faith, and so forth, to all to whom these our
present letters shall come, greeting. Know ye, that among the pleas of land
enrolled at Westminster, before Sir John Willes, knight, and his fellows, our
justices of the bench, of the term of Saint Michael, in the twenty-first year
of our reign, upon the fifty-second roll it is thus contained: [Return. Demand
*Note. that, if the recovery be had
with single voucher, the parts marked
"thus" in sect. 2, are omitted.
814 APPENDIX TO BOOK II.
against the tenant] Entry returnable on the octave of Saint Martin. Norfolk,
to wit: Francis Golding, clerk, in his proper person demandeth against David
Edwards, esquire, two messuages, two gradens, three hundred acres of land,
one hundred acres of meadow, two hundred acres of pasture, and fifty acres
of wood, with the appurtenances, in Dale, as his right and inheritance, and into
which the said David hath not entry, unless after the disseisin which Hugh
Hunt thereof unjustly, and without judgment, hath made to the aforesaid
Francis, within thirty years now last past. [Count] And whereupon he saith,
that he himself was seized of the tenements aforesaid, with the appurtenances,
in his demesne as of fee and right, in time of peace, in the time of the lord
the king that now is, [Esplees] by taking the profits thereof to the value [*of
six shillings and eight pence, and more, in rents, corn, and grass] : and into
which [the said David hath not entry, unless as aforesaid] and thereupon he
bringeth suit [and good proof]. [Defence of the tenant. Voucher. Warranty.]
And the said David in his proper person comes and defendeth his right, when
[and where it shall behove him], and thereupon voucheth to warranty "John
"Barker, esquire; who is present here in court in his proper person, and the
" tenements aforesaid, with the appurtenances to him freely warranteth [and
" prays that the said Francis may count against him.]. [Demand against the
" vouchee] And hereupon the said Francis demandeth against the said John,
" tenant by his own warranty, the tenements aforesaid, with the appurten-
" ances, in form aforesaid, &c. [Count] And whereupon he saith, that he
" himself was seised of the tenements aforesaid, with the appurtenances, in
" his demesne as of fee and right, in time of peace, in the time of the lord
" the king that now is, by taking the profits thereof to the value, &c. And
" into which, &c. And thereupon he bringeth suit. &c. [Defence of the
" vouchee] And the aforesaid John, tenant by his own warranty, defends his
" right, when, &c., and thereupon he further voucheth to warranty " Jacob
Moreland ; who is present here in court in his proper person, and the tenements
aforesaid, with the appurtenances, to him freely warranteth, &c. [Second
voucher. Warranty. Demand against the common vouchee. Count] And
hereupon the said Francis demandeth against the said Jacob, tenant by his
own warranty, the tenements aforesaid, with the appurtenances, in form afore-
said, &c. And whereupon he saith, that he himself was seized of the tene-
ments aforesaid, with the appurtenances, in his demesne as of fee and right,
in t : Tne of peace, in the time of the lord the king that now is, by taking the
profits thereof to the value. &c. And into which, &c. And thereupon he
bringeth suit, &c. [Defence of the common vouchee] And the aforesaid Jacob,
tenant by his own warranty, defends his right, when, &e. [Plea, nul disseisin]
And saith that the aforesaid Hugh did not disseise the aforesaid Francis of
the tenements aforesaid, as the aforesaid Francis by his writ and count afore-
said above doth suppose: and of this he puts himself upon the country. [Im-
parlance. Default of the common vouchee] And the aforesaid Francis there-
upon craveth leave to imparl; and he hath it. And afterwards the aforesaid
Francis cometh again here into court, in this same term in his proper person,
and the aforesaid Jacob, though solemnly called, cometh not again, but hath
departed in contempt of the court, and maketh default. [Judgment for the
demandant] Therefore it is considered, that the aforesaid Francis do recover
his seisin against the aforesaid David of the tenements aforesaid, with the
appurtenances: and that the said David have of the land of the aforesaid
"John, to the value [of the tenements aforesaid]; and further, that the said
"John [Recovery in value] have of the land of the said" Jacob to the value
[of the tenements aforesaid] [Amercement] And the said Jacob in mercy.
And hereupon the said Francis prays a writ of the lord the king, to be directed
to the sheriff of the county aforesaid, to cause him to have full seisin of the
*The clauses between hooks are no
otherwise expressed in the record
than bv an &c.
APPENDIX TO BOOK II. 815
tenements aforesaid, with the appurtenances: and it is granted unto him,
returnable here without delay. [Award of the writ reisin, and return] After-
wards, that is to say, the twenty-eighth day of November in this same term,
here cometh the said Francis in his proper person; and the sheriff, namely, Sir
Charles Thompson, knight, now sendeth, that he by virtue of the writ afore-
said to him directed, on the twenty-fourth day of the same month, did cause
the said Francis to have full seisin of the tenements aforesaid with the ap-
purtenances, as he was commanded. [Exemplification continued] All and
singular which premises, at the request of the said Francis, by the tenor of
these presents, we have held good to be exemplified. In testimony whereof
we have caused our seal, appointed for sealing writs in the Bench aforesaid,
to be affixed to these presents. [Teste] Witness Sir John Willes, knight, at
Westminster, the twenty-eighth day of November, in the twenty-first year of
our reign.
COOKE.
APPENDIX TO BOOK III.
No. I.
Proceedings on a Writ of Right Patent.
Sect. 1. Writ of RIGHT Patent in the COUBT BAROW.
GEOEGE the Second, by the Grace of God, of Great Britain, France, and
Ireland King, Defender of the Faith, and so forth, to Willoughby, Earl of
Abingdon, greeting. We command you that without delay you hold full right
to William Kent, Esquire, of one messuage and twenty acres of land, with the
appurtenances, in Dorchester, which he claims to hold of you by the free
service of one penny yearly in lieu of all services, of which Richard Allen de-
forces him. And unless you do so, let the Sheriff of Oxfordshire do it, that
we no longer hear complaint thereof for defect of right. WITNESS ourself at
Westminster, the twentieth day of August, in the thirtieth year of our reign.
Pledges of prosecution, {
Sect. 2. Writ of TOLT, to remove it into the COUNTY COUBT.
CHARLES MOBTON, Esquire, Sheriff of Oxfordshire, to John Long, Bailiff
errant of our Lord the King and of myself, greeting. BECAUSE by the com-
plaint of William Kent, Esquire, personally present at my County Court, to
wit, on Monday, the sixth day of September in the thirtieth year of the reign
of our Lord GEORGE the Second, by the grace of God, of Great Britain, France,
and Ireland King, Defender of the Faith, and so forth, at Oxford, in the shire-
house there holden, I am informed, that although he himself the writ of our
said lord the King of right patent directed to Willoughby, Earl of Abingdon,
for this that [*ii] *he should hold full right to the said William Kent, of one
messuage and twenty acres of land, with the appurtenances, in Dorchester,
within my said county, of which Richard Allen deforces him, hath brought to
the said Willoughby, Earl of Abingdon; yet for that the said Willoughby,
Earl of Abingdon, favoureth the said Richard Allen in this part, and hath
hitherto delayed to do full right according to the exigence of the said writ,
I command you on the part of our said Lord the King, firmly enjoining, that
in your proper person you go to the Court Baron of the said Willoughby, Earl
of Abingdon, at Dorchester aforesaid, and take away the plaint, which there
is between the said William Kent and Richard Allen by the said writ, into my
County Court to be next holden'; and summon by good summoners the said
Richard Allen, that he be at my County Court, on Monday, the fourth day of
October next coming, at Oxford, in the shirehouse there to be holden, to answer
to the said William Kent thereof. And have you there then the said plaint,
the summoners, and this precept. GIVEN in my County Court, at Oxford, in
the shirehouse, the sixth day of September, in the year aforesaid.
Sect. 3. Writ of PONE, to remove it into the Court of COMMON PLEAS.
GEORGE the Second, by the Grace of God, of Great Britain, France, and
Ireland King, Defender of the Faith, and so forth, to the Sheriff of Oxfordshire,
[816]
APPENDIX TO BOOK III. 817
greeting. PTT at the request of William Kent, before our justices at West-
minster, on the Morrow of All Souls, the plaint which is in your County Court
by our writ of right, between the said William Kent, demandant, and Richard
Allen, tenant, of one messuage and twenty acres of land, with the appurten-
ances, in Dorchester; and summon by good summoners the said Richard Allen,
that he be then there, to answer to the said William Kent thereof. And
have you there the summoners and this writ. WITNESS ourself at West-
minster, the tenth day of September, in the thirtieth year of our reign.
Sect. 4. Writ of RIGHT, quia Dominus remist Curiam.
GEORGE the Second, by the Grace of God, of Great Britain, France, and
Ireland King, Defender of the Faith, and so forth, to the Sheriff of Oxford-
shire, greeting. COMMAND Richard Allen, that he justly and without delay
render unto William Kent one messuage and twenty acres of land, with the
appurtenances, in Dorchester, which he claims to be his right and inheritance,
and whereupon he complains that the aforesaid Richard, unjustly deforces him.
And unless he shall so do, and [*iii] *if the said William shall give you security
of prosecuting his claim, then summon by good summoners the said Richard,
that he appear before our justices at Westminster, on the Morrow of All
Souls, to show wherefore he hath not done it. And have you there the sum-
moners and this writ. WITNESS ourself at Westminster, the twentieth day of
August, in the thirtieth year of our reign. Because Willoughby, Earl of
Abingdon, the chief lord of that fee, hath thereupon remised unto us his court.
Pledges of (JOHN DOE, [Sheriffs return] Sum- I j D
proslution, U.CH. Eo E . "' '
Sect. 5. The Record, with the award of Battel.^
PLEAS at Westminster before Sir John Willes, Knight, and his brethern,
Justices of the Bench of the Lord the King at Westminster, of the term
of Saint Michael, in the thirtieth year of the reign of the Lord GEORGE
the Second, by the grace of God, of Great Britain, France, and Ireland
King, Defender of the Faith, &c.
[Writ] Oxon, ( WILLIAM KENT, Esquire, by James Parker, his attorney,
to unt. { demands against Richard Allen, Gentleman, one messuage
and twenty acres of land, with the appurtenances, in Dorcnester, as iaa ng..i
and inheritance, by writ of the Lord the King of right, [Dominus remisit
curiam] BECAUSE Willoughby, Earl of Abingdon, the chief lord of that fee,
hath now thereupon remised to the Lord the King his court. [Count] AND
WHEREUPON he saith, that he himself was seised of the tenements aforesaid,
with the appurtenances, in his demesne as of fee and right, in the time of
peace, in the time of the Lord GEORGE the First, late King of Great Britain,
[Esplees] by taking the esplees thereof to the value! [of ten shillings, and
more, in rents, corn, and grass.] And that such is his right he offers [suit
and good proof.] [Defence] AND the said Richard Allen, by Peter Jones, his
attorney, comes and defends the right of the said William Kent, and his
seisin, when [and where it shall behove him.] and all [that concerns it,] and
whatsoever [he ought to defend] and chiefly the tenements aforesaid, with the
appurtenances, as of fee and right, [namely, one messuage and twenty acres
of land, with appurtenances in Dorchester.] [Wager of battle] AND this he
is ready to defend by the body of his freeman, George Rumbold by name, who
t As to battle, see page 337, n. 7. the Appendix, are usually no other-
t N. B. The clauses between hooks, wise expressed in the Records than
in this and the subsequent numbers of by an &c.
52
818 APPENDIX TO BOOK III.
is present here in court, ready to defend the same by his body, or in what
manner soever the Court of the Lord the King shall consider that he ought to
defend. [*iv] *And if any mischance should befal the said George, (which God
defend, he is ready to defend the same by another man, who [is bounden and
able to defend it.] [Replication] AND the said William Kent saith, that the
said Richard Allen unjustly defends the right of him the said William, and his
seisin, &c., and all, &c., and whatsoever, &c., and chiefly of the tenements
aforesaid with the appurtenances, as of fee and right, &c. ; because he saith,
that he himself was seised of the tenements aforesaid, with the appurtenances,
in his demesne as of fee and right, in the time of peace, in the time of the said
Lord GEORGE the First, late King of Great Britain, by taking the esplees
thereof to the value, &c. [Joinder of battel.] AND that such is his right, he is
prepared to prove by the body of his freeman, Henry Broughton by name, who
is present here in Court ready to prove the same by his body, or in what
manner soever the Court of the Lord the King shall consider that he ought to
prove; and if any mischance should befal the said Henry, (which God defend,)
ho is ready to prove the same by another man, who, &c. AND hereupon it is
demanded of the said George and Henry, whether they are ready to make
battel, as they beefore have waged it; who say that they are. [Gages given]
AND the same George Rumbold giveth gage of defending, and the said Henry
Broughton giveth gage of proving; and such engagement being given as the
manner is, it is demanded of the said William Kent and Richard Allen, if they
<>an say anything wherefore battel ought not to be awarded in this case; who
say that they cannot. [Award of Battel] THEREFORE IT is CONSIDERED, that
battel be made thereon, &c. [Pledges] AND the said George Rumbold findeth
pledges of battel, to wit, Paul Jenkins and Charles Carter; and the said Henry
Broughton findeth also pledges of battel, to wit, Reginald Read and Simon
Taylor. [Continuance] AND THEREUPON day is here given as well to the said
William Kent as to the said Richard Allen, to wit, on the morrow of Saint
Martin next coming, by the assent as well of the said William Kent as of the
said Richard Allen. And it is commanded that each of them then have here
his champion, sufficiently furnished with competent armour as becomes him,
and ready to make the battel aforesaid: and that the bodies of them in the
mean time be safely kept, on peril that shall fall thereon. [Champions appear]
AT which day here come as well the said William Kent as the said Richard
Allen by their attornies aforesaid, and the said George Rumbold and Henry
Broughton in their proper persons likewise come, sufficiently furnished with
competent armour as becomes them, ready to make the battel aforesaid, as
they had before waged it. [Adjournment to Tothill Fields] AND hereupon
day is further given by the court here, as well to the said William Kent as to
the said Richard Allen, at Tothill, near the city of Westminster, in the county
of Middlesex, to wit, on the Morrow of the Purification of the Blessed Virgin
Mary next coming, by the assent as well of the said [*v] *William as of the
aforesaid Richard. And it is commanded, that each of them have then there
his champion, armed in the form aforesaid, ready to make the battel afore-
said, and that their bodies in the mean time, &c. At which day here, to wit,
at Tothill aforesaid, comes the said Richard Allen by his attorney aforesaid,
and the said George Rumbold and Henry Broughton in their proper persons
likewise come, sufficiently furnished with competent armour as becomes them,
ready to make the battel aforesaid, as they before had waged it. [Demandant
nonsuit] And the said William Kent being solemnly called doth not come, nor
hath prosecuted his writ aforesaid. [Final judgment for the tenant] THERE-
FORE IT is CONSIDERED, that the satne William and his pledges of prosecuting,
to wit, John Doe and Richard Roe, be in mercy for his false complaint, and
that the same Richard go thereof without a day, &c., and also that the said
Richard do hold the tenements aforesaid with the appurtenances, to him and
his heirs, quit of the said William and his heirs, for ever, Ac.
APPENDIX TO BOOK III. 819
Sect. 6. Trial by the Grand Assize.
[Defence] And the said Richard Allen, by Peter Jones, his attorney,
comes and defends the right of the said William Kent, and his seisin, when,
&c. and all, &c. and whatsoever, &c. and chiefly of the tenements aforesaid
with the appurtenances, as of fee and right, &c. [Mise] and puts himself upon
the grand assize of the Lord the King, and prays recognition to be made,
whether he himself hath greater right to hold the tenements aforesaid with
the appurtenances to him and his heirs as tenants thereof as he now holdeth
them, or the said William to have the said tenements with the appurtenances,
as he above demandeth them. [Tender of demi-mark] AND he tenders here
in Court six shillings and eight-pence to the use of the Lord the now King, &c.
for that, to wit, it may be inquired of the time [of the seisin alleged by the
said William.] And he therefore prays, that it may be inquired by the assize,
whether the said William Kent was seised of the tenements aforesaid with
the appurtenances in his demesne as of fee in the time of the said Lord the
King George the First, as the said William in his demand before hath alleged.
[Summons of the knights] THEREFORE it is commanded the sheriff, that he
summon by good summoners four lawful knights of his county, girt with
swords, that they be here on the octaves of Saint Hilary next coming, to make
election of the assize aforesaid. The same day is given as well to the said
William Kent as to the said Richard Allen here, &c. At which day here come
as well the said William Kent, as the said Richard Allen; [Return] and the
sheriff, to wit, Sir Adam Alstone. Knight, now returns, that he had caused
to be summoned Charles Stephens, Randel Wheler, Toby Cox, and Thomas
Munday, four lawful knights of [*vi] *his country, girt with swords, by John
Doe and Richard Roe his bailiffs, to be here at the said octaves of Saint Hilary,
to do as the said writ thereof commands and requires; and that the said sum-
moners. and each of them, are mainprized by John Day and James Fletcher.
[Election of the recognitors] Whereupon the said Charles Stephens, Randel
Wheler. Toby Cox. and Thomas Munday, four lawful knights of the county
aforesaid, girt with swords, being called, in their proper persons come, and
being sworn upon their oath in the presence of the parties aforesaid, chose of
themselves and others twenty-four, to wit, Charts Stephens, Randel Wheler,
Toby Cox. Thomas Munday, Oliver Greenway, John Boys, Charles Price,
knights; Daniel Prince. William Day, Roger Lucas, Patrick Fleming, James
Harris. John Richardson, Alexander Moore, Peter Payne, Robert Quin, Archi-
bald Stuart) Bartholomew Norton, and Henry Davis, esquires; John Porter,
Christopher Ball, Benjamin Robinson, Lewis Long, William Kirby, gentlemen,
good and lawful men of the county aforesaid, who neither are of kin to the
said William Kent nor to the said Richard Allen, to make recognition of the
grand assize aforesaid. [Venire facias] THEREFORE it is commanded the sheriff,
that he cause them to come here from the day of Easter in fifteen days, to
make the recognition aforesaid. The same day is there given to the parties
aforesaid. [Recognitors sworn] At which day here come as well the said
William Kent as the said Richard Allen, by their attornies aforesaid, [Verdict
for the demandant] and the recognitors of the assize, whereof mention is made
above, being called come, and certain of them, to wit, Charles Stephens, Ran-
del Wheler, Toby Cox, Thomas Munday, Charles Price, knights; Daniel Prince,
Roger Lucas, William Day, James Harris, Peter Payne, Robert Quin, Henry
Davis. John Porter, Christopher Ball, Lewis Long, and William Kirby, being
elected, tried, and sworn upon their oath say, that the said William Kent hath
more right to have the tenements aforesaid with the appurtenances to him
and his heirs, as he demandeth the same, than the said Richard Allen to hold
the same as he now holdeth them, according as the said William Kent by his
writ aforesaid hath supposed. [Judgment] THEREFORE IT is CONSIDERED, that
the said William Kent do recover his seisin against the said Richard Allen of
the tenements aforesaid, with the appurtenances, to him and his heirs, quit
of the said Richard Allen and his heirs for ever: and the said Richard Allen
in mercv, &c.
820 . APPENDIX TO BOOK 111.
[*vii] "No. II.
Proceedings on an Action of Trespass in Ejectment, by Original,
in the King's Bench.
Sect. 1. The Original Writ.
[Si fecerit te securum] GEORGE the Second, by the grace of God, of Great
Britain, France, and Ireland King, Defender of the Faith, and so forth, to the
Sheriff of Berkshire, greeting. IF Richard Smith shall give you security of
prosecuting his claim, then put by gage and safe pledges William Stiles, late
of Newbury, gentleman, so that he be before us on the morrow of All-Souls,
wheresoever we shall then be in England, to show wherefore with force and
arms he entered into one messuage with the appurtenances, in Sutton, which
John Rogers, Esquire, hath demised to the aforesaid Richard, for a term which
is not yet expired, and ejected him from his said farm, and other enormities
to him did, to the great damage of the said Richard, and against our peace.
And have you there the names of the pledges and this writ. WITNESS ourself
at Westminster,, the twelfth day of October, in the twenty-ninth year of our
reign.
[Sheriff's return] The }
Pledges of ) JOHN DOE, within-named William ' JOHN DEN.
prosecution, j RICHARD ROE. Stiles is attached by { RICHARD FEN.
pledges. J
Sect. 2. Copy of the Declaration against the casual Ejector, who gives Notice
thereupon to the Tenant in Possession,
Michaelmas, the 29th of King George the Second.
Berks, \ WILLIAM STILES, late of Newbury in the said county, gentleman,
to wit. I was attached to answer Richard Smith, of a plea, wherefore with
force and arms he entered into one messuage with the appurtenances, in
Sutton in the county aforesaid, which John Rogers, Esquire, demised to the
said Richard Smith for a term which is not yet expired, and ejected him from
his said farm, and other wrongs to him did, to the great damage of the said
Richard, and against the peace of the Lord the King, &c. And whereupon the
said Richard by [*vii] *Robert Martin his attorney complains, that whereas the
said'John Rogers, on the first day of October, in the twenty-ninth year of the
reign of the Lord the King that now is, at Sutton aforesaid, had demised to
the same Richard the tenement aforesaid, with the appurtenances, to have and
to hold the said tenement, with the appurtenances, to the said Richard and
his assigns, from the Feast of Saint Michael the Archangel then last past, to
the end and term of five years from thence next following and fully to be
complete and ended, by virtue of which demise the said Richard entered into
the said tenement, with the appurtenances, and was thereof possessed; and
the said Richard being so possessed thereof, the said William afterwards, that
is to say, on the said first day of October in the said twenty-ninth year, with
force and arms, that is to say, with swords, staves, and knives, entered into
the said tenement, with the appurtenances, which the said John Rogers
demised to the said Richard in form aforesaid for the term aforesaid, which
is not yet expired, and ejected the said Richard out of his said farm, and other
wrongs to him did, to the great damage of the said Richard, and against the
peace of the said Lord the King; whereby the said Richard saith, that he is
injured and damaged to the value of twenty pounds. And thereupon he brings
suit, c.
MARTIN, for the plaintiff, ) Pledges of 1 JOHN DOE,
PETERS', for the defendant, f prosecution. / RICHARD ROE.
APPENDIX TO BOOK III. 821
[Notice.]
Mr. GEORGE SAUNDERS,
I am informed that you are in possession of, or claim title to, the premises
mentioned in this declaration of ejectment, or to somei part thereof; and I,
being sued in this action as a casual ejector, and having no claim or title to
the same, do advise you to appear next Hilary Term in his Majesty's Court
of King's Bench at Westminster, by some attorney of that Court, and then
and there by a rule to be made of the same Court, to cause yourself to be made
defendant in my stead; otherwise I shall suffer judgment to be entered against
me, and you will be turned out of possession.
Your loving friend,
WILLIAM STILES,
5th January, 1756.
[*ix] *Sect. 3. Tlw Rule of Court.
Hilary Term, in the twenty-ninth Year of King GEORGE the Second.
Berks, < IT is ORDERED by the Court, by the assent of both parties, and their
to wit. \ attornies, that George Saunders, gentleman, may be made defend-
ant, in the place of the now defendant, William Stiles, and shall immediately
appear to the plaintiff's action, and shall receive a declaration in a plea of
trespass and ejectment of the tenements in question, and shall immediately
plead thereto Not Guilty: and, upon the trial of the issue, shall confess lease,
entry, and ouster, and insist upon his title only. And if upon the trial of the
issue, the said George do not confess lease, entry, and ouster, and by reason
thereof the plaintiff cannot prosecute his writ, then the taxation of costs upon
such non pros, shall cease, and the said George shall pay such costs to the
plaintiff, as by the Court of our Lord the King here shall be taxed and ad-
judged, for such his default in non-performance of this rule; and judgment
shall be entered against the said William Stiles, now the casual ejector, by
default. And it is further ordered, that if upon the trial of the said issue a
verdict shall be given for the defendant, or if the plaintiff shall not prosecute
his writ upon any other cause than for the not confessing lease, entry, and
ouster as aforesaid, then the lessor of the plaintiff shall pay costs, if the
plaintiff himself doth not pav them.
By the Court.
MARTIN, for the plaintiff,
NEWMAN, for the defendant.
Sect. 4. The Record'.
PLEAS before the Lord the King at Westminster, of the Term of Saint Hilary,
in the twenty-ninth Year of the Reign of the Lord George the Second,
by the grace of God, of Great Britain, France, and Ireland King, Defender
of the Faith, &c.
Berks, \ GEORGE SAUNDERS, late of Sutton in the county aforesaid, gentle-
to wit. } man, was attached to answer Richard Smith, of a plea, wherefore
with force and arms he entered into one messuage, with the appurtenances, in
Sutton, which John Rogers, Esq. hath demised to the said Richard for a term
which is not yet expired, and ejected him from his said farm, and other
wrongs to him did, to the great damage of the said Richard, and against the
peace of the Lord the King that [*x] *now is. [Declaration, or count] AND
WHEREUPON the said Richard by Robert Martin, his attorney, complains, that
whereas the said John Rogers on the first day of October in the twenty-ninth
year of the reign of the Lord the King that now is, at Sutton aforesaid, had
demised to the same Richard the tenement aforesaid, with the appurtenances,
to have and to hold the said tenement, with the appurtenances, to the said
Richard and his assigns, from the feast of Saint Michael the Archangel then
822 APPENDIX TO BOOK III.
last past, to the end and term of five years from thence next following and
fully to be complete and ended; by virtue of which demise the said Richard
entered into the said tenement, with the appurtenances, and was thereof
possessed: and, the said Richard being so possessed thereof, the said George
afterwards, that is to say, on the first day of October in the said twenty-
ninth year, with force and arms, that is to say, with swords, staves, and
knives, entered into the said tenement with the appurtenances, which the said
John Rogers demised to the said Richard in form aforesaid for the term afore-
said, which is not yet expired, and ejected the said Richard out of his said
farm, and other wrongs to him did, to the great damage of the said Richard,
and against the peace of the said Lord the King; whereby the said Richard
saith that he is injured and endamaged to the value of twenty pounds; and
thereupon he brings suit, [and good proof.] [Defence] AND the aforesaid
George Sanders, by Charles Newman, his attorney comes and defends the force
and injury, when [and where it shall behove him;] [Plea, not guilty] and
saith that he is in no wise guilty of the trespass and ejectment aforesaid, as
the said Richard above complains against him; [Issue] and thereof he puts
himself upon the country; and the said Richard doth likewise the same;
[Venire awarded] THEREFORE let a jury come thereupon before the Lord the
King, on the octave of the purification of the blessed Virgin Mary,
wheresoever he shall then be in England, who neither [are of kin to the said
Richard, nor to the said George,] to recognize [whether the said George be
guilty of the trespass and ejectment aforesaid;] because as well [the said
George as the said Richard, between whom the difference is, have put them-
selves on the said jury.] The same day is there given to the parties aforesaid.
[Respite, for default of jurors] AFTERWARDS the process therein, being con-
tinued between the said parties of the plea aforesaid by the jury, is put
between them in respite, before the Lord the King, until the day of
Easter in fifteen days, [Nisi prius] wheresoever the said Lord the King shall
then be in England; unless the justices of the Lord the King assigned to take
assises in the county aforesaid, shall have come before that time, to wit, on
Monday the eighth day of March, at Reading in the said county, by the form
of the statute [in that case provided], by reason of the default of the jurors,
[summoned to appear as aforesaid.] At which day before the Lord the King,
at Westminster, come the parties aforesaid by their attornies aforesaid; and
the aforesaid justices of [*xi] *assise, before whom [the jury aforesaid came,]
sent here their record before them, had in these words, to wit. [Postea] AFTER-
WARDS, at the day and place within contained, before Heneage Legger, Esquire,
one of the Barons of the Exchequer of the Lord the King, and Sir John Eardley
Wilmot, Knight, one of the. justices of the said Lord the King, assigned to
hold pleas before the King himself, justices of the said Lord the King, assigned
to take assises in the county of Berks by the form of the statute [in that case
provided.] come as well the within-named Richard Smith, as the within-written
George Saunders, by their attornies within contained; and the jurors of the
jury whereof mention is within made being called, certain of them, to wit,
Charles Holloway, John Hooke, Peter Graham, Henry Cox, William Brown,
and Francis Oakley, come, and are sworn upon that jury; and because the
rest of the jurors of the same jury did not appear, [Tales de circumstantibus]
therefore others of the by-standers being chosen by the sheriff, at the request
of the said Richard Smith, and by the command of the justices aforesaid, are
appointed anew, whose names are affixed to the panel within written, accord-
ing to the form of the statute in such case made and provided; which said
jurors so appointed anew, to wit, Roger Bacon, Thomas Small, Charles Pye,
Edward HaAvkins, Samuel Roberts, and Daniel Parker, being likewise called,
come; and together witli the oth^er jurors aforesaid before impanelled and
sworn, being elected, tried, and sworn, to speak the truth of the matter within
contained, [Verdict for the plaintiff] upon their oath say, that the aforesaid
George Saunders is guilty of the trespass and ejectment within-written, in
manner and form as the aforesaid Richard Smith within complains against
APPENDIX TO BOOK III. 823
him; and assess the damages of the said Richard Smith, on occasion of that
trespass and ejectment, besides his costs and charges which he hath been put
unto about his suit in that behalf, to twelve pence; and, for those costs and
charges, to forty shillings. WHEREUPON the said Richard Smith, by his
attorney aforesaid prayeth judgment against the said George Saunders, in
and upon the verdict aforesaid by the jurors aforesaid given in the form afore-
said; [Motion in arrest of judgment] and the said George Saunders, by his
attorney aforesaid saith, that the court here ought not to proceed to give judg-
ment upon the said verdict, and prayeth that judgment against him the said
George Saunders, in and upon the verdict aforesaid by the jurors aforesaid
given in the form aforesaid, may be stayed, by reason that the said verdict
is insufficient and erroneous, and that the same verdict may be quashed, and
that the issue aforesaid may be tried anew by other jurors to be afresh im-
panelled. [Continuance] And, because the court of the Lord the King here is
not yet advised of giving their judgment of and upon the premises, therefore
day thereof is given as well to the said Richard Smith as the said George
Saunders, before the Lord the King, until the morrow of the Ascension of our
Lord, wheresoever the said Lord [*xii] *the King shall then be in England, to
hear their judgment of and upon the premises, for that the court of the Lord
the King is not yet advised thereof. At which day before the Lord the King
at Westminster, came the parties aforesaid by their attornies aforesaid;
[Opinion of the court] upon which, the record and matters aforesaid having
been seen, and by the court of the Lord the King now here fully understood,
and all and singular the premises having been examined, and mature delibera-
tion being had thereupon, for that it seems to the court of the Lord the King
now here that the verdict aforesaid is in no wise insufficient or erroneous, and
that the same ought not to be quashed, and that no new trial ought to be had
of the issue aforesaid, [Judgment, for the plaintiff] THEREFORE IT is CON-
SIDERED, that the said Richard do recover against the said George his term yet
to come, of and in the said tenements, with the appurtenances, and the said
damages assessed by the said jury in form aforesaid, [Costs] and also twenty-
seven pounds six shillings and eight-pence for his costs and charges aforesaid,
by the court of the Lord the King here awarded to the said Richard, with his
assent, by way of increase; which said damages in the whole amount to
twenty-nine pounds, seven shillings and eight-pence. [Capiatur pro fine] "And
let the said George be taken, [until he maketh fine to the Lord the King]."f
[Writ of possession] AND HEREUPON the said Richard, by his attorney afore-
said, prayeth a writ of the Lord the King, to be directed to the sheriff of the
county aforesaid, to cause him to have possession of his term aforesaid yet to
come, of and in the tenements aforesaid, with the appurtenances; and it is
granted unto him, returnable before the Lord the King on the morrow of the
Holy Trinity, wheresoever he shall then be in England. [And return] At
which day before the Lord the King, at Westminster, cometh the said Richard,
by his attorney aforesaid; and the sheriff, that is to say, Sir Thomas Reeve,
Knight, now sendeth, that he by virtue of the writ aforesaid to him directed,
on the ninth day of June last past, did cause the said Richard to have his
possession of his term aforesaid yet to come, of and in the tenements afore-
said, with the appurtenances, as he was commanded.
t Now omitted.
824 APPENDIX TO BOOK III.
[*xiii] *No. III.
Proceedings on an Action of Debt in the Court of Common Pleas;
removed into the King's Bench by Writ of Error.
Sect. 1. Original.
[Praecipe] GEORGE the Second, by the grace of God, of Great Britain, France,
and Ireland King, Defender of the Faith, and so forth; to the sheriff of Ox-
fordshire, greeting. COMMAND Charles Long, late of Burford, gentleman, that
justly and without delay he render to William Burton two hundred pounds,
which he owes him and unjustly detains, as he saith. And unless he shall so
do, and if the said William shall make you secure of prosecuting his claim,
then summon by good summoners the aforesaid Charles, that he be before our
justices, at Westminster, on the octave of Saint Hilary, to show wherefore
he hath not done it. And have you there then the summoners, and this writ.
WITNESS ourself at Westminster, the twenty-fourth day of December, in the
twenty-eighth year of our reign.
Pledges of ( JOHN DOE, [Sheriff's return] Sum- ) ROGER MORRIS,
prosecution, { RICHARD ROE. moners of the w.th.n ] HENRY JOHNSON.
named Charles Long, ;
Sect. 2. Process.
[Attachment] GEORGE the Second, by the grace of God, of Great Britain,
France, and Ireland King, Defender of the Faith, and so forth ; to the sheriff
of Oxfordshire, greeting. [Pone] PUT by gage and safe pledges Charles Long,
late of Burford, gentleman, that he be before our justices at Westminster, on
the octave of the purification of the blessed Mary, to answer to William
Burton of a plea, that he render to him two hundred pounds which he owes
him and unjustly detains, as he saith; and to show wherefore he was not
before our justices at Westminster on the octave of Saint Hilary, as he was
summoned. And have there then the names of the pledges and this writ.
WITNESS, Sir John Willes, Knight, at Westminster, the twenty-third day of
January, in the twenty -eighth year of our reign.
[Sheriff's return] The within-named Charles Long ) EBWARD LEIGH.
is attached by Pledges, [ ROBERT TANNER.
[Distringas] [*xiv] *GEORGE the Second, by the grace of God, of Great Britain,
France, and Ireland King, Defender of the Faith, and so forth; to the sheriff
of Oxfordshire, greeting. WE command you, that you distrein Charles Long,
late of Burford, gentleman, by all his lands and chattels within your bailiwick,
so that neither he nor any one through him may lay hands on the same, until
you shall receive from us another command thereupon: and that you answer
to us of the issues of the same; and that you have his body before our justices
at Westminster from the day of Easter in fifteen days, to answer to William
Burton of a plea, that he render to him two hundred pounds which he owes
him and unjustly detains, as he saith, and to hear his judgment of his many
defaults. WITNESS, Sir John Wiles, Knight, at Westminster, the twelfth day
of February, in the twenty-eighth year of our reign.
[Sheriff's return. Nihil] The within named Charles Long hath nothing in
my bailiwick, whereby he may be distreined.
[Capias ad respondendum] GEOBCJE the Second, by the grace of God. of Great
Britain, France, and Ireland King, Defender of the Faith, and so forth; to the
Sheriff of Oxfordshire greeting. WE command you, that you take Charles
APPENDIX TO BOOK III. 825
Long, late of Burford, gentleman, if he may be found in your bailiwick, and
him safely keep, so that you may have his body before our justices at West-
minster from the day of Easter in five weeks, to answer to William Burton,
gentleman, of a plea, that he render to him two hundred pounds, which he
owes him and unjustly detains, as he saith; and whereupon you have returned
to our justices at Westminster, that the said Charles hath nothing in your
bailiwick, whereby he may be distreined. And have you there then this writ.
WITNESS, Sir John Willes, Knight, at Westminster, the sixteenth day of April,
in the twenty-eighth year of our reign.
[Sheriff's return. Non est inventus] The within named Charles Long is not
found in my bailiwick.
[Testatum capias] GEORGE the Second, by the grace of God, of Great Britain,
France, and Ireland King, Defender of the Faith, and so forth; to the Sheriff
of Berkshire, greeting. WE command you, that you take Charles Long, late
of Burford, gentleman, if he may be found in your bailiwick, and him safely
keep, so that you may have his body before our justices at Westminster, on
the morrow of the Holy Trinity, to answer to William Burton, Gentleman, of
a plea, that he render to him two hundred pounds, which he owes him and
unjustly detains, as he saith; and whereupon our Sheriff of Oxfordshire hath
made a return to our justices at Westminster, at a certain day now past, that
the [*xv] *aforesaid Charles is not found in his bailiwick; and thereupon it is
testified in our said Court, that the aforesaid Charles lurks, wanders, and runs
about in your county. And have you there then this writ. WITNESS, Sir
John Willes, Knight, at \Vestminster, the seventh day of May, in the twenty-
eighth year of our reign.
[Sheriff's return. Cepi corpus] By virtue of this writ to me directed, I have
taken the body of the within named Charles Long; which I have ready at the
day and place within contained, according as by this writ it is commanded me.
Or, upon the Return of Non est inventus upon the first Capias, the Plaintiff
may sue out an Alias and a Pluries, and thence proceed to Outlawry:
thus :
[Alias capias] GEOKGE the Second, by the grace of God. of Great Britain.
France, and Ireland King, Defender of the Faith, and so forth; to the Sheriff
of Oxfordshire greeting. WE 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 safely keep, so that you may have his body before
our justices at Westminster, on the morrow of the Holy Trinity, to answer to
William Burton, Gentleman, of a plea, that he render to him two hundred
pounds, which he owes him and unjustly detains, as he saith. And have you
there then this writ. WITNESS, Sir John Willes, Knight, at Westminster, the
seventh day of May, in the twenty-eighth year of our reign.
[Sheriff's return. Non est inventus] The within named Charles Long is not
found in my bailiwick.
[Pluries capias] GEORGE the Second, by the grace of God, of Great Britain,
France, and Ireland King, Defender of the Faith, and so forth; to the Sheriff
of Oxfordshire greeting. WE command you, as we have more than once com-
manded you, that you take Charles Long, late of Burford, Gentleman, if he
may be found in your bailiwick, and him safely keep, so that you may have
his body before our justices at Westminster, from the day of the Holy Trinity
in three weeks, to answer to William Burton. Gentleman, of a plea, that he
render to him two hundred pounds, which he owes him and unjustly detains,
as he saith. And have you there then this writ. WITNESS, Sir John Willes,
Knight, at Westminster, the thirtieth day of May, in the twenty-eighth year
of our reign. ,
826 APPENDIX TO BOOK III.
[Sheriff's return. Non est inventus] The within named Charles Long is not
found in my bailiwick.
[Exigi facias] [*xvi] *GEOBGE the Second, by the grace of God, of Great
Britain, France, and Ireland King, Defender of the Faith, and so forth; to the
Sheriff of Oxfordshire greeting. WE command you, that you cause Charles
Long, late of Burford, Gentleman, to be required from county court to county
court, until, according to the law and custom of our realm of England, he be
outlawed, if he doth not appear: and if he doth appear, then take him and
cause him to be safely kept, so that you may have his body before our justices
at Westminster, on the morrow of All Souls, to answer to William Burton,
Gentleman, of a plea, that he render to him two hundred pounds, which he
owes him and unjustly detains, as he saith; and whereupon you have returned
to our justices at Westminster, from the day of the Holy Trinity in three
weeks, that he is not found in your bailiwick. And have you there then this
writ. WITNESS, Sir John Willes, Knight, at Westminster, the eighteenth day
of June, in the twenty-eighth year of our reign.
[Sheriff's return] By virtue of this writ to me directed, at my county court
held at Oxford, in the county of Oxford, on Thursday the twenty-first day of
June, in the twenty-ninth year of the reign of the Lord the King within
written, [Primo exactus] the within named Charles Long was required the
first time, and did not appear: and at my county court held at Oxford afore-
said, on Thursday the twenty-fourth day of July in the year aforesaid,
[Secundo exactus] the said Charles Long was required the second time, and
did not appear: and at my county court held at Oxford aforesaid, on Thursday
the twenty-first day of August in the year aforesaid, [Tertio exactus] the said
Charles Long was required the third time, and did not appear: and at my
county court held at Oxford aforesaid, on Thursday, the eighteenth day of
September in the year aforesaid, [Quarto exactus] the said Charles Long was
required the fourth time, and did not appear: and at my county court held at
Oxford aforesaid, on Thursday the sixteenth day of October in the year afore-
said, [Quinto exactus] the said Charles Long was required the fifth time, and
did not appear: [Ideo utlagatus] therefore the said Charles Long, by the judg-
ment of the coroners of the said Lord the King, of the county aforesaid, accord-
ing to the law and custom of the kingdom of England, is outlawed.
[Writ of proclamation] GEORGE the Second, by the grace of God, of Great
Britain, France, and Ireland King, Defender of the Faith, and so forth; to the
Sheriff of Oxfordshire, greeting. WHEREAS by our writ we have lately com-
manded you that you should cause Charles Long, late of Burford, Gentleman,
to be required from county court to county court, until, according to [*xvii]
*the law and custom of our realm of England he should be outlawed, if he did
not appear: and if he did appear, then that you should take him and cause
him to be safely kept, so that you might have his body before our justices at
Westminster, on the morrow of All Souls, to answer to William Burton,
Gentleman, of a plea, that he render to him two hundred pounds, which he
owes him and unjustly detains, as he saith: THEREFORE we command you, by
virtue of the statute in the thirty-first year of the Lady Elizabeth, late Queen
of England, made and provided, that you cause the said Charles Long to be
proclaimed upon three several days according to the form of that statute;
(whereof one proclamation shall be made at or near the most usual door of
the church of the parish wherein he inhabits) that he render himself unto you;
so that you may have his body before our justices at Westminster at the day
aforesaid, to answer the said William Burton of the plea aforesaid. And have
you there then this writ. WITNESS, Sir John Willes, Knight, at Westminster,
the eighteenth day of June, in the twenty-eighth year of our reign.
[Sheriff's return. Proclamari feci] By virtue of this writ to me directed, at
my county court held at Oxford, in the county of Oxford, on Thursday the
APPENDIX TO BOOK III. 82T
twenty-sixth day of June, in the twenty-ninth year of the reign of the Lord
the King within written, I caused to be proclaimed the first time; and at the
general quarter sessions of the peace, held at Oxford aforesaid, on Tuesday
the fifteenth day of July in the year aforesaid, I caused to be proclaimed the
second time; and at the most usual door of the church of Burford within
written, on Sunday the third day of August in the year aforesaid, immediately
after divine service, one month at the least before the within named Charles
Long was required the fifth time, I caused to be proclaimed the third time,
that the said Charles Long should render himself unto me, as within it is
commanded me.
[Capias utlagatum] GEORGE the Second, by the grace of God, of Great
Britain, France, and Ireland King, Defender of the Faith, and so forth; to the
Sheriff of Berkshire greeting. WE command you, that you omit not by reason
of any liberty of your county, but that you take Charles Long, late of Burford
in the county of Oxford, Gentleman, (being outlawed in the said county of
Oxford, on Thursday the sixteenth day of October last past, at the suit of
William Burton, Gentleman, of a plea of debt, as the Sheriff of Oxfordshire
aforesaid returned to our justices at Westminster on the morrow of All Souls
then next ensuing) if the said Charles Long may be found in your bailiwick;
and him safely keep, so that you may [*xviii] *have his body before our justices
at Westminster from the day of St. Martin in fifteen days to do and receive
what our Court shall consider concerning him in this behalf. WITNESS, Sir
John Willes, Knight, at Westminster, the sixth day of November, in the
twenty-ninth year of our reign.
[Sheriff's return. Cepi corpus] By virtue of this writ to me directed, I have
taken the body of the within named Charles Long; which I have ready at the
<lay and place within contained, according as by this writ it is commanded me.
Sect. 3. ^Bill of MIDDLESEX, and LATITAT thereupon in the Court of KING'S
BENCH.
to wit. ) [Bill of Middlesex for trespass] THE SHEBIFF is commanded
. Middlesex, 'I that he take Charles Long, late of Burford, in the county of
Oxford, if he may be found in his bailiwick, and him safely keep, so that he
may have his body before the Lord the King at Westminster, on Wednesday
next after fifteen days of Easter, to answer William Burton, Gentleman, of a
plea of trespass; [Ac etiam in debt] [AND ALSO to a bill of the said William
against the aforesaid Charles, for two hundred- pounds of debt, according to
the custom of the court of the said Lord the King, before the King himself
to be exhibited;] and that he have there then this precept.
[Sheriff's return. Non est inventus] The within named Charles Long is not
found in my bailiwick.
[Latitat] GEORGE the Second, by the grace of God, of Great Britain, France,
and Ireland King, Defender of the Faith, and so forth; to the Sheriff of Berk-
shire, greeting. WHEREAS we lately commanded our Sheriff of Middlesex that
he should take Charles Long, late of Burford, in the county of Oxford, if he
might be found in his bailiwick, and him safely keep, so that he might be
before us at Westminster, at a certain day now past, to answer unto William
Burton, Gentleman, of a plea of trespass; [Ac etiam] [AND ALSO to a bill of
t Note, that sect. 3. and 4. are the pally differ from that of the Court of
usual method of process, to compel an Common Pleas; the subsequent stages
appearance in the Courts of King's of proceeding being nearly alike in
Bench and Exchequer; in which the. them all.
practice of those courts does princi-
828 APPENDIX TO BOOK III.
the said William against the aforesaid Charles, for two hundred pounds of
debt, according to the custom of our court, before us to be exhibited;] and our
said Sheriff of Middlesex at that day returned to us that the aforesaid Charley
was not found in his bailiwick; whereupon on the behalf of the aforesaid
William in our court before us it is sufficiently attested that the aforesaid
Charles lurks and runs about in your county : THEREFORE we command you,
that you take him, if he may be found in [*xix] *your bailiwick, and him safely
keep, so that you may have his body before us at Westminster, on Tuesday
next after five weeks of Easter, to answer the aforesaid William of the plea
[and bill] aforesaid; and have you there then this writ. WITNESS, Sir Dudley
Ryder, Knight, at Westminster, the eighteenth day of April, in the twenty-
eighth year of our reign.
[Sheriff's return. Cepi corpus] By virtue of this writ to me directed, I have
taken the body of the within named Charles Long; which I have ready at the
day and place within contained, according as by this writ it is commanded me.
Sect. 4. Writ of Quo MINUS in the EXCHEQUER.
GEORGE the Second, by the grace of God, of Great Britain, France, and Ire-
land King, Defender of the Faith, and so forth; to the Sheriff of Berkshire,
greeting. WE command you, that you omit not by reason of any liberty of
your county, but that you enter the same, and take Charles Long, late of
Burford, in the county of Oxford, Gentleman, wheresoever he shall be found in
your bailiwick, and him safely keep, so that you may have his body before the
Barons of our Exchequer at Westminster, on the morrow of the Holy Trinity,
to answer William Burton, our debtor of a plea, that he render to him two
hundred pounds which he owes him and unjustly detains, whereby he is the
less able to satisfy us the debts which he owes us at our said Exchequer, as he
saith he can reasonably show that the same he ought to render: and have
you there this writ. WITNESS, Sir Thomas Parker, Knight, at Westminster,
the sixth day of May, in the twenty-eighth year of our reign.
[Sheriff's return. Cepi corpus] By virtue of this writ to me directed, I have
taken the body of the within named Charles Long; which I have ready before
the barons within written, according as within it is commanded me.
Sect. 5. Special Bail, on tJie Arrest of the Defendant, pursuant to the
TESTATUM CAPIAS, in page xiv.
[Bail bond to the sheriff] KNOW ALL MEN by these present?, that we Charles
Long, of Burford, in the county of Oxford, Gentleman, Peter Hamond, of Bix,
in the said county, Yeoman, and Edward Thomlinson, of Woodstock, in the
said county, innholder, are held and firmly bound to Christopher Jones, Esquire,
Sheriff of the County of Berks, in four hundred pounds of lawful money of
Great Britain, to be paid to the said sheriff, or his certain attorney, executors,
administrators, or assigns; for which payment well and truly to be made, we
bind ourselves and each of us by himself [*xx] *for the whole and in gross, our
and every of our heirs, executors, and administrators, firmly by these presents,
sealed with our seals. Dated the fifteenth day of May, in the twenty-eighth
year of the reign of our sovereign Lord George the Second, by the grace of
God, King of Great Britain, France, and Ireland, Defender of the Faith, and
BO forth, and in the year of our Lord one thousand seven hundred and fifty-
five.
[Condition] THE CONDITION of this obligation is such, that if the above
bounden Charles Long do appear before the justices of our sovereign Lord the
King, at Westminster, on the morrow of the Holy Trinity, to answer William
APPENDIX TO BOOK III. 820
Burton, Gentleman, of a plea of debt of two hundred pounds, then this obliga-
tion shall be void and of none effect, or else shall be and remain in full force
and virtue.
Sealed and delivered, being first CHARLES LONG. (L. S.)
duly stamped, in the presence PETEB HAMOND. (L. S.)
of EDWARD THOMLINSON. (L. S.)
HENRY SHAW.
TIMOTHY GRIFFITH
[Recognizance of bail before the commission] You Charles Long do acknowl-
edge to owe unto the plaintiff four hundred pounds, and you John Rose and
Peter Hammond do severally acknowledge to owe unto the same person the
sum of two hundred pounds a piece, to be levied upon your several goods and
chattels, lands and tenements, UPON CONDITION that, if the defendant be con-
demned in the action, he shall pay the condemnation, or render himself a
prisoner in the Fleet for the same; and, if he fail so to do, you John Rose and
Peter Hammond do undertake to do it for him.
Trinity Term, 28 Geo. II.
[Bail piece.]
Berks, ( ON a Testatum Capias from Oxfordshire against Charles Long, late
to wit. I of Burford in the county of Oxford, Gentleman, returnable on the
morrow of the Holy Trinity, at the suit of William Burton, of a plea of debt
of two hundred pounds:
THE BAIL are, John Rose, of Witney, in the county of Oxford, Esquire,
Peter Hamond of Bix, in the said county, yeoman.
RICHARD PRICE, attorney )
for the defendant, \
The party himself in 400J.
Each of the bail in 200?.
Taken and acknowledged the twenty-eighth day
of May, in the year of our Lord one thou-
sand seven hundred and fifty-five, de bene
esse, before me,
ROBERT GROVE,
one of the commissioners.
[*xxi] *Sect. 6. The Record, as removed by Writ of ERROR.
[Writ of error] THE LORD the King hath given in charge to his trusty and
beloved Sir John Willes, Knight, his writ closed in these words: GEORGE
the Second, by the grace of God, of Great Britain, France, and Ireland King,
Defender of the Faith, and so forth ; to our trusty and beloved Sir John Willes,
Knight, greeting. BECAUSE in the record and process, and also in the giving
of judgment of the plaint, which was in our Court before you and your fellows,
our justices of the bench, by our writ, between William Burton, Gentleman,
and Charles Long, late of Burford in the county of Oxford, Gentlemen, of a
certain debt of two hundred pounds, which the said William demands of the
said Charles, manifest error hath intervened, to the great damage of him the
said William, as we from his complaint are informed; we being willing that
the error, if any there be, should be corrected in due manner, and that full
and speedy justice should be done to the parties aforesaid in this behalf, do
command you, that if judgment thereof be given, then under your seal you
do distinctly and openly send the record and process of the plaint aforesaid,
with all things concerning them, and this writ; so that we may have them
830 APPENDIX TO BOOK III.
from the day of Easter in fifteen days, wheresoever we shall then be in Eng-
land; that the record and process aforesaid being inspected, we may cause to
be done thereupon for correcting that error, what of right and according to
the law and custom of our realm of England ought to be done. WITNESS
ourselves at Westminster, the twelfth day of February, in the twenty-ninth
year of our reign.
[Chief justice's return] THE record and process whereof in the said writ
mention above is made, follow in these words to wit:
[The record] PLEAS at Westminster before Sir John Willes, Knight, and his
brethern, justices of the bench of the Lord the King at Westminster, of
the term of the Holy Trinity, in the twenty-eighth year of the reign of
the Lord GEORGE the Second, by grace of God, of Great Britain, France,
and Ireland King, Defender of the Faith, &c.
[Writ] Oxon, ( CHARLES LONG, late of Burford in the county aforesaid,
to wit. \ Gentleman, was summoned to answer William Burton, of
Yarnton in the said county, Gentleman, of a plea that he render unto him
two hundred pounds, which he owes him and unjustly detains, [as he saith.]
[Declaration, or count, on a bond.] AND WHEREUPON the said William, by
Thomas Gough, his attorney, complains, that whereas on the first day of De-
cember, in the year of our Lord [*xxii] *one thousand seven hundred and fifty-
four, at Banbury in this county, the said Charles by his writing obligatory
did acknowledge himself to be bound to the said William in the said sum of
two. hundred pounds of lawful money of Great Britain, to be paid to the said
William, whenever after the said Charles should be thereto required; never-
theless the said Charles (although often required) hath not paid to the said
William the said sum of two hundred pounds, nor any part thereof, but
hitherto altogether hath refused, and doth still refuse to render the same;
wherefore he saith that he is injured, and hath damage to the value of ten
pounds: and thereupon he brings suit, [and good proof.] [Profert in curia.]
AND he brings here into Court the writing obligatory aforesaid; which testifies
the debt aforesaid in form aforesaid; the date whereof 'is the day and year
before mentioned. [Defence] AND the aforesaid Charles, by Richard Price
his attorney, comes and defends the force and injury when [and where it shall
behove him,] and craves oyer of the said writing obligatory, and it is read
unto him [in the form aforesaid:] [Oyer prayed of the bond and condition,
viz., to perform an award] he likewise craves oyer of the condition of the said
writing, and it is read unto him in these words: "The condition of this obli-
gation is such, that if the above bounden Charles Long, his heirs, executors,
and administrators, and every of them, shall and do from time to time, and
at all times hereafter, well and truly stand to, obey, observe, fulfil, and keep,
the award, arbitrament, order, rule, judgment, final end, and determination,
of David Stiles, of Woodstock, in the said county, clerk, and Henry Bacon, of
Woodstock aforesaid, Gentleman, (arbitrators indifferently nominated and
chosen by and between the said Charles Long and the above-named William
Burton, to arbitrate, award, order, rule, judge, and determine, of all and all
manner of actions, cause or causes of action, suits, plaints, debts, duties, reck-
onings, accounts, controversies, trespasses, and demands whatsoever had,
moved, or depending, or which might have been had, moved, or depending, by
and between the parties, for any matter, cause, or thing, from the beginning
of the world until the day of the date hereof,) which the said arbitrators shall
make and publish, of or in the premises, in writing under their hands and
seals, or otherwise by word of mouth, in the presence of two credible witnesses,
on or before the first day of January next ensuing the date hereof; then this
obligation to be void and of none effect, or else to be and remain in full force
and virtue." [Imparlance] WHICH being read and heard, the said Charles
prays leave to imparl therein here until the octave of the Holy Trinity; and
it is granted unto him. [Continuance] The same day is given to the said
APPENDIX TO BOOK III. 831
William Burton, here, &c. At which day, to wit, on the octave of the Holy
Trinity, here come as well the said William Burton as the said Charles Long,
by their attorneys aforesaid: and hereupon the said William [*xxiii] *prays
that the said Charles may answer to his writ and count aforesaid. [Plea; No
such award] AND the aforesaid Charles defends the force and injury, when,
&c. and saith, that the said William ought not to have or maintain his said
action against him; because he saith, that the said David Stiles and Henry
Bacon, the arbitrators beforenamed in the said condition, did not make any
such award, arbitrament, order, rule, judgment, final end, or determination, of
or in the premises above specified in the said condition, on or before the first
day of January, in the condition aforesaid above mentioned, according to the
form and effect of the said condition: and this he is ready to verify. Where-
fore he prays judgment, whether the said William ought to have or maintain
his said action thereof against him [and that he may go thereof without a
day.] [Replication, setting forth an award] AND the aforesaid William saith,
that for any thing above alleged by the said Charles in pleadings, he ought
not to be precluded from having his said action thereof against him; because
he saith, that after the making of the said writing obligatory, and before the
said first day of January, to wit, on the twenty-sixth day of December, in the
year aforesaid, at Banbury aforesaid, in the presence of two credible witnesses,
namely, John Dew, of Chalbury, in the county aforesaid, and Richard Morris,
of Wytham, in the county of Berks, the said arbitrators undertook the charge
of the award, arbitrament, order, rule, judgment, final end, and determination
aforesaid, of and in the premises specified in the condition aforesaid ; and then
and there made and published their award by word of mouth in manner and
form following, that is to say, the said arbitrators did award, order, and ad-
judge, that he the said Charles Long should forthwith pay to the said William
Burton the sum of seventy-five pounds, and that thereupon all differences
between them at the time of the making the said writing obligatory should
finally cease and determine. And the said William further saith, that although
he afterwards, to wit, on the sixth day of January, in the year of our Lord
one thousand seven hundred and fifty-five, at Banbury aforesaid, requested the
said Charles to pay to him the said William the said seventy-five pounds, yet
[Protestando] (by protestation that the said Charles hath not stood to,
obeyed, observed, fulfilled, or kept any part of the said award, which by him
the said Charles ought to have been stood to, obeyed, observed, fulfilled, and
kept,) for further plea therein he saith. that the said Charles the said seventy-
five pounds to the said William hath not hitherto paid; and this he is ready to
verify. Wherefore he prays judgment, and his debt aforesaid, together with
his damages occasioned by the detention of the said debt, to be adjudged unto
him, &c. [Demurrer] AND the aforesaid Charles saith, that the plea aforesaid,
by him the said William in manner and form aforesaid above in his replication
pleaded, and the matter in the same contained, are in no wise sufficient in
[*xxiv] *law for the said William to have or maintain his action aforesaid there-
upon against him the said Charles ; to which the said Charles hath no neces-
sity, neither is he obliged by the law of the land, in any manner to answer;
and this he is ready to verify. Wherefore, for want of a sufficient replication
in this behalf, the said Charles, as aforesaid, prays judgment, and that the
aforesaid William may be precluded from having his action aforesaid there-
upon against him, &c. [Causes of demurrer] AND the said Charles, according-
to the form of the statute in that case made and provided, shows to the court
here the causes of demurrer following: to wit, that it doth not appear, by the
replication aforesaid, that the said arbitrators made the same award in the
presence of two credible witnesses on or before the said first day of January,
as they ought to have done, according to the form and effect of the condition
aforesaid; and that the replication aforesaid is uncertain, insufficient, and
wants form. [Joinder in demurrer.] AND the aforesaid William saith, that
the plea aforesaid by him the said William in manner and form aforesaid
above in his replication pleaded, and the matter in the same contained, are
832 APPENDIX TO BOOK III.
good and sufficient in law for the said William to have and maintain the saiil
action of him the said William thereupon against the said Charles; which said
plea, and the matter therein contained, the said William is ready to verify
and prove as the court shall award: and because the aforesaid Charles hath
not answered to that plea, nor hath he hitherto in any manner denied the
same, the said William as before prays judgment, and his debt aforesaid,
together with his damages occasioned by the detention of that debt, to be
adjudged unto him, &c. [Continuances] AND BECAUSE the justices here will
advise themselves of and upon the premises before they give judgment there-
upon, a day is thereupon given to the parties aforesaid here, until the Morrow
of All Souls, to hear their judgment thereupon, for that the said justices here
are not yet advised thereof. At which day here come as well the said Charles
as the said William, by their said attorneys; and because the said justices
here will farther advise themselves of and upon the premises before they give
judgment thereupon, a day is farther given to the parties aforesaid here until
the octave of Saint Hilary, to hear their judgment thereupon, for that the said
justices here are not yet advised thereof. At which day here come as well the
said William Burton as the said Charles Long, by their said attornies. [Opinion
of the court] WHEREFORE, the record and matters aforesaid having been seen,
and by the justices here fully understood, and all and singular the premises
being examined, and mature deliberation being had thereupon; for that it
seems to the said justices here, [Replication insufficient] that the said plea of
the said William Burton before in his replication pleaded, and the matter
therein contained, are not sufficient in law, to have and maintain the action of
the aforesaid William against the aforesaid Charles; [Judgment for the de-
fendant. Querens nihil capiat per breve] THEREFORE IT is CONSIDERED, that
the aforesaid William [*xxv] *take nothing by his writ aforesaid, [Amercement.
Costs] but that he and his pledges of prosecuting, to wit, John Doe and
Richard Roe, be in mercy for his false complaint; and that the aforesaid
Charles go thereof without a day, &c. AND IT is FARTHER CONSIDERED, that
the aforesaid Charles do recover against the aforesaid William eleven pounds
and seven shillings, for his costs and charges by him about his defence in
this behalf sustained, adjudged by the court here to the said Charles with hid
consent, according to the form of the statute in that case made and provided:
[Execution] and that the aforesaid Charles may have execution thereof, &c.
[General error assigned] AFTERWARDS, to wit, on Wednesday next after
fifteen days of Easter in 'this same term before the Lord the King, at West-
minster, comes the aforesaid William Burton, by Peter Manwaring, his at-
torney, and saith, that in the record and process aforesaid, and also in the
giving of the judgment in the plaint aforesaid, it is manifestly erred in this;
to wit, that the judgment aforesaid was given in form aforesaid for the said
Charles Long against the aforesaid William Burton, where by the law of the
land judgment should have been given for the said William Burton against the
said Charles Long; and this he is ready to verify. [Writ of scire facias, to hear
errors] AND the said William prays the writ of the said Lord the King, to
warn the said Charles Long to be before the said Lord the King, to hear the
record and process aforesaid; and it is granted unto him; by which the sheriff
aforesaid is commanded that by good [and lawful men of his bailiwick] he
cause the aforesaid Charles Long to know, that he be before the Lord the King
from the day of Easter in five weeks, wheresoever [he shall then be in Eng-
land.] to hear the record and process aforesaid, if [it shall have happened that
in the same any error shall have intervened;] and farther [to do and receive
what the court 'of the Lord the King shall consider in this behalf.] The same
day is given to the aforesaid William Burton. AT WHICH DAY before the Lord
the King at Westminster, comes the aforesaid William Burton, by his attorney
aforesaid; [Sheriff's return; Scire fed] and the sheriff returns, that by virtue
of the writ aforesaid to him directed, he had caused the said Charles Long to
know, that he be before the Lord the King at the time aforesaid in the said
APPENDIX TO BOOK III. 833
writ contained, by John Den and Richard Fen, good, &c., as by the same writ
was commanded him; which said Charles Long, according to the warning given
him in this behalf, here cometh by Thomas Webb, his attorney. [Error as
signed afresh] WHEREUPON the said William saith, that in the record and
process aforesaid, and also in the giving of the judgment aforesaid, it is mani-
festly erred, alleging the error aforesaid by him in the form aforesaid alleged,
and prays, that the judgment aforesaid for the error aforesaid, and others, in
the record and process aforesaid being, may be reversed, annulled, and entirely
for nothing esteemed, and that the said Charles ['xxvi] *may rejoin to the
errors aforesaid, and that the court of the said Lord the King here may pro-
ceed to the examination as well of the record and process aforesaid, as of the
matter aforesaid above for error assigned. [Rejoinder; In nullo est erratum]
AND the said Charles saith, that neither in the record and process aforesaid,
nor in the giving of the judgment aforesaid, in any thing is there erred; and
he prays in like manner that the court of the said Lord the King here may
proceed to the examination as well of the record and process aforesaid, as of
the matters aforesaid above for error assigned. [Continuance] AND BECAUSE
the court of the Lord the King here is not yet advised what judgment to give
of and upon the premises, a day is thereof given to the parties aforesaid until
the morrow of the Holy Trinity, before the Lord the King, wheresoever he
shall then be in England, to hear their judgment of and upon the premises,
for that the court of the Lord the King here is not yet advised thereof. At
which day before the Lord the King, at Westminster, come the parties -afore-
said by their attornies aforesaid: [Opinion of the court] WHEREUPOX, as well
the record and process aforesaid, and the judgment thereupon given, as the
matters aforesaid by the said William above for error assigned, being seen,
and by the court of the Lord the King here being fully understood, and mature
deliberation being thereupon had, for that it appears to the court of the Lord
the King here, that in the record and process aforesaid, and also in the giving
of the judgment aforesaid, it is manifestly erred. [Judgment of the Common
Pleas reversed. Judgment for the Plaintiff. Costs. Defendant amerced]
THEREFORE IT is CONSIDERED, that the judgment aforesaid, for the error afore-
said, and others, in the record and process aforesaid, be reversed, annulled, and
entirely for nothing esteemed; and that the aforesaid William recover against
the aforesaid Charles his debt aforesaid, and also fifty pounds for his damages
which he hath sustained, as well on occasion of the detention of the said debt,
as for his costs and charges unto which he hath been put about his suit in this
behalf, to the said William with his consent by the court of the Lord the King
here adjudged. And the said Charles in mercy.
Sect. 7. Process of Execution.
[Writ of capias ad satisfaciendum] GEORGE the Second, by the grace of
God, of Great Britain, France, and Ireland King, Defender of the Faith, and
so forth, to the Sheriff of Oxfordshire greeting. WE command you, that you
take Charles Long, late of Burford, gentleman, if he may be found in your
bailiwick, and him safely keep, so that you may have his body before us in
three weeks from the day of the Holy Trinity, wheresoever we shall then be
in England, to satisfy William Burton, for two hundred pounds debt, which
the said William Burton hath lately recovered against him in our court before
us, and also fifty pounds, which were [*xxvii] "adjudged in our said court before
us to the said William Burton, for his damages which he hath sustained, as well
by occasion of the detention of the said debt, as for his costs and charges to
which he hath been put about his suit in this behalf, whereof the said Charles
Long is convicted, as it appears to us of record; and have you there then this
writ. WITNESS, Sir Thomas Denison,t Knight, at Westminster, the nineteenth
day of June, in the twenty-ninth year of our reign.
j- The senior puisne justice ; there being no chief justice that term.
834: APPENDIX TO BOOK III.
[Sheriff's return; Cepi Corpus] By virtue of this writ to me directed, I have
taken the body of the within named Charles Long; which I have ready before
the Lord the King at Westminster, at the day within written, as within it is
commanded me.
[Writ of Fieri facias] GEORGE the Second, by the grace of God, of Great
Britain, France, and Ireland King, Defender of the Faith, and so forth, to the
fiheriff of Oxfordshire greeting. WE command you that of the goods and
chattels within your bailiwick of Charles Long, late of Burford, gentleman,
you cause to be made two hundred pounds debt, which William Burton lately
in our court before us at Westminster hath recovered against him, and also
fifty pounds, which were adjudged in our court before us to the said William,
for his damages which he hath sustained, as well by occasion of the detention
of his said debt, as for his costs and charges to which he hath been put about
his suit in this behalf, whereof the said Charles Long is convicted, as it appears
to us of record; and have that money before us in three weeks from the day
of the Holy Trinity, wheresoever we shall then be in England, to render to
the said William of his debt and damages aforesaid; and have there then this
writ. WITNESS, Sir Thomas Denison, Knight, at Westminster, the nineteenth
day of June, in the twenty-ninth year of our reign.
[Sheriff's return; Fieri feci] By virtue of this writ to me directed, I have
caused to be made of the goods and chattels of the within written Charles
Long, two hundred and fifty pounds; which I have ready before the Lord the
King at Westminster, at the day within written, as /it is within commanded
me.
APPENDIX TO BOOK IV.
SECT. 1. RECOBD OF AN INDICTMENT AND CONVICTION OF MURDEB, AT TUB
ASSIZES.
Warwickshire, > [Session of oyer and terminer] BE IT REMEMBERED, that at
to wit, > the general session of the lord the king of oyer and terminer
holden at Warwick in and for the said county of Warwick, on Friday the
twelfth day of March in the second year of the reign of the lord George the
third, now king of Great Britain, before sir Michael Foster, knight, one of the
justices of the said lord the king assigned to hold pleas before the king himself,
sir Edward Clive, knight, one of the justices of the said lord the king, of his
<-ourt of Common Bench, and others their fellows, [Commission of oyer and
terminer, and of the peace] justices of the said lord the king, assigned by
letters patent of the said lord the king, under his great seal of Great Britain,
made to them the aforesaid justices and others, and any two or more of them,
(whereof one of them the said sir Michael Foster and sir Edward Clive, the
said lord the king would have to be one) to inquire (by the oath of good and
lawful men of the county aforesaid, by whom the truth of the matter might
be the 'better known, and by other ways, methods, and means, whereby they
could or might the better know, as well within liberties as without (more
fully the truth of all treasons, misprisions of treasons, insurrections, rebellions,
<-ounterfeitings, clippings, washings, false coinings, and other falsities of the
monies of Great Britain, and of other kingdoms or dominions whatsoever;
and of all murders, felonies, manslaughters, killings, burglaries, rapes of
women, unlawful meetings and conventicles, unlawful uttering of words, un-
lawful assemblies, misprisions, confederacies, false allegations, trespasses, riots,
routs, retentions, escapes, contempts, falsities, negligences, concealments, main-
tenancees, oppressions, champarties, deceits, and all other misdeeds, offences,
and injuries whatsoever, and also the accessaries of the same, within the county
aforesaid, as well within liberties as without, by whomsoever and howsoever
done, had, perpetrated, and committed, and by whom, to whom, when, IIOAV,
and in what manner; and of all other articles and circumstances in the said
letters patent of the said lord the king specified; the premises and every or
any of them howsoever concerning; and for this time to hear and determine
the said treasons and other the premises, according to the law and custom of
the realm of England; and also keepers of the peace, and justices of the said
lord the king, assigned to hear and determine divers felonies, trespasses, and
other misdemeanors committed within the county aforesaid, by the oath of
[Grand jury] sir James Thomson, baronet, Charles Roper, Henry Dawes, Peter
Wilson, Samuel Rogers, John Dawson, James Phillips, John Mayo, Richard
Savage, William Bell, James Morris, Laurence Hall, and Charles Carter,
esquires, good and lawful men of the county aforesaid, then and there im-
panelled, sworn, and charged to inquire for the said lord the king and for the
body of the said county, it is presented; [Indictment] THAT Peter Hunt, late
of the parish of Lighthorne in the said county, gentleman, not having the fear
of God before his eyes, but being moved and seduced by the instigation of the
devil, on the fifth day of March in the said second year of the reign of the said
lord the king, at the parish of Lighthorne aforesaid, with force and arms, in
and upon one Samuel Collins, in the peace of God and of the said lord the king
then and there being, feloniously, wilfully, and of his malice aforethought, did
[835]
836 APPENDIX TO BOOK IV.
make an assault; and that the said Peter Hunt, with a certain drawn sword,
made of iron and steel, of the value of five shillings, which he the said Peter
Hunt in his right hand then and there had and held, him the said Samuel
Collins, in and upon the left side of the belly of him the said Samuel Collins
then and there feloniously, wilfully, and of his malice aforethought, did strike,
thrust, stab, and penetrate; giving unto the said Samuel Collins, then and
there, with the sword drawn as aforesaid, in and upon the left side of the
belly of him the said Samuel Collins, one mortal wound of the breadth of one
inch, and the depth of nine inches; of which said mortal wound he the said
Samuel Collins, at the parish of Lighthorne aforesaid in the said county of
Warwick, from the said fifth day of March in the year aforesaid until the
seventh day of the same month in the same year, did languish, and languishing
did live; on which said seventh day of March in the year aforesaid, the said
Samuel Collins, at the parish of Lighthorne aforesaid, in the county aforesaid,
of the said mortal wound did die: and so the jurors aforesaid, upon their oath
aforesaid, do say, that the said Peter Hunt him the said Samuel Collins, in
manner and form aforesaid, feloniously, wilfully, and of his malice afore-
thought, did kill and murder, against the peace of the said lord the now king,
his crown, and dignity. [Capias] WHEREUPON the sheriff of the county afore-
said is commanded, that he omit not for any liberty in his bailiwick, but that
he take the said Peter Hunt, if- he may be found in his bailiwick, and him safely
keep, to answer to the felony and murder whereof he stands indicted. [Session
of gaol delivery] WHICH said indictment the said justices of the lord the king
above named, afterwards, to wit, at the delivery of the goal of the said lord
the king, holden at Warwick in and for the county aforesaid, on Friday the
sixth day of August, in the said second year of the reign of the said lord the
king, before the right honourable William lord Mansfield, chief justice of the
said lord the king, assigned to hold pleas before the king himself, sir Sidney
Stafford Smythe, knight, one of the barons of the exchequer of the said lord
the king, and others their fellows, justices of the said lord the king, assigned
to deliver his said goal of the county aforesaid of the prisoners therein being,
by their proper hands do deliver here in court of Record in form of the law
to be determined. [Arraignment] AND AFTERWARDS, to wit, at the same de-
livery of the gaol of the said lord the king of his county aforesaid, on the said
Friday the sixth day of August, in the said second year of the reign of the
said lord the king, before the said justices of the lord the king last above
named and others their fellows aforesaid, here cometh the said Peter Hunt,
under the custody of William Browne, esquire, sheriff of the county aforesaid,
( in whose custody in the gaol of the county aforesaid, for the cause aforesaid,
he had been before committed,) being brought to the bar here in his proper
person by the said sheriff, to whom he is here also committed: [Plea: not
guilty] AND forthwith being demanded concerning the premises in the said
indictment above specified and charged upon him, how he will acquit himself
thereof, he saith, that he is not guilty thereof; and thereof for good and evil
he puts himself upon the country: [Issue] AND John Blencowe, esquire, clerk
of the assizes for the county aforesaid, who prosecutes for the said lord the
king in this behalf, doth the like: [Venire] THEREFORE let a jury thereupon
here immediately come before the said justices of the lord the king last above
mentioned, and others their fellows aforesaid, of free and lawful men of the
neighbourhood of the said parish of Lighthorne in the county of Warwick
aforesaid, by whom the truth of the matter may be the better known, and who
are not of kin to the said Peter Hunt, to recognise upon their oath, whether
the said Peter Hunt be guilty of the felony and murder in the indictment
aforesaid above specified, or not guilty: because as well the said John Blen-
cowe, who prosecutes for the said lord the king in this behalf, as the said Peter
Hunt, have put themselves upon the said jury. And the jurors of the said
jury by the said sheriff for this purpose impanelled and returned, to wit, David
Williams, John Smith, Thomas Home. Charles Nokes. Richard May, Walter
Duke, Matthew Lion, James White, William Bates, Oliver Green, Bartholomew
APPENDIX TO BOOK IV. 837
Nash, and Henry Long, being called, come; who being elected, tried, and sworn,
to speak the truth of and concerning the premises, upon their oath say,
[Verdict: guilty of murder] THAT the said Peter Hunt is guilty of the felony
and murder aforesaid, on him above charged in the form aforesaid, as by the
indictment aforesaid is above supposed against him; and that the said Peter
Hunt at the time of committing the said felony and murder, or at any time
since to this time, had not nor hath any goods or chattels, lands or tenements,
in the said county of Warwick, or elsewhere, to the knowledge of the said
jurors.l And upon this it is forthwith demanded of the said Peter Hunt,
if he hath or knovveth any thing to say, wherefore the said justices here
ought not upon the premises and verdict aforesaid to proceed to judgment and
execution against him: who nothing further saith, unless as he before had
said. [Judgment of death, etc.] WHEREUPON, all and singular the premises
being seen, and by the said justices here fully understood, IT is CONSIDERED
by the court here, that the said Peter Hunt be taken to the gaol of the said
lord the king of the said county of Warwick from whence he came, and from
thence to the place of execution on Monday now next ensuing, being the ninth
day of this instant August, and there be hanged by the neck until he be dead ;
and that afterwards his body be dissected and anatomized.
SECT. 2. CONVICTION OF MANSLAUGHTER.
[Verdict: not guilty of murder; guilty of manslaughter] - - upon their
oath say, that the said Peter Hunt is not guilty of the murder aforesaid, above
charged upon him; but that the said Peter Hunt is guilty of the falonious
slaying of the aforesaid Samuel Collins; and that he had not nor hath any
goods or chattels, lands or tenements, at the time of the felony and man-
slaughter aforesaid, or ever afterwards to this time, to the knowledge of the
said jurors.2 And immediately it is demanded of the said Peter Hunt,
if he hath or knoweth any thing to say, wherefore the said justices here ought
not upon the premises and verdict aforesaid to proceed to judgment and execu-
tion against him: [Clergy prayed] WHO saith that he is a clerk, and prayeth
the benefit of clergy to be allowed him in this behalf [Judgment to be burned
in the hand, and delivered] WHEREUPON, all and singular the premises being
seen, and by the said justices here fully understood, IT is CONSIDERED by the
court here, that the said Peter Hunt be burned in his left hand, and delivered.
And immediately he is burned in his left hand, and is delivered, according to
the form of the statute.3
SECT. 3. ENTRY OF A TRIAL LNSTANTER IN THE COURT OF KING'S BENCH, UPON
A COLLATERAL ISSUE; AND RULE OF COURT FOR EXECUTION THEREON.
Michaelmas Term, in the Sixth Year of the Reign of
King George the Third.
Kent; The King j [Habeas corpus. Record of attainder read; of felony and
against > robbery] THE PRISONER at the bar being brought into
Thomas Rogers. ) this court in custody of the sheriff of the county of
Sussex, by virtue of his majesty's writ of habeas corpus, IT is ORDERED that the
said writ and the return thereto be filed. AND it appearing by a certain record
cf attainder, which hath been removed into this court by his majesty's writ of
certiorari, that the prisoner at the bar stands attainted, by the name of
i This averment is now rendered 3 Benefit of clergy and burning in
unnecessary. See 7 and 8 Geo. IV. the hand being now abolished, sec 6
c. 28, 5; ante, p. 387, n. (7). Geo. IV. c. 25, 7 and 8 Geo. IV. c. 28,
^ See preceding note. ante, p. 374, n. (8), this form will
require alteration accordingly.
APPENDIX TO BOOK IV.
Thomas Rogers, of felony for a robbery on the highway, and the said pri-
soner at the bar having heard the record of the said attainder now read to
him, [Prisoner asked what he can say in bar of execution] is now asked by
the court here, what he hath to say for himself, why the court here should
not proceed to award execution against him upon the said attainder. [Plea;
not the same person] HE for plea saith, that he is not the same Thomas
Rogers in the said record of attainder, named, and against whom judgment
was pronounced : and this he is ready to verify and prove, &c. To which said
plea the honourable Charles Yorke, esquire, attorney general of our present
sovereign lord the king, who for our said lord the king in this behalf prose-
cuteth, being now present here in court, and having heard what the said
prisoner at the bar hath now alleged, for our said lord the king [Replication;
averring that he is] by way of reply saith, that the said prisoner now here at
the bar is the same Thomas Rogers in the said record of attainder named,
and against whom judgment was pronounced as aforesaid; and this he prayeth
may be inquired into by the country; [Issue joined] and the said prisoner at
the bar doth the like: [Venire awarded instanterj THEREFORE let a jury in
this behalf immediately come here into court, by whom the truth of the matter
will be the better known, and who have no affinity to the said prisoner, to try
upon their oath, whether the said prisoner at the bar be the same Thomas
Rogers in the said record of attainder named, and against whom judgment was
so pronounced as aforesaid, or not: because as well the said Charles Yorke,
esquire, attorney general of our said lord the king, who for our said lord the
king in this behalf prosecutes, as the said prisoner at the bar, have put them-
selves in this behalf upon the said jury. [Jury sworn] AND immediately there-
upon the said jury come here into court: and being elected, tried, and sworn
to speak the truth touching and concerning the premises aforesaid, and having
heard the said record read to them, [Verdict: that he is the same] do say
upon their oath, that the said prisoner at the bar is the same Thomas Rogers
in the said record of attainder named, and against whom judgment was so
pronounced as aforesaid, in manner and form as the said attorney general hath
by his said replication to the said plea of the said prisoner now here at the
bar alleged. AND HEREUPON the said attorney general on behalf of our said
lord the king now prayeth, that the court here would proceed to award execu-
tion against him the said Thomas Rogers upon the said attainder. [Award of
execution] WHEREUPON, all and singular the premises being now seen and
fully understood by the court here, IT is ORDERED by the court here, that execu-
tion be done upon the said prisoner at the bar for the said felony in pursuance
of the said judgment, according to due form of law: AND it is lastly ordered,
that he the said Thomas Rogers, the prisoner at the bar, be now committed
to the custody of the sheriff of the county of Kent (now also present here in
court) for the purpose aforesaid; and that the said sheriff of Kent do execution
upon the said defendant the prisoner at the bar for the said felony, in pur-
suance of the said judgment, according to due form of law. On the motion of
Mr. Attorney General.
By the Court.
SECT. 4. WARRANT OF EXECUTION ON JUDGMENT OF DEATH, AT THE GENERAL
GAOL DELIVERY IN LONDON AND MIDDLESEX.
London } To the sheriffs of the city of London; and to the sheriff of the
and > county of Middlesex: and to the keeper of his majesty's gaol
Middlesex. \ of Newgate.
WHERKAS at the session of gaol delivery of Newgate, for the city of London
and county of Middlesex, holden at Justice Hall in the Old Bailey, on the
nineteenth day of October last, Patrick Mahony, Roger Jones, Charles King,
and Mary Smith, received sentence of death for the respective offences in their
several indictments mentioned; Now IT is HEREBY ORDERED, that execution of
the said sentence be made and done upon them the said Patrick Mahony and
APPENDIX TO BOOK IV. 839
Roger Jones, on Wednesday the ninth day of this instant month of November
at the usual place of execution. AND it is his majesty's command, that execu-
tion of the said sentence upon them the said Charles King and Mary Smith be
respited, until his majesty's pleasure touching them be further known.
GIVEN under my hand and seal this fourth day
of November, one thousand seven hundred and
sixty-eight.
JAMES ETBE, Recorder, (L. S.)
SECT. 5. WRIT OF EXECUTION UPON A JUDGMENT OF MUBDEB, BEFORE THE
KING IN PARLIAMENT.
GEORGE the Second, by the grace of God of Great Britain, France, and Ire-
land, king, defender of the faith, and so forth; to the sheriffs of London and
sheriff of Middlesex, greeting. WHEREAS Lawrence earl Ferrers, viscount Tarn-
worth, hath been indicted of felony and murder by him done and committed,
which said indictment hath been certified before us in our present parliament;
and the said Lawrence earl Ferrers, viscount Tamworth, hath been thereupon
arraigned, and upon such arraignment hath pleaded not guilty; and the said
Lawrence earl Ferrers, viscount Tamworth, hath before us in our parliament
been tried, and in due form of law convicted thereof; and whereas judgment
hath been given in our said parliament, that the said Lawrence earl Ferrers,
viscount Tamworth, shall be hanged by the neck till he is dead, and that his
body be dissected and anatomized, the exeecution of which judgment yet re-
maineth to be done: WE require, and by these presents strictly command you,
that upon Monday the fifth day of May instant, between the hours of nine
in the morning and one in the afternoon of the same day, him the said
Lawrence earl Ferrers, viscount Tamworth, without the gate of our tower of
London (to you then and there to be delivered, as by another writ to the
lieutenant of our tower of London or to his deputy directed, we have com-
manded) into your custody you then and there receive: and him, in your
custody so being, you forthwith convey to the accustomed place of execution
at Tyburn : and that you do cause execution to be done upon the said Lawrence
oarl Ferrers, viscount Tamworth, in your custody so being, in all things ac-
cording to the said judgment. And this you are by no means to omit, at your
peril. WITNESS ourself at Westminster the second day of May, in the thirty-
third year of our reign.
YOBKE and YORKE,
INDEX.
[References are to pages.'}
Abatement, of nuisance 425
ouster by 508
Abduction 486, 487
Abeyance, defined 181
Accessaries. See Crimes.
Accession, property by 347
Accord, definition and effect of 432
Actions. See Assumption; Debt; Trespass; Trespass in the Case, etc.
defined 469
species of, and when they lie 469, 497 el seq.
local and transitory 556
Adjournment, defined 47
Administration, Administrators, 4th section of statute of frauds 407
origin and history of administration 401
administrators, defined 403
how appointed 403
kinds of 410
who entitled to administer. 404, 410
duties of administrators 412
method of distributing estate. 415
Admiralty, Courts of 456
jurisdiction of 462
procedure in. . 464
criminal jurisdiction of 738
Adultery, action for 485
not a crime at common law 656
Ad vowson, defined 143
Affidavit, defined , 564
Affrays. See Crimes.
Agency. See Master and Servant.
Ages, recognized by the law 121
Agistment 37!)
Air, right to 143, 345
A! ien enemy, seizure of goods of 344
Aliens, defined , 82
disabilities of 252, 273
[841]
842 INDEX.
{References are to pages."}
Alienation, title by, defined 274
restrictions upon alienation, removed by statute 275
who may alien, and to whom 276
modes of alienation 278 et seq.
alienation by deed 278, 279-
record 278, 311
special custom 278, 321
devise 278, 325
Alimony, defined. . 108-
suit for 460
Allegiance 82
Alluvion 258
Ambassadors, rights, privileges, etc., of 58, 658, 650
children of 86
Amendment 608, 791
Ancient demesne, defined 177
Animals, nature of property in, and how acquired. . . .143, 335, 340, 346, 727
Annuities 153
Appeals, in equity 634
from courts of law 607
Appearance, how effected 544
in person 438
by attorney 438-
Apprentices, defined 98
Approvement 765
Arbitration, definition and effect of . . . v . 432
rule of court , 433
Aristocracy, defined 7
Arms, right to bear 35-
Arraignment. See Crimes.
Arrests, defined % 540
how and by whom made 549, 746
who privileged from 550-
Arson. See Crimes.
Assault. See Crimes.
Assignment, defined 295
of chose in action 36
Assise, Courts of. See Courts.
Assumpsit, when it lies 500, 503
See Trespass in the Case.
Attachment, a kind of process 544
Attainder, effect of 253, 792
Attorney-at-law, defined 438-
admission of . 438
INDEX. 843
[References are to pages.]
Attorney and Solicitor-General 439
Attornments , 275
Audita querela, when it lies 606
Award. See Arbitration 432
B.
Bail, special 551 et seq.
to the action 552
in criminal prosecutions 749
Bailiffs. . . ' 4 73
Bailment, defined , 378
creates a special property 378
Bankruptcy 273, 390
Bargain and sale, conveyance by .305, 306
Baron, defined 91
Barristers, admission of 439
patent of precedence 439
rights and duties of 440
Bastards, defined 115, 252
duty of parents to 117
rights and incapacities of 118, 252
Battery. See Crimes.
Benefit of Clergy 782
Bigamy. See Crimes.
Bill in equity, nature of 623
proceedings upon 625
kinds of bills 628
Bill of exceptions 592
Bills of exchange, defined 385
kinds of 385
indorsement 386, 388
acceptance, etc 387
protest 387
Blasphemy, defined 655
Body, no property in when dead 356
Bond, defined 307
Bond, condition of 308
forfeiture of 308
no consideration necessary 372
Borough English, described 1 6!>
Bottomry 382
Bribery. See Crimes.
Burgage tenure, described 169
Buro;larv. See Crimes.
844 INDEX.
, [References are to pages.]
c.
Canon law, adopted in certain courts 17
consists of what 17
Capias ad respottdendum, commencement of actions by 540
a kind of process 543
Capias ad satisfaciendum 610
Castle, every man's house his 550
Challenges, to jurors 583, 774
to fight 68ft
Champerty. See Crimes.
Chancery, High Court of. See Courts; Equity.
Charters 358
Chattels. See Personal Property.
defined 333
kinds of 333
effect of marriage on, of wife 302:
Chose in action, defined 341
how created 342
Civil law (Roman) , adopted in certain courts 17
consists of what 17
Clergy, The. See Benefit of Clergy 8J>
Codicil, defined 407
Common, right of, defined, and kinds of 149-
Common carriers 378, 50
Common counts 503
Common law, three kinds of 12:
Common pleas. See Courts.
Common recovery, origin of 317
defined 317
how levied 317
force and effect of 31 ft
Commonalty, degrees of 93
Commons. See House of Commons.
Commons, rights of 14I>
Conditions.
estates upon 2f'8
kinds of 209, 308
distinguished from limitation 208
Confirmation, deed of, defined 294
Confusion of goods 348
Consanguinity, defined 104, 239
kinds of. . 231>
degrees of, how computed 245
in case of gra-nts of administration 410
INDEX. 845
(^
[References are to pages."]
Conservators of the peace 75
Consideration, kinds of, defined 371
of a deed ; 372
contract 371
Constable, name, kinds of, and duty 77
Constitution 34
Construction. See Interpretation and Construction.
rules of 9, 329
Contempts. See Crimes 743
Continuances, defined 572
Contract. See Consideration.
defined 369
kinds of 370, 373
consideration 371
Conversion. See Trover.
Coparcenary. See Estates in Coparcenary.
Copyholds, origin and description of 171 et seq., 205
incidents of , 176
Copyright 349, 352
Cornage, tenure by ? 166
Corodies 153
Coronation oath 54
Coroner, name, power, and duty 73, 580
Corporations, defined 124
kinds of 124 et seq.
how created 127
powers, rights, capacities, etc. . . . : 129
visitation of 132
dissolution of. . . 134
no escheat in case of lands held by 255
succession to property of 360
Costs, an incident to the judgment v 66, 367, 605
taxation of 605
in equity 632
Councils, of the king 53
Counsel 439
Counterfeiting, great seal 665
Counties 23
Countries, subject to England 22
Courts. See Jurisdiction.
Courts, defined 436 and note
kinds of 436, 437
constituent parts of 437
of common law and equity. 441
346 INDEX.
-f .> - .
[References are to pages.]
Court* of common law and equity.
pie poudre , 441
court baron ' 442
hundred court 442
county court , 442
of Common Pleas 442
Exchequer 447
Exchequer Chamber 454
v - y King's Bench 442
of Chancery 449, 45 1
Equity in Exchequer Chamber 448
House of Lords 454
Assise and Nisi Prius 454
ecclesiastical, military and maritime 456, 458, 461, 462
of a special jurisdiction 457
criminal jurisdiction 737
in the United States ^ 455
Covenant, who may take advantage of , 498
to stand seized 305
Covenant, action of, when it lies . . . 498
Crimes and criminal law ; nature of crimes 641
persons incapable of committing 643
infants 643
the king -. 649
insane persons 644
effect of intoxication 645
accident 640
ignorance 646
compulsion 646, 649
principals and accessaries 650
kinds of principals 650
accessaries. . . 650
what offences admit of 650
who may be accessary before the fact 05 J.
after the fact 652
how treated 653
arraignment of 654, 763
reasons for distinctions between principals and accessaries 654
Crimes against God and religion 655 et seq.
apostasy, heresy, blasphemy 655
common swearing 655
' witchcraft, etc 655
religious impostors 655
* - simony 656
INDEX. 847
[References are to pages.]
Crimes against God and religion.
profanation of the Lord's day 656
drunkenness. . 656
lewdness 656
against the law of nations 657
violation of safe-conducts 657
rights of ambassadors 657
piracy 659
treason, defined 661
kinds of 661 et seq.
statute 25 Edw. III. c. 2 , 662
new treasons 665
punishment of 666
felony, defined 667
praemunire 669
misprisions and contempts, defined 070
kinds of 670 et seq.
method of punishing 672, 673
against public justice 674 et seq.
embezzling or vacating records 674
obstructing process 674
escape 674
breach of prison 675
rescue 675
receiving stolen goods 676
compounding felony 677
common barratry 677
maintenance 677
champerty 677
compounding informations upon penal statutes 678
conspiracy 678
perjury 679
subornation of 680
bribery 681
embracery, extortion, etc 681
against the public peace 683 et seq.
riotous assemblies 683
Grimes, affrays 683
riots, routs, etc 684
tumultuous petitioning 684
forcible entry or detainer 684
going armed, etc 685
spreading false news 686
false and pretended prophecies 68(5
848 INDEX.
"
[References are to pages.] >
Crimea.
challenges to fight 686
libels , 6M
against public trades 689 et seq.
owling 689
smuggling ; 68!>
usury 68!)
cheating 689
false pretences 690
forestalling, regrating, and engrossing 691
monopolies and combinations , 69 1
against public health and public police. '. 693 et seq.
violating quarantine 693
selling unwholesome provisions 693
bigamy 694
common nuisances 695
eavesdroppers 697
vagrancy 695
gaming , 696
killing game 698
homicide. . , 699 et seq.
defined, 699
kinds of 699 et seq,
self defence 701 et seq.
manslaughter 705
suicide 705
murder 704, 707
malice 476, 705, 710, 712
petit treason 713
against the persons of individuals 714
mayhem 714
rape 715
crime against nature 716
assault and battery 717
kidnapping 717
false imprisonment 717
Crimes against habitations of individuals 718
arson 718
burglary 719
against private property 724
larceny 724
robbery 730
malicious mischief 731
forgery 732
means of preventing offences 733
INDEX. - _^ , ,~^ 849
[References are to pages.]
Crimes.
courts of criminal jurisdiction 737 et seq,
summary convictions 741
arrest 745
commitment and bail 74!)
modes of prosecution 753
presentments 753
inquisitions 753
indictments 754
grand jury 754
informations 759
process upon an indictment 760
arraignment, 762
standing mute 764
confession 765
approvement 765
king's evidence 766
plea and issue , 767 et seq.
demurrer 767
trial and conviction 772
kinds of trials 772
challenges 774
evidence 776, 777
verdict 779 et seq.
consequences of conviction 780
benent of clergy 782 et seq.
judgment and its consequences 731
attainder 792
reversal of 795
reprieve and pardon.' 792, 797
execution 801
Curtesy, tenancy by, defined 193
requisites 193
Custom, denned 260
general and, special 12, 16
validity of, determined by the judges
rules relating to
title by 260, 357
D.
Damages, right to, how acquired and lost 366
in ejectment
Day, defined 20
007
Days of grace
850 INDEX.
[References are to pages."]
Deaf and dumb persons, disability of 277
Death 30
Debt, defined 383, 496
kinds of 384
Debt, action of, when it lies 496, 501, 615
Declaration. See Pleading.
Decree in equity, kinds of 622, 632
Deed. See Alienation.
defined 279
kinds of 279
requisites of 280
parts of a 282, 285, 803
how avoided 286, 287
Defeasance, defined 296, 309
Democracy, defined 7
Demurrer, defined 571
form of 571 \
general and special 571
how determined , 573
to evidence 592
in equity. See Equity.
Denizens 87
Depositions, in chancery. See Equity.
Descent, titte by, defined 239
rules of 240 et seq.
Detinue, when the action lies 494
Devise. See Wills.
Dignities 152
Discontinuance * 509, 513, 560
Disseisin, defined 508
Distress, defined , 425
when lawful 425, 426, 432, 530
what subject to 426
how made, disposed of and avoided 428, 430
a kind of process. 429
Disturbance, defined 531
kinds of 531
Disturbance, remedies for 532
Divorce, kinds of 107, 459
alimony 108, 460
suits for, cognizable where 459
Donation causa mortis 418
Dower, tenancy in, defined 19.4
who may be endowed 194
INDEX. 851
.. . .
[References are to pages.]
Dower, of what endowed 1 05
manner of endowment 1 H6
assignment of ! ] 97
how barred 198
jointure 199
Duke, defined. . , 90
Duress 30, 276, 647
.
Earl, defined 90
Easements 151
Ecclesiastical courts, names of 456
jurisdiction of 458
procedure in 457
Ejectment, title to lands usually tried by 513, 519
when it lies 514 et seq.
method of bringing 514
damages in 518
Elegit, estate by 213
writ of ' 613
Emblements, who may have 191, 203, 346
nature of ownership of 317
Entry, as a remedy 510
must be peaceable 311
Equity, proceedings in courts of 616 et seq.
li i jurisdiction exercised by courts of 617, 634, note
nature of 617 et seq.
difference between courts of equity and of law 617 et seq., 620
commencement of suit in 623
subsequent proceedings 625
pleading in 626, 627
evidence in 621, 629
method of hearing causes 622, 631, 635
decree in 622, 632
feigned issues 633
references 633
rehearing and review 634
Equity of redemption 212
Erasures, in deed 287
Error, writ of. See Writ of Error.
Escapes 611, 674
Escheat, defined 171, 250
a consequence of tenure in chivalry 250
kinds of ; 251, 255
'352 INDEX.
[References are to pages.]
Esquires 93
Estate. See Freehold, etc.
defined 170
Estate-tail. See Fee.
Estates upon condition, kinds of 207
Estates in coparcenary, denned 229
how it arises 230
properties of 230
how dissolved , 230
Estates in joint tenancey, denned 224
how created 224
properties and incidents of 224, 225
how severed .' 227
in personalty 343
king cannot be a joint tenant 351
Estates in possession 214
remainder 214
Estates in severalty, defined 224
Estates at sufferance, defined . 206
Estates at will, defined 203
incidents of 204
how determined 204
Estates for years, defined ... 200
incidents of 203
Estoppel, pleas in 566
Estovers 151, 190, 203
Estrays 67, 144
Es-trepement, a remedy for waste 528
Evidence, defined 588
kinds of 588
what kind and amount required 588 et seq.
hearsay , 588
presumptions 591
exceptions to 592
in equity 629
criminal evidence 776
Exchange, defined. 292, 373
Exchequer, Court of. See Courts.
Exchequer Chamber, Court of. See Courts.
Execution, follows judgment 60l)
kinds of writs of 609, 610, 613
when to be sued out 614
in criminal cases 801
Executor, defined 41)!'
how appointed . 409
INDEX. 853
[References are to pages.]
Kxecutor, duties 412
de son tort 412
Executory devises, defined 220
distinction between, and remainder , 22 1
Extent, writ of 614
F.
False Imprisonment. See Crimes ; Habeas Corpus.
action for , 478, 484
Fealty, defined 82, 150
Fee simple, defined 180
base or qualified 18.1
conditional < .* . . 184
tail, origin of 185
what may be entailed 185
species of estates-tail 186
words necessary to create 187
incidents of 187
how barred 187
after possibility of issue extinct 192
Felony. See Crimes.
defined 667
Feoffment, defined . . .' 288
form of 803
Feudal system, history of 156 et seq.
fundamental maxim 158
Fieri facias 612
Fines, defined 313
how levied 313
kinds of 314
effect of 315
Fish), nature of right to take 354
Fixtures 269, 359
Flotsam 65
Forcible entry and Detainer. See Crimes.
Foreclosure 212
Forfeiture, title by .263, 355
for what lands, etc., may be forfeited 67, 263 et seq.
goods and chattels - 67, 351
Forgery. See Crimes.
Franchises '. - 153
Frankalmoign, defined 178
Fraud, a defence 372
Freedom of speech and of the press 28, 687
854 INDEX.
[References are to pages.']
Freeholds. See Fee; Life Estate.
defined 179
kinds of 179
inheritance, 179, 189, 202
G.
[
Game. See Crimes.
nature of right in 144, 353
Gaolers 73
Gavelkind, defined 169
Gentlemen. . . , 93
Gift, conveyance by, defined 290
of personalty, defined 368
requisites 369
Government, different forms of 7
British form of 8
Grand serjeanty 167
Grants, defined 312
of the king, how construed 312
Guardians, defined 119
kinds of 119, 123
power and duty of guardian and ward -. 120
ad litem 121
testamentary 120, 123
remedy of, for injury to ward 487
H.
Habeas corpus 32, 479 et seq.
Half-blood, cannot inherit 24(5
admitted to administer 411
Heirlooms 145, .. 359
Heirs, defined 241
when this word must be used in order to make a fee 182, 187
Hereditaments. See Real Property.
Heriots, denned 176, 357
seizing of 432
High court of justice 441, note
Homage, defined 159
Homicide. See Crimes.
Hotchpot 421
House of Commons ^ 39
laws and customs of ; -41, 43
INDEX. 855
[References are to pages.]
House of Lords. See Parliaments, Lords of Parliament.
laws and customs of 34, 39, 4-5
jurisdiction of 454
Hundreds 23
Husband and wife. See Marriage.
rights and duties of 103 et seq.
disabilities of wife 277, 405
husband may be wife's administrator 404
action for injuries to 486 et seq.
^
I.
Idiots, and insane persons; who are idiots 68
jurisdiction over 616
disabilities of . 276, 404, 645
who may take advantage of disability 277
Ignorance, of law no excuse 6
Imparlance 561, 562
Impeachment, of king's advisers 56
method of 737
Imprisonment, what is 30, 32
when lawful 32
Indebitaius assumpsit 497
See actions in the case.
Indenture, defined 279
Indictment. See Crimes.
Indorsement. See Bills of Exchange.
Infants, en venire sa mere 29
privileges and disabilities of 121 et seq.
criminal capacity of 121, 714
Information. See Crimes.
nature of 536
when it lies 536
in nature of quo icarranto 538
Inheritance, canons of 240 et seq.
Injunction, to stay waste 528
Injuries. See Wrongs.
Innkeeper 378 ' M5
Inquest of office, defined 535, 753
Insane persons. See Idiots.
Insurance, nature of contract
International law. See Crimes 657
Interest . . .
380
Interpretation and construction, rules for 9,
Intrusion, defined . . - 508
856 INDEX.
[References are to pages."]
1 slands, title to ; 258
Issue, defined 571
kinds of 571
how tried 572
J.
Jailers 73
Jetsam 65
Joint tenancy. See Estates in Joint Tenancy.'
Jointure. See Dower.
Judges, how commissioned , 62
Judgment, defined 365
kinds of 603
causes of suspending or arresting 598, 600
relation back of 614
satisfaction of 614
in criminal cases 791
reversal of 795
Jurisdiction. See Courts.
of ecclesiastical courts 458
courts military 462
admiralty courts ........ , 462
courts of common law 464
Jury. See Trial; Crimes.
special and common 582, 583
challenges > 583
exemptions , 586
tales-men 586
Justice of the peace, appointment, power, duty, etc .' .75, 734
jurisdiction in summary convictions 741
E.
King, The, and his title 49
his royal family 51
councils 53
duties 54
prerogatives 55
revenue 65 et seq.
cannot be a joint tenant 351
grant of chattel to 361
grants by 312
assignment of chose in action to 370
can do no wrong 56, 533
_^_ INDEX. 857
[References are to pages.]
King, The, no action against 533
remedies against 534
remedies of, against subject 534
King's Bench. See Courts.
Knight 92
Knight service, defined 163
fruits and consequences of 164
L.
Land. See Real Property.
Larceny. See Crimes.
Latitat, writ of, when issued 548
Law, defined 1-4
of nature 2, 3
revelation 3
nations 3, 4
municipal law defined 4
classified 11
of nations, crimes against 657
how notified 4-5
ex post facto
ignorance of, no excuse 6
power to make, constitutes the supreme authority 8
several parts of a law
interpretation of
lex scripta and non scripta . 1 1
common . . . 12
countries subject to law of England 22
Lease, defined 290
Lease and release, conveyance by ., 306, 803
Legacy, defined 416
kinds of 417
how perfected and paid 416, 417
Letters of marque and reprisal, by whom issued 59
Letters patent, defined
Levari facias **
Libel, civil action for >....*.., 470
indictment for 686
Liberty. See Freedom of Speech and the Press.
natural
political, or civil 27
n I
personal
00
religious
of the press
life and natural right 29, Si
858 INDEX.
[References are to pages.]
Life estate, kinds of : IfW
how created 18!>
incidents of 190
Light, right to 143, 345
Limitation, distinguished from condition 208
Livery of seisin. See Seisin.
Lords of Parliament. See Nobility.
spiritual and temporal 38, 39
privileges of 40
M.
Magistrates, supreme and subordinate 36
subordinate 71
Maintenance. See Crimes.
Majority, binds whole 44, 131
Malice. See Crimes.
in torts 476
Malicious prosecution 477
Mandamus, writ of, defined 465
when it lies , , 465, 539
Manor, definition and description of 1 72
Margins 90
Market overt 377
Marriage. See Husband and Wife.
a civil contract 103
requisites of 103
disabilities .104, 277, 278
how dissolved 107
consequences of 108 et seq., 362
Master and servant, kinds of servants 95
rights and duties as respect each other and third persons. .97 et seq., 487
Master of the Rolls, jurisdiction of 630
Mayhem 29, 714
Merger, when takes place 223
Military tenures, abolished .-: 167
Mines 66
Misprisions. See Crimes.
Monarchy, defined 7
Monsters, cannot inherit 25 1
Month, defined 2iO
Mortgage, kinds of 210
rights of parties to 211 et seq.
Mortmain, defined 131, 263
history of statutes of 263 et seq.
INDEX.
[References are to pages.'}
Mortuaries, defined, etc 357
Municipal Law. See Law.
Murder. See Crimes.
Mystic testament 404 note
N.
Natural-born subjects 82
Naturalization 87
Necessaries. See Infants; Married Women, etc.
Negotiable Instrument Law 388
2V e exeat, writ of 33
New trial, when granted 559
Night 71
Nisi Prius, Courts of. See Courts.
Nobility, degrees of, derived from the king 90
incidents attending 91
Nonsuit 559, 594
Nuisance. See Crimes.
defined 524
abatement of 425
kinds 'of 524
remedies for 526
0.
Occupancy, title by, how acquired 256
in things personal 344
Offices ] 152
Original writ, defined -. 541
kinds of 542
return of ^ 543
Ouster, defined . . 508
kinds of 508
of chattels real 514
Outlawry, in civil cases 547
Overseers of the poor 78
Oyer 561
P.
Paraphernalia, defined 364
Pardon, plea of 792
what may be pardoned 798
manner of pardoning 799
effect of . 800
860 INDEX.
[References are to pages.]
Parent and child. See Bastard.
legitimate child, defined 112
illegitimate child, defined 115
duties of parents , . 1 1 2
power of parents 114
duties of children s 115
Parish ' 23
Parliament, branches of 37
assembling of 36
power and jurisdiction of 34, 3!)
law and custom of 34, 39, 43
privileges of 34, 40
adjournment, prorogation, and dissolution of 48
as a criminal court 737
Partition, defined 292
Passports 60
Patent, letters of 312
Peers. See Nobility.
how created 90
Penalties 365
Perjury. See Crimes.
Personal liberty 31
Personal property. See Chattels.
nature and kinds of 145, 333, 335
how acquired 335
time of enjoyment of 342
number of owners 343
effect of marriage on, of wife 362
Personal security 29, 30
Petition of right 481
Petit Serjeanty, tenure in, described 169
Piracy .' 659
Pleading. See Demurrer; Equity; Criminal Law.
defined 554 ; 555
names of the different pleadings 551
declaration 55fJ
counts of , 55S
defence 560
pleas 561, 56'2
kinds of 502
general issue 565
special pleas 565, 566
duplicity '. 566, 568
pnis darrcin continuance 57'!
replication 567, 56H
INDEX. 801
[References are to pages.]
Pleading, rejoinder, etc 508
departure 568
new assignment 568
< issue 570, 571, 572
repleader 602
in equity v 626
Postea, defined 598
Pound, defined 430
Fraemunire 660
Precedents, to be followed 13
Prerogative, limitations of : 34
division and consideration of 55 et seq.
title by 35L
contempts of 071
Prescription, title by 260
distinction between custom and prescription 260
what may be prescribed for 2(R)
Presentment . . * 753
Primogeniture 242
Prince of Wales 52
Private property, right to 28, 3:J
Privies, defined 310
Proccdendo, writ of 405
Process, defined 544
kinds of 544 et seq.
Prochein amy, suit by 121
Profert and Oyer 5ti 1
Prohibition, writ of, defined 467
when it lies 467
procedure upon < ; 407
Promissory note, defined
consideration of 372
assignable 386
indorsement 3811
protest of 387
Property. See Real Property; Personal Property.
origin and nature of 33, 137 ct seq.
in things personal 335 et seq.
in chattels, how acquired 143.
in animals
Prorogation, defined
division and consideration of 47
Province
Purchase, defined
difference between and descent
methods of acquiring title by 250
862 INDEX.
[References are to pages.]
Q.
Quantum meruit 503
Quantum valebat 503
Quarantine 693
Queen, consort, regnant, and dowager 51, 406
Quia emptores, statute of 275
Quit-claim deed 291
Quo minus, writ of > 548
Quo warranto, as a means of dissolving a corporation 135
information in nature of 759
R.
Rape. See Crimes.
Real property. See Freehold, etc.
nature and kinds of 145
land 145
tenements , 145
hereditaments . 145
incorporeal, sorts of 149
heirlooms . . , 145
conditions 145
effect of marriage on, of wife 362
Recaption 424
Recognizance, defined 308
for "the peace, etc 735
Record 1 , what constitutes 573
verity of 437
in what language written 574
Release, defined 293
Remainder, defined 214
kinds of 217
how limited 217
requisites of 217
contingent 217 ct seq,
executory devises 220
Remedies. See the several Actions.
of wrongs, by the mere act of the injured party 423
by joint act of both parties 432
by mere operation of law 434
by action 436
for ouster 508
Remitter, defined 434
Rent, defined 15i
kinds of . 154
INDEX. 863
[References are to pages.]
Rent, when and where due 155
remedy for 155
Replevin, when the action lies 489 et seq.
Reports, evidence of the law 14, 15
Representation, right of 421
Reprieve, defined 797
kinds of 797
Rescue 675
Respondentia 382
Retainer, defined 434
Retraxit 560
Revealed law. See Law.
Revenue of the king 65
Reversion, defined 214, 222
how arises, and incidents of 222
Rights, division of 25, 20
fundamental articles of 25, 27
absolute 25, 27
how forfeited > 31
auxiliary subordinate rights of the subject 34
Riot. See Crimes.
Robbery. See Crimes.
Roman civil law. See Civil Law.
Routs. See Crimes.
Royal family , . . . 51
s.
Safe-conducts 60, 657
Sale, defined 373
rules concerning 373
statute of frauds 376
Schoolmaster, power of -. 115
Scire facias, when it lies 536, 615
Seisin, livery of, defined 288, 281)
when necessary 288
kinds of 288
Self-defence. See Crimes.
Serjeants-at-law 438, 439
Set-off 565
Settlement, how gained 79-81
Severalty, estates in 224
Shelley's case, rule in 249
Sheriff, derivation of name 71
power and duty of 71, 580
inferior officers of 73
8G4 INDEX.
[References are to pages.]
Simony, defined , 269
Six Carpenters' Case 522
Slander, when spoken, words are actionable 474, 475
Slavery 00
Socage, definition and description of 168
Society, natural foundations of /.-... 6
original contract of u
State's evidence 7fi(5
Statutes, method of making ' 44
Statute de donis, effect of on conditional fees 185
Statute merchant and staple, defined 214, 614
Statute of distributions 41!)
Statute of frauds, as affecting uses 304
wills 326
17th section 376
4th section 384
of limitation 260, 566
Statute of uses. See Uses.
Statutes, different kinds of 18, 19
rules for construction of 20
method of making 44
Stoppage in transitu 374 note
Subposna, ad tcstificandum 589
in chancery 625
Subtraction, defined 530
remedies for 530
Succession, title by 360
Suicide. See Crimes.
Summary convictions 741
Summons, commencement of actions by 540 note
Surrender, defined 294
as a method of conveying copyholds 392
Surveyor of the highways 78
T.
Taxes, imposed only by consent 34, 70
a branch of the prerogative 35 1
Tenancy in common, defined 23 1
how created 231
incidents of 233
how dissolved 234
in personalty 343
Tender, plea of 564
Tenement. See Real Property.
INDEX. 865
[References are to pages.)
Tenure, defined 158
fundamental maxim of 156. 158
ancient English tenures 162
modern English tenures 168
Testaments. Se Wills 401, 406
Time, divisions of 200
Tithes, defined 149
Title, defined 235
degrees of 235
how lost and acquired 237
by descent 239 et seq.
by purchase 248 et seq.
Tombstones, descend to heir 359
Torts. See Wrongs 423
Towns 23
Treason. See Crimes.
Treasure-trove : 66
Treaties, made by king 59
Trespass. See Action of Trespass, infra.
defined 471
Trespass, action of, when it lies 471, 484, 485, 488, 493, 520
Trespass on the case. See Assumpsit.
when it lies 473, 488, 497, 505
Trial. See Criminal Law.
defined 575
kinds of 575
by record 575
inspection 575
certificate 576
witnesses 577
battle ' 577
wager of law 578
jury . . . 579 et seq., 587
defects of trial by jury 596
Trover and conversion, when the action lies 494
Truth, when a defence 477
Trusts. See Uses and Trusts.
u.
Under-sheriff 73
Uses and trusts, origin of 2 6 et Sf( *-
conveyances under the statute of uses 305-307
rules respecting uses "97 et seq.
statute of uses
in what courts cognizable 300
866 INDEX.
[References are to pages.]
Uses and trusts, contingent uses 301
secondary uses 302
statute of frauds * 304
rules respecting trusts 304
Usury 380
V.
Venire facias, writ of 579
Venue, change of , 597
Verdict, kinds of 595
method of finding and returning 594 et seq.
in criminal cases 779
Veto power 38
View 561
Villenage, origin and description of 171 et seq.
Viscount, denned 91
w.
Waifs 66
Ward. See Guardian.
Warrant of attorney 604
Warrants, by whom granted 745
special and general 74<i
Warranty, upon sale of chattels 378, 526
Waste, defined 269, 527
kinds of 270, 527
who punishable for 27 1
penalty for committing 272
who injured by 527
remedies for 528
action of 1 528
Water, right to 143, 345
W'ays 151
Wills, origin and history of 325, 401
statute of 325, 326
how executed 326, 327
rules for construing * 329
who may make 325, 404
of chattels 401
nuncupative and codicils 406. 407
when take effect 406, 403
how avoided 403
probate of 460
INDEX. 867
[References are to pages.]
Witnesses, attendance of, how procured 589
competency of 590, 715
number required 591, 777
oath of 592
how examined in equity 029
Wrecks 144
Writ of entry 512
Writ of error, when it lies COS
judgment on 453
in criminal cases 796
Writ of inquiry 004
Wrongs, defined 423
species of 24
remedy for. See Remedies 429
Y.
Year, defined 200
Yeoman . 93
[Total number of pages 883.]