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B-ilC,
THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
COMMENTARIES
ON THE
j.atos of CnglanD
BOOK THE THIRD.
B Y
Sir WILLIAM BLACKSTONE, Knt.
ONE OF THE JUSTICES OF HIS MAJESTY'S
COURT OF COMMON PLEAS.
THE THIRTEENTH EDITION,
WITH THE LAST CORRECTIONS OF THE AUTHOR
jiND fVJTH NOTES AND ADDITIONS
By EDWARD CHRISTIAN, Efq,
BARRISTER AT LAW,
AND PROFESSOR OF THE LAWS OF ENGLAND
IN THE UNIVERSITY OF CAMBRIDGE.
LONDON:
PRINTED BY A. STRAHAN,
JAW-PRINTER TO THE KJNc's MOST KXCELLENT MAJtSTT,
FOR T. CADELL JUN. AND W. BAVIES IN THE 3TRANB.
x8oo.
a ^m^Jt
K
E5Gc
CONTENTS. ^^^
BOOK III.
Q/' Private Wrongs.
C H A p. t
Of the Redress of Private Wrongs
by the mere a^ of the Parties. Page I
CHAP. II.
Cy Redress by the mere operation of 'L.Hi.'vi, 18
CHAP. IIL
0/" Courts in general. 22
CHAP. IV.
Of the Public Courts of Common
Law and R(ijj it y. ^O
CHAP. V.
Of Courts Ecc-lesiastical, Mili-
tary, and Maritime. Ct
A 2
i\r
CONTENTS.
C H A p. VI.
O/" Courts ^t/" ^ Special Jurisdiction. 71
CHAP. VII.
Of the Cognizance of Private Wrongs. S6
CHAP. VIII.
Of Wrongs an^ their Remedies, rejpe5fing
the Rights of Persons. 115
C H A P. IX.
Of Injuries to Personal Property, 144
CHAP. X.
Of Injuries to Real Property, and firft
of Dispossession, or Ouster, of the
Freehold. 167
' C H A P. XI.
Of Dispossession or Ouster of Chattels
Real. 198
CHAP. XII.
Of Trespass. 208
CHAP. XIII.
0/" Nu S A N CE. 1\S
CHAP. XIV.
Q^ Waste, 223
CONTENTS. V
CHAP. XV.
Of SUBTRACTIOK, 230
CHAP. XVI.
Cy Disturbance. I'^^
CHAP. XVII.
Of Injuries 'proceeding from, or affeifing
the Crown. 254
CHAP. XVIII.
Of the Pursuit c/ Remedies hy Ac-
tions and, firfi, of the Original
Writ, 270
CHAP. XIX.
Cy P R O C E S S, 279
G H A p. XX.
Of Pleading. 203
CHAP. XXI.
Of Issue and Demurrer. 314
CHAP. XXII.
Of the feveral Species of Trial. 325
CHAP. XXIII.
Of the Trial hy Jury. 349
yi C d N' T E N t 1
CHAP. XXIV.
Q/" Jup^GMENT, and ifs Incidents. 385
C H A P. XXV.
^Of Proceed-ings in the nature of Appeals. 402
C;K A p. XXVi.
Cy Execution, , 412
CHAP. XXVII.
Of Proceeding"^ 'l;i the CbtjRTS of Eoi^ity. 4^6
CONTENTS. va
APPENDIX,
^^ J. Proceedings on a Writ of Right Patent, Page \
I. Writ of Right patent in the Court Ba ron. ibid-
^ 2. Writ of ToLT, to remove It Into the Country
Court. ibii.
3. Writ o/" Pone, to remove It Into the Court of
Common Pleas. li
4. Writ of Right, quia Domlnus remifit Curiam. iJi
^ 5. The Record f ivlth aivard of Battel. iv
^ 6. Trial hy the Grand AJJize, v\
J^P 11. Proceedings on an ASlion of Trefpafs in Eject-
ment, by Original in the Kind's Bench. ix
^ 1 . 7"/^^ Ori^hial Writ. ibid.
j- 2. Copy of the Declaration agalrji the cafual Ejedor ;
who gives Notice thereupon to the Tenant in
Poffejfion. ibid.
$ 3. The Rule of Court. xi
^ 4. The Record. xii
K'' ni. Prcrredirrgi on an aHion cf Debt, in the Court
of Co:'ninon Picas; removed into the King's
Bench hy Writ ^/^Er^or. xvi
<^ I. Original. ibid*
2. Prcccfe. ibid.
3. Bill of Middlcfex, and Latitat thereupon, in the
Court of Jting's Bench. xxii
4. Writ of Quo minus in the Exchequer. xxiv
$ 5. Special Ball; on the Arrefl of the Defendant y
purfuant to the Teftatum Capias, in page xiv. ibid.
$ 6. The Record, as removed by Writ 0/" Error.. xxvi
J 7* Proceff of ExectUlon. xxxiii
COMMENTARIES
ON THE
LAWS OF ENGLAND.
BOOK THE THIRD.
OF PRIVATE WRONGS.
CHAPTER THE FIRST.
OF THE REDRESS OF PRIVATE WRONGS
BY THE MERE ACT OF THE PARTIES.
AT the opening of thefe commentaries municipal
law was in general defined to be, *' a rule of civil
" condua:, prefcribed by the fupreme power in a
** ftate, commanding what is right, and prohibiting what is
* wrong b." From hence therefore it followed, that the
primary objeds of the law are the eftablifliment of rights,
and the prohibition of wrongs. And this occafioned = the
diftribution of thefe colledions into two general heads;
under the former of which we have already confidered the
rights that were defined and eftablifhed, and under the latter
are now to confider the nvrotigs tha^ are forbidden and re-
drefled, by the laws of England.
In the profecution of the fira of thefe inquiries, we diftin- [
guifhed rights into two forts : firft, fuch as concern or are
* ^"'''-- Braft. /. I. r. 3.
!>anmojuji0,juhens hanefla, et pro- c Book I. ch. i,
hihent centraria. Cic. 11 P/iili^^, i,
'^'- "' B annexed
2
2 Private Book III.
annexed to the perfons of men, and are then caMed Jura per"
fotiarumy ox the rights of perfons ; which, together with the
means of acquiring and lofing them, compofed the firft book
of thefe commentaries : and, fecondiy, fuch as a man may
acquire over externa] objedls, or. things unconneled with
his perfon, which are c^iWtd jura rerunij or the rights of things;
and thefe, with the means of transferring them from man to
man, were the fubjeft of the fecond book. I am now there-
fore to proceed to the confideration of wrongs ; which for the
moft part convey to us an idea merely negative, as being no-
thing elfe but a privation of right. For which reafon it was
iiectirary, that, before we entered at all into the difcuflion of
wrongs, we fliould entertain a clear and diftindl notion of
rights : the contemplation of what is jus being neceflarily
prior to what may be termed injuria^ and the definition of
fas precedent to that of nefas.
Wrongs are divifible into two forts or fpecies ; private
wrongs, and public ivrvngs. The former are an infringement
or privation of the private or civil rights belonging to indivir
duals, confidered as individuals; and are thereupon frequently
termed civil injuries : the latter are a breach and violation of
public rights and duties, which afFel the whole community*
confidered as a community ; and are diftinguifhed by the
harfher appellation of crimes and mifdemefnors . To inveftigate
the firft of thefe fpecies of wrongs, with their legal remedies, ,
will be our employment In the prefent book ; and the other
fpecies will be refcrved till the next or concluding volume.
The more effectually to accomplifh the redrefs of private
injuries, courts of juftice are inftituted in every civilized fo-
ciety, in order to protet the weak from the infults of the
ftronger, by expounding and enforcing thofe laws, by which
rights are defined, and wrongs prohibited. This remedy is
therefore principally to be fought by application to thefe
L 3 3 courts of juftice i that is, by civil fuit or adion. For which
reafon our chief employment in this volume will be to con-
fider the redrefs of private wrongs, hy fuit or aHion in courts.
But as there are certain injuries of fuch a nature, that fome
of them furniJhand others require a more fpeedy remedy, thau
can
"../././../... ,1. .4,1 .//...l, .ll.,,eA>6,'o.^C(:,M//,s '/,/,/,.. Jha,,./.
Ch. I. Wrongs, 5
can be had In the ordinary forms of juftice, there is allowed
in thofe cafes an extrajudicial or eccentrical kind of remedy;
of which I {hall firft of all treat, before I confider the fcveral
remedies by fuit : and, to that end, fhall diftribute the re-
drefs of private wrongs into three feveral fpecies : firft, that
which is obtained by the mere aB of the parties themfelves ;
fecondly, that which is efFedled by the mere aB and operation
of laiu ; and, thirdly, that which arifes irom fuit or aBion In
courts, which confifts in a conjunlion of the other two, the
a<St of the parties co-operating with the al of law.
And, firft, of that redrefs of private injuries, which is ob-
tained by the mere al: of the parties. This is of two forts
firft, that which arifes from the at of the injured party only;
and, fecondly, that which arifes from the joint a6l of all the
parties together : both which I ihall confider in their order.
Of the firft fort, or that which arifes from the fole al of
the injured party, is,
I. The defence of one's felf, or the mutual and reciprocal
defence of fuch as ftand in the relations of huftjand and wife,
parent and child, mafter and fervant. In thefe cafes, if the
party himfelf, or any of thefe his relations, be forcibly at-
tacked in his perfon or property, it is lawful for him to repel
force by force ( i ) ; and the breach of the peace, which hap-
pens, is chargeable upon him only who began the affray '',
For the law, in this cafe, refpe6ls the paffions of the human
mind ; and (w)ien external violence is offered to a man him-
felf, or thofe to whom he bears a near connexion) makes it
lawful in him to do himfelf that immediate juftice, to which
he is prompted by nature, and which no prudential motives [ 4 J
are ftrong enough to reftrain. It confiders, that the future
procefs of law is by no means an adequate remedy for injuries
< 2 Roll. Abr. 546. X Hawk. P. C. 131.
(i) It 18 faid, that the defence of his fervant is not a fufRcient
juftification in an a^lion brought againft the mafter, for he may
maintain an aflion for the lofs of the fervice of bis fervant.
#j/i.407.
B 2 accompanied
4 Private Book III.
accompanied with force ; fince it is impofiible to fay, to what
wanton lengths of rapine or cruelty outrages of this fort might
be carried, unlcfs it were permitted a man immediately to
oppofe one vioknci with another. Self-defence therefore,
as it is juftly called the primary law of nature, fo it is not,
neither can it be in fa6l, taken away by the law of fociety.
In the Englifh law particularly it is held an excufe for
breaches of the peace, nay even for homicide itfelf : but care
mud be taken, that the refiflance does not exceed the bounds
of mere defence and prevention ; for then the defender would
himfelf become an aggrelTor.
II. Recaption or reprifal is another fpecies of remedy by
the mere al: of the party injured. This happens, when any
one hath deprived another of his property in goods or chattels
perfonal, or wrongfully detains one's wife, child, or fer-
vant : in which cafe the owner of the goods, and the huf-
band, parent, or mafter, may lawfully claim and retake them,
wherever he happens to find them 5 fo it be not in a riotous
manner, or attended with a breach of the peace '. The rea-
fon for this is obvious ; fince it may frequently happen that
the owner may have this only opportunity of doing himfelf
juflice : his goods may be afterwards conveyed away or de-
flroyed ; and his wife, children, or fervants, concealed or
carried out of his reach j if he had no fpeedier remedy than
the ordinary prccefs of law. If therefore he can fo contrive
it as to gain pofTeflion of his property again, without force or
terror, the law favours and will juftify his proceeding. But,
as the public peace is a fuperior confideration to any one
man's private property ; and as, if individuals were once al-
lowed to ufe private force as a remedy for private injuries, all
fecial juftice muft ceafe, the ftrong would give law to the
weak, and every man would revert to a (late of nature ; for
thefe reafons it is provided, that this natural right of recap-
C 5 3 tion fliall never be exerted, where fuch exertion muft occafion
flrife and bodily contention, or endanger the peace of fociety.
If, for inftance, i;ny horfe is taken away, and I find him in
a common, a fair, or public inn, I may lawfully feife him
3 Inft. 134. Hal. Anal. 46.
to
Ch. I. Wrongs. 4
to my own ufc : but I cannot juftify breaking open a private
ftable, or entering on the jjrounds of a third perfon, to take
him, except he be felonioully ftolen^j but mult have recourfe
to an adlion at law.
III. As recaption is a remedy given to the party himfelf,
for an injury to h\s per/on al property, fo, thirdly, a remedy of
the fame kind for injuries to real property, is by entry on lands
and tenements, when another perfon without any right has
taken pofleffion thereof. This depends in fome meafure on
like reafons with the former ; and, like that too, muft be
peaceable and without force. There is fome nicety required
to define and diftinguifh the cafes, in which fuch entry is
lav/ful or otherwife: it will therefore be more fully confidered
in a fubfequent chapter ; being only mentioned in this place
for the fake of regularity and order,
IV. A FOURTH fpecies of remedy by the mere aft of the
party injured, is the abatement^ or removal, of nufjttces.
What nufances are, and their feveral fpecies, we fliall find
a more proper place to inquire under fome of the fubfequent
divifions. At prefent I fliall only obferve, that whatfoevcr
imlawfully annoys or doth damage to another is a nufance j
and fuch nufance may be abated, that is, taken away or re-
moved, by the party aggrieved thereby, fo as he commits no
riot in the doing of it 2. If a houfe or wall is erel:ed fo near
to mine that it flops my antient lights, wliich is a private
nufance, I may enter my neighbour's land, and peaceably
pull it down ^ Or if a new gate be erefted acrofs the pub-
lic highway, which is a common nufance, any of the king's
fubjefts paffing that way may cut it down, and deltroy it'.
And the reafon why the law allows this private and fummary f 6 1
method of doing one's felf juflice, is becaufe injuries of this
kind, which obftrudl or annoy fuch things as are of daily con-
venience and ufe, require an immediate remedy ; and cannot
wait for the flow progrefs of the ordinary forms of juflice.
f z Roll. Rep. 55, 56. o8. a Roil. " Salk. 459.
Abr. 565, 566. ' Cro. Car, J84.
^ Rep. loi. 9 Rep. 55.
B 3 V. A
5 Private Book III.
V. A FIFTH cafe, In which the law allows a man to be his
own avenger, or to minifter redrefs to himfclf, is that of dif-
treining cattle or goods for nonpayment of rent, or other
duties J or, diftreining another's cattle damage- feafant^ that
is, doing damage, or trefpafTing, upon his land. The for-
mer intended for the benefit of landlords, to prevent tenants
from fecreting or withdrawing their efFets to his prejudice ;
the latter arifing from the neceffity of the thing itfelf, as it
might otherwife be impoflible at a future time to afcertain,
whofe cattle they were that committed the trefpafs or damage*
As the law of dlftrefles Is a point of great ufe and confe-
quence, I (hall confider it with fome minutenefs : ^by in-
quiring, firll, for what injuries a diftrefs may be tal^en j
fecondly, what things may be diftreined ; and, thirdly, the
manner of taking, difpofing of, and avoiding dlftrefles.
I. And, firft, it Isneceflaryto premife, that a diftrefa ',
dtflriBloy is the taking of a perfonal chattel out of the pof-
feffion of the wrongdoer into the cuftody of the party injured,
to procure a fatisfaftion for the wrong committed, i. The
moft ufual injury, for which a diftrefs may be taken, is that
of nonpayment of rent. It was obferved in a former volume ^^
that dlftrefles were incident by the common law to every retit-
ferviccy and by particular refervation to rent- charges alfo ;
but not to rent-fechy till the ftatute 4 Geo. II. c. 28. ex-
tended the fame remedy to all rents alike, and thereby in
eflet aboliflied all material diftinlionbetween them (2). So
that now we may lay it down as an univerfal principle,
7 3 that a diftrefs may be taken for any kind of rent in arrear;
the detaining whereof beyond the day of payment is an in-
jury to him that is entitled to receive it. 2. For neglefting
to do fuit to the lord's court', or other certain perfonal
fervice", the lord may diftrein, of common right. 3. For
i The thing itfelf taken by this pro- * Book II. ch 3.
ccfs,. as well as the procefs itfelf, is incur ' 'Rvo.'Abr. tit.dijlrejs.i^.
law>books very frequentlycalled a diftrefs. "' Co. Litt. 46.
(2) See 2 vol. page 42.
. 9 amercements
Ch. I. Wrongs. 6
amercements in a court-leet a dlftrefs may be had of common
right; but not for amercements in a court-baron, without a
fpecial prefcription to warrant it ". 4. Another injury, for
which diftrefles may be taken, is where a man finds beads of
a ftranger wandering in his grounds, damage feafmit ; that is>
doing him hurt or damage, by treading down his grafs, or
the nice ; in which cafe the owner of the foil may diftrein
them, till fctisfalion be made him for the injury he has
thereby fubftained. 5. Laftly, for feveral duties and penalties
infliled by fpecial ats of parliament, (as for afleflments
made by commiffioners of fewers ", or for the relief of the
poor ,) remedy by diftrefs and fale is given; for the particu-
lars of which we muft have recourfe to the ftatutes them-
felves : remarking only that fuch diftrefles 1 are partly ana-
logous to the antient diftrefs at common law, as being reple-
viable and the like ; but more refembling the common law
procefs of execution, by feifing and felling the goods of the
debtor under a writ of fieri factasy of which hereafter.
2. Secondly; as to the things which may be diftreined,
or taken in diftrefs, we may lay it down as a general rule,
that all chattels perfonal are liable to be diftreined, unlefs
particularly protefted or exempted. Inftead therefore of men-
tioning what things are diftreinable, it will be eafier to re-
count thofe which are not fo, with the reafon of their parti-
cular exemptions \ And, i. As every thing which is
diftreined is prefumed to be the property of the wrongdoer,
it will follow that fuch things wherein no man can have an
abfolute and valuable property (as dogs, cats, rabbits, and
all 7iVL\m7\% ferae natural') cannot be diftreined. Yet if deer [ S J
(which ^xt ferae naturae) are kept in a private inclofure for
the purpofeof fale or profit, this fo far changes their nature,
by reducing them to a kind of ftock or merchandize, that they
may be diftreined for rent '. 2. Whatever is in the perfonal
ufe or occupation of any man, is for the time privileged and
" Brownl. 36. * 4 Burr. jSg.-
" Sut. 7 Ann. CIO. " Co. Lite. 47.
f Sue 43 Eli*, c. . Davh V. PovitlC.B.ffH. iiGeo.II.
B 4 prote^ed
8 Private Book III.
proteled from any diftrefs ; as an ax with which a man is
cutting wood, or a horfe while a man is riding him. But
horfes, drawing a cart, may (cart and all) be diflreined for
rent-ariere ; and alfo if a horfe, though a man be riding him,
be taken damage-feafaut^ or trefpafling in another's grounds,
the hoife (notwithftanding his rider) may be diftreined and
led away to the pound ' (3). 3. Valuable things in the way
of trade ihall not be liable to diftrefs. As a horfe {landing in
a fmith's (hop to be ft:oed, or in a com;-non inn ; or cloth at
a taylor's houfe ; or corn fent to a mill or a market. For all
thefe are protecled and privileged for the benefit of trade ;
and are fuppofed in common prefumption not to belong to
the owner of the houfe, but to his cuRomers. But, gene-
rally fpeaking, whatever goods and chattels the landlord finds
upon the premifes, whether they in facl belong to the tenant
Or a flranger, are diftreinable by him for rent : for otherwife
a door would be open to infinite frauds upon the landlord;
and the flranger has his remedy over by alion on the cafe
againfl the tenant, if by the tenant's default the chattels are
diftreined, fo that he cannot render them when called upon.
With regard to a Granger's beafts which are found on the
tenant's land, the following diflinlions are however taken.
If they are put in by confent of the owner of the beafts, they
are diftreinable immediately afterwards for rent arrere by the
landlord " (4). So alfo if the ftranger's cattle break the fences,
' I Sid. 440. " Cro. Eliz. 549.
( 3 ) The contrary has lately been determined by the court of
King's Bench, wz. that a horfe cannot be diftrained damage-
feafa'it whilft any perfon is riding him, for it would perpetually
Ic id to a breach of the peace. 6T. R. 1 3?^.
(4) As if horfes or cattle are fent to agift, they may be imme-
di.itely diftrained by the landlord for rent in arrear, and the owner
muft feek his remedy by action againft the farmer : the principle
o'" this law extends to public hvery ftables, to which, if horfes and
carriages are fent to ftand, it is determined that they are diftrain-
able by the landlord, as if ihey were upon any other farm.
3 Burr. 1498.
12 and
Ch. I. Wrongs. 8
and commit a trefpafs by coming on the land, tliey are dif-
treinable immediately by the leflbr for his tenant's rent, as a
punifhment to the owner of the beads for the wrong com-
mitted through his negligence ". But if the lands were not
fuuiciently fenced fo as to keep out cattle, the landlord can- C 9 ]
not diftrein them, till they have been levant and couchant
(levantes et cubatites) on the land ; that is, have been long
enough there to have laid down and rofe up to feed ; which
in general is held to be one night at leaft : and then the law
prefumes, that the owner may have notice whether his cattle
have (Irayed, and it is his own negligence not to have taken
them away. Yet, if the leflbr or his tenant were bound to
repair the fences and did not, and thereby the cattle efcaped
into their grounds without the negligence or default of the
owner ; in this cafe, though the cattle may have been levant
and couchant^ yet they are not diftreinable for rent, till actual
notice is given to the owner that they are there, and he
negledls to remove them "" : for the law will not fuffer the
landlord to take advantage of his own or his tenant's wrong.
4. There are alfo other things privileged by the antient com-
mon law ; as a man's tools and utenfils of his trade : the ax
of a carpenter, the books of a fcholar, and the like; which
are faid to be privileged for the fake of the public, becaufe
the taking them away would difable the owner from fcrving
the commonwealth in his ftation ( 5 ). So, beafts of the plough,
averia carucae, and (beep, are privileged from diflreflls at
Co. Litt. 47. * Lutw. 1 580.
(5) But utenfils and implements of trade maybe dlflralned
where they are not in alual ufe, and where there is not fufilcicnt
property befides upon the premifes to fatisfy the demand of the
landlord. 4 T. R. 565. The reafon for the proteflion of the
implements of trade feems to be flrongly exprefled in the Jewifli
law; ** No man fhall take the nether or the upper mill-Hone to
** pledge ; for he taketh a man's life to pledge." Deut. c. 24. v. 6.
And perhaps in allufion to this the Jew in Shakefpeare is made to
declare, " You take my life, when you do take the means whereby
*' 1 live.'*
^m- common
5 Private Book III.
common law * ; while dead goods, or other fort of beads,
which Bralon calls catalla othfa^ may be diftreined. But,
as beads of the plough may be taken in execution for debt,
fo they may be for didrefles by datute, which partake of the
nature of executions ^. And perhaps the true reafon, why
thefe and the tools of a man's trade were privileged at the
common law, was becaufe the diftrefs was then merely in-
tended to compel the payment of the rent, and not as a fd-
tisfaflion for its non-payment ; and therefore, to deprive the
party of the indruments and means of paying it, would
counterail: the very end of the didrefS ^ 5. Nothing fliall
be dldreined for rent, which may not be rendered again in
as good plight as when it was didreined : for which reafon
10 ] milk, fruit, and the like, cannot be didreined ; a didrefs at
common law being only in the nature of a pledge or fecurity,
to be redored in the fame plight when the debt is paid. So,
antiently, (heaves or fliocks of corn could not be didreined,
becaufe fome damage mud needs accrue in their removal:
but a cart loaded with corn might ; as that could be fafely
redored. But now by datute 2 W. & M. c. 5. corn in
fheaves or cocks, or loofe in the draw, or hay in barns or
ricks, or otherwife, may be didreined as well as other chat-
tels. 6. Ladly, things fixed to the freehold may not be
didreined -, as caldrons, windows, doors, and chimney-
pieces: for they favour of the realty. For this reafon alfo
corn growing could not be didreined ; till the datute
II Geo. II. c. 19. empowered landlords to didrein cornj
grafs, or other produ6ls of the earth, and to cut and gather
them when ripe.
Let us next confider, thirdly, how didrefles may be
taken, difpofed of, or avoided. And, fird, I mud premife,
that the law of didrefles is greatly altered within a few years
lad pad. Formerly they were looked upon in no other light
than as a mere pledge or fecurity, for payment of rent or
other duties, or fatisfadlion for damage done. And fo the
'f Stat. 51 Hen. III. ft. ^^Jijliic- ' 4 Burr. 589.
t'ltnt ftaccaiii. * liiJ. 388,
Ch. I. Wrongs. i6
law ftill continues with regard to diftrefTes of beafls taken
damage-feafanti and for other caufes, not ahered by a^ of
parUament ; over which the diftreinor has no other power
than to retain them till fatisfadlion is made. But diftrefles
for rent-arrere being found by the legiflature to be the {horteft
and moll effeiSlual method of compelling the payment of fuch
rent, many beneficial laws for this purpofe have been made
in the prefent century ; which have much altered the com-
mon law, as laid down in our antient writers.
In pointing out therefore the methods of dlftreining, I
fliall in general fuppofe the diftrefs to be made for rent ;
and remark, where neceflary, the differences between fuch
diftrefs, and one taken for other caufes.
In the firft place then, all diftrefles muft be made by day^ \ It \
unlefs in the cafe of damage feafant ; an exception being there
allowed, left the beafts fhould efcape before they are taken ",
And, when a perfon intends to make a diftrefs, he muft, by
himfelf, or his bailiff, enter on the demifed premifes ; for-
merly during the continuance of the leafe, but now *, if the
tenant holds over, the landlord may diftrein within fix months
after the determination of the leafe ; provided his own title or
intereft, as well as the tenant's pofTeffion, continue at the
time of the diftrefs. If thelefTor does not find fufficient diftrefs
on the premifes, formerly he could refort no where elfe ; and
therefore tenants, who were knavifli, made a praftice to con-
vey away their goods and ftock fraudulently from the houfe
or lands demifed, in order to cheat their landlords. But now c
the landlord may diftrein any goods of his tenant, carried off
the premifes clandeftinely, wherever he finds them within
thirty days after, unlefs they have been bona fide fold for a
valuable confideratlon : and all perfons privy to, or afTifting
in, fuch fraudulent conveyance, forfeit double the value to
. the landlord (6). The landlord may alfo diftrein the beafts of
* Co. L!tt. 14.2. c Stat. 8ADn.c.i4.iiGeo.II.c.i9.
^ Stat. 8 Ann. c. 14.
(6) And by the fame flatute, then Geo. IT. c.19. If any tenant
{hall fraudulently remove his goods and chattels in order to depnve
the
ii Private Book III.
his tenant, feeding upon any commons or waftes, appendant
or appurtenant to the demifcd premifes. The landlord might
not formerly break open a houfe, to make a diftrefs, for that
is a breach of the peace. But when he was in the houfe it was
held that be might break open an inner door ** : and now ' he
may, by the affiftance of the peace-officer of the pariih, break
open in the day-time any place, whither the goods have been
fraudulently removed and locked up to prevent a diflrefs ; oath
being firfl; made, in cafe it be a dwelHng-houfe, of areafon-
able ground to fufpel that fuch goods are concealed therein.
Where a man is entitled to diftrein for an entire duty, he
ought to diftrein for the whole at once j and not for part at
one time, and part at another ^ Bat if he diftreins for the
whole, and there is not fufficient on the premifes, or he hap-
12 3 pens to miftake in the value of the thing diftreined, and fo
takes an infufficient diftrefs, he may take a fecond diftrefs to
complete his remedy ^.
Distresses muft be proportioned to the thing diftreined
for. By theftatute of Marlbridge, 52Hen.IIL c. 4. if any man
t.tfces a great or unreafonable diftrefs, for rent-arrere, he ftiall
be heavily amerced for the fame. As if ^ the landlord diftreins
two oxen for twelvepence rent ; the taking oiboth is an unrea-
fonable diftrefs; but, if there were no other diftrefs nearer the
alue to be found, he might reafonably have diftreined one of
them ; but for homage, fealty, or fuit and fervice, as alfo
for parliamentary wages, it is faid that no diftrefs can be ex-
* Co. Litt. 161. Ccwnberb. 17. Cro. Eliz. 13. Stat. 17 Car.ll.c.7.
' Stat. II Geo. II. c. 19. 4 Burr. 590.
' z Lutw. 1532. 'a laft. 107.
the landlord of the benefit of diftralning them, or If any perfon
affifts the tenant in fuch a fraudulent conveyance, they fhall re-
fpeftivcly forfeit double the value to the landlord to be recovered
by an adllon. But if the value of the goods fo removed Is lefs than
50/. then the double value may be recovered before two neigh-
bouring jufllces of the peace. See Burn. tit. D'l/lrefs.
ceflive.
Ch. I. Wrongs. il.
ceflive '. For as thefe diftrelTes cannot be fold, the owner,
upon making fatisfadlion, may have his chattels again. The
remedy for exceffive diftrefles is by a fpecial alion on the fta-
tute of Marlbridge ; for an aftion of trefpafs is not maintain-
able upon this account, it being no injury at the commoa
lawj.
When the diftrefs is thus taken, the next confideratlon is
the difpofal of it. For which purpofe the things diftreined
mufl in the firft place be carried to fome pound, and there
impounded by the taker. But, in their way thither, they
may be refcued by the owner, in cafe the diftrefs was taken,
without caufe, or contrary to law : as if no rent be due ; if
tliey were taken upon the highway, or the like; in thefe cafes
the tenant may lawfully make refcue ^. But if they be once ^
impounded, even though taken without any caufe, the owner
may not break the pound and take them out \ for they are
then in the cuftody of the law ^
A POUND (parcitSy which fignifies any inclofure) is either
pound-flw/"/, that is, open overhead ; or pound-ctfi;^r/, that
Is, clofe. By the ftatute i & 2 P. & M. c. 12. no diftrefs
f cattle can be driven out of the hundred where it is taken,
unlefs to a pound-overt within the fame (hire : and within C *3 3
three miles of the place where it was taken. This is for the
benefit of the tenants, that they may know where to find
and replevy the diftrefs. And by ftatute 1 1 Geo. II. c. 19,
which was made for the benefit of landlords, any perfon dif-
treining for rent may turn any part of the premifes, upon
which a diftrefs is taken, into a pound, pro hac vice, for fe-
curing of fuch diftrefs. If a live diftrefs, of animals, be
impounded in a common pound-overt, the owner muft take
notice of it at his peril ; but if in any fpecial pound-overt, fo
conftituted for this particular purpofe, the diftreinor muft
' "Bn.Abr t.aJfift.i<j\.prtroga:ivgij%. ^ Co. Litt. i6ei 161.
J I Ventr. 104. FlWgibb. 85. * liiJ./^j.
4), Srr, 590.
give
ij Private Book III.
give notice to the owner : and in both thefe cafes, the owner,
and not the diftreinor, is bound to provide the beafts with
food and neceffaries. But if they are put in a pound-covert,
as in a liable or the like, the landlord or diftreinor muft feed
and fuftain them"". A diftrefs of houfehold goods, or other
dead chattels, which are liable to be ftolen or damaged by
weather, ought to be impounded in a pound-covert, elfe the
diftreinor muft anfwer for the confequences.
When Impounded, the goods were formerly, as was be-
fore obferved, only in the nature of a pledge or fecurity to
compel the performance of fatisfadllon j and upon this ac-
count it hath been held ", that the diftreinor is not at liberry
to work or ufe a diftreined beaft. And thus the law ftill
continues with regard to beafts taken damage-feafant, and
diftrefles for fuit or fervices ; which muft remain im-
pounded, till the ow^ner makes fatisfaftion ; or contefts the
right of diftreining, by replevying the chattels. To replevy
{replegiarey that is to take back the pledge) is, when a per-
fon diftreined upon applies to the fheriff or his officers, and
has the diftrefs returned into his own pofleffion -, upon giving
good fecurity to try the right of taking it in a fuit at law,
and, if that be determined againft him, to return the cattle
or goods once more into the hands of the deftreinor. This
is called a replevin, of which more will be faid hereafter.
At prefent I (hall only obferve, that, as a diftrefs is at common
C 14 ] law only in nature of a fecurity for the rent or damages done,
a replevin anfwers the fame end to the diftreinor as the
diftrefs itfelf ; fmce the party replevying gives fecurity to
return the diftrefs, if the right be determined againft him.
This kind of diftrefs, though it puts the owner to incon-
venience, and is therefore a punifhment to him, yet, if he
continues obftinate and will make no fatisfaftion or payment,
it Is no remedy at all to the diftreinor. But for a debt due
to the crown, unlefs paid within forty days, the diftrefs was
"Co. Litt. 47. Cro. Jac. 148.
always
Ch. I. W k o N G s. 14
always faleable at the common law . And for an amerce-
ment impofed at a court-l,eet, the lord may alfo fell the dif-
trefsP; partly becaufe, being the kmg's court of record,
it's procefs partakes of the royal prerogative^ ; but princi-
pally becaufe it is in the nature of an execution to levy a
legal debt. And, fo in the feveral ftatute-diftrefles, before
mentioned, which are alfo in the nature of executions, the
power of fale is likewife ufually given, to efFeftuate and
complete the remedy. And, in like manner, by feveral adls
of parliament , in all cafes of diftrefs for rent, if the tenant
or owner do not, within five days after the diftrefs is taken,
and notice of the caufe thereof given him, replevy the fame
with fufficient fecurity ; the diftreinor, with the (herifF or
conftable, (hall caufe the fame to be appraifed by two fworn
appraifers, and fell the fame towards fatisfadlion of the rent
and charges ; rendering the overplus, if any, to the owner
himfelf(7). And, by this means, a full and entire fatisfadlion
may now be had for rent in arrere, by the mere al of the
party himfelf, viz. by diftrefs, the remedy given at common
law ; and fale confequent thereon, which is added by adl of
parliament.
Before I quit this article, I muft obferve, that the many-
particulars which attend the taking of a diftrefs, ufed for-
merly to make it a hazardous kind of proceeding : for, if any
one irregularity was committed, it vitiated the whole, and [15 1
made the diftreinors trefpaflbrs ab initio *. But now by the
flatute 1 1 Geo. II. c. 19. it is provided, that, for any un-
lawful al done, the whole (hall not be unlawful, or the
parties trefpaflbrs ab initio : but that the party grieved fhall
Bro. ^br. t. dijirefi. 71. ' 2 W. & M. c. 5. 8 Ann. c. 14.
'2Rep.4j. 4 Geo. II. c. 28. 11 Geo. II. c. 19.
Bxo.Ihtd. 12 Mod. 330. I Ventr. 37,
(7) Of the days of taking and fale, one is inclufive, the othtr
cxclufive ; as if the goods are diltrained on the tirft, they may be
fold on the fixth. i H. Bh 14.
only
15 Private Book III.
only have an al:ion for the real damage fuflalned ; and not
even that, if tender of amends is made before any alion is
brought (8).
VI. The feifing of heriots, when due on the death of a
tenant, is alfo another fpecies of felf-remedy j not much un-
like that of taking cattle or goods in diftrefs. As for that
divifion of heriots, which is called heriot-fervice, and is only
3 fpecies of rent, the lord may diftrein for this, as well as
feife : but for heriot-cuftom (which fir Edward Coke fays %
lies only in prendevy and not in render) the lord may feife
the identical thing itfelf, but cannot diftrein any other chat-
tel for it ". The like fpeedy and eiFedlual remedy, of feifing,
js given with regard to many things that are faid to lie in
franchife j as waifs, wrecks, eftrays, deodands, and the like ;
all which the perfon entitled thereto may feife, without the
formal procefs of a fuit or alion. Not that they are debarred
of this remedy by a<lion j but have alfo the other and more
fpeedy one, for the better aflerting their property ; the thing
to be claimed being frequently of fuch a nature, as might
be out of the reach of the law before any aftion could be
brought.
These arc the feveral fpecies of remedies, which may be
had by the mere a6l of the party injured. 1 flaall, next, briefly
mention fuch as arife from the joint aft of all the parties to-
gether. And thefe are only two, accord, and arbitration.
' Cop. 25. " Cro. Eliz. 590. Cro. Car. 260.
( 8 ) The ftatute direfts that the aftion Ihall be an aftlon of trefpafs
or upon the cafe, and therefore an aftion of trover cannot be brought
to recover goods taken under an irregular diftrefs. i //. Bl. 13.
To an aftion under this ftatute, the defendant may plead the
general ifTue. But if a party pay money to redeem his goods from
a wrongful diftrefs for rent, he may afterwards maintain trover
againft the perfon who diftrained them. 6 T. R, 298.
L Accord
Ch. I. Wrongs. 15
i. Accord is a fatisfaftion agreed upon between the party
injuring and the party injured ; which, when performed, is a
bar of all adlions upon this account. As if a man contract
to build a houfe or deliver a horfe, and fail in it ; this is an [ 1^3
injury for v/hich the fufferer may have his remedy by action;
but if the party injured accepts a fum of money, or other
thing, as a facisfadlion, this is a redrefs of that injury, and
entirely takes away the a6lion ''. By feveral late ftatutes,
(particularly 1 1 Geo. II. c. 19. in cafe of irregularity in the
method of diftreining ; and 24 Geo. II. c. 24. in cafe of
miftakes committed by jufticcs of the peace,) even tender of
fulHcient amends to the party injured is a bar of all actions,
whether he thinks proper to accept fuch amends or no,
II. Arbitration is where the parties, injuring and in-
jured, fubmit all matters in difpute, concerning any perfonal
chattels or perfonal wrong, to the judgment of two or more
arbitrators ; who are to decide the controverfy : and if they .
do not agree, it is ufual to add, that another perfon be called
in as umpire^ {^hnperator or impar^,) to whofe fole judgment
it is then referred ; or frequently there is only one arbitrator
originally appointed. This decifion, in any of thefe cafes,
is called an award. And thereby the queftion is as fully de-
termined, and the right transferred or fettled, as it could
have been by the agreement of the parties or the judgment
of a court of juftice >'. But the right of real property cannot
thus pafs by a mere award ^ : which fubtilty in point of form
(for it is now reduced to nothing elfe) had it's rife from
fcodal principles ; for, if this had been permitted, the land '
might have been aliened coUufively without the confent of
the fuperior. Yet doubtlefs an arbitrator may now award 3
conveyance or a releafe of land ; and it will be a breach of
the arbitration-bond to refufe compliance. For, though ori-
ginally the fubmifilon to arbitration ufed to be by word, or
by deed, yet both of thefe being revocable in their nature, it
* 9 Rep. 79. y Brownl. 55. i Freem. 410.
" Whatt. y^tigl /jfr. i, 771. Ni. lR0li.Abr.241. iLordRayni.115.
chols Sc3t hift.iibr. ch. i. froptjintm.
Vol. III. ' C i5
i6 Private Book III.
IS now become the praftlce to enter into mutual bonds, with
condition to (land to the award or arbitration of the arbitrators
r in ] or umpire therein named *. And experience having fhewn
the great ufe of thefe peaceable and domeftic tribunals, efpe-
cially in fettling matters of account, and other mercantile
tranfa(^ions, which are difficult and almoft impoflibie to be
jldjufted on a trial at law; the legiQature has now eftabliftied
tlie ufe of them, as well in controverfies where caufes are de-
pending, as in thofe where no aQion is brought : enabling, by
ftatute Q & lo W. III. c. 15. that all merchants and others,
ti'ho defire to end any controverfy, fuit, or quarrel, (for
which there is no other remedy but by perfonal action or fuit
in equity,) may agree, that their fubmiflion of the fuit to ar-
bitration or umpirage fl)all be made a rule of any of the king's
courts of record, and may infert fuch agreement in their
fubmilTion, or promife, or condition of the arbitration-bond :
which agreement being proved upon oath by one of the wit-
nefl'es thereto, the court fliall make a rule that fuch fubmif-
flon and award fhall be conclufive : and, after fuch rule made,
the parties difobeying the award (hall be liable to be punifhed,
^s for a contempt of the court; unlefs fuch award (hall be fet
aiide, for corruption or other mifbehaviour in the arbitrators
or umpire, proved on oath to the court, within one term after
the award is made (9). And, in confequence of this ftatute, it
Append. No. III. . 6.
(9) A motion to fct afide an award under a fubmiffion by an
bligation, muft be made before the lall day of the next term after
the award is made, g iy 10 IV. III. c. 15./. 2. tT. R. 781.
But this does not extend to an award made in purfuance of an
order of n'lf pr'tus. Sir. 301. If a nx)tion be made to fet afide an
award un"der the ftatute, becaufe it has been procured by corruption
or undue means, or for any matter extrinfic the award, it muft be
made before the end of the next term ; but an application for an
attachment for not performing an award, n:ay be refifted at any
time for defedls appearing on the face of the award itfelf j for fuch
an award, after that time, might be pleaded in bar to any aftion
brought upon it. Pcdley v. Goddard, 7 T. R. 78.
Submiflion>
Ch. I. Wrongs. 17
is now become a confiderable part of the bufinefs of the fu-
perior courts, to fet afide fuch awards when partially or ille-
Submiflions to arbitration were entered into by a rule of the
court at the common law when a caufe was depending, and the
ftatute of king William was intended to give the fame efficacy to
awards where no fuit or aftion was inftituted. 2 Burr. 'joi. A
verbal agreement to abide by an award cannot be made a rule of
court. 'J T. R. 1.
Where a caufe is referred by an order of ni/i prius, and it li
agreed that the cofts fliall abide the event of the award, this figni-
fies the legal event ; and if the arbitrator awards fuch damages for
a trefpafs or an affault as would not, if given in a verdift, carry
cofts to the plaintiff, he cannot recover them under this reference,
the award in fuch inftances being not equivalent to the certificate
of a judge. 3 T. R. 138. But arbitrators may award cofts at
their difcretion, unlefs there is an exprefs provifion in the rule, that
the cofts (hall abide the event of the award. 2 T. R. 644. If it
is awarded that one of the parties (hall pay the cofts of the aftion,
the cofts of the award are not included. H. Bl. Rep. 323.
When arbitrators have the power of electing an umpire, they
may chufe him and call in his affiftance as foon as they begin to
take the fubje^l into confideration. And this is the more conve-
nient praftice, as it fecures a decifion upon a fingle inveftigation of
the controverfy. 2 T. R. 644. The agreement to a reference muft
be expreffed with great caution and accuracy, for if it is agreed
to refer all matters in dijference bettueen the parties in the caufe ; the
arbitrators are not confined to the fubjeft of the caufe alone, as
they are when it is agreed to refer all matters in difference in the
caufe bettueen the parties. 2 T. R. 645. Yet after an award under
a reference in the firft cafe, either party may maintain an adb'on
for a right or demand fubfifting at the time of the reference, but
not difputed or referred to the arbitrators. 4 T. R. 146.
The court will not grant an attachment againft a member of par-
liament for non-payment of money according to an awafd.
7 T. R. 448. If an arbitrator award that an adminiftrator, whp
has fubmittcd to the award, (hall pay a certain fum, he is pre-
cluded afterwards from objcding that he has no aflets to fatisfy the
demand. 7 T. R. 453. , , '
Courts of equity exercife a jurifdiaion in fetting afide awards,
particulady if a difcovcry or an account is prayed j but an arbl-
C 2 trator
17 Private Book III.
gaily made; or to enforce their execution, "when legal, by the
fame proccfs of contempt, as is awarded for difobedience to
thofe rules and orders which are ifflied by the courts them-
felves.
trator cannot be made a party, if it is agreed by the fubmiffiou
bond that no bill in equity fliall be filed againft him. 2 Atk. 395.
Wh^e it was one of the articles of co-partnerfhip that all differ-
ences fliould be referred to arbitration, it was decided, that a
court of equity could entertain no jurifdi6lion of the fubjedt until
the parties had referred their difputes to the confideration of arbi-
tratofs. ' i Bro. 336. But it has fince been determined that an
agreement or covenant to refer all differences to arbitration, and
not to file any bill in equity, or bring any atlion at law, cannot
take away the jurifdiftion of any court in Weftminfter Hall. But
an aftion might be brought for the breach of this covenant.
2 Vef.jun. iig. And where a fubmilfion to an award is made a
rule of court, and it is part of the rule that the parties fhall file
o bill in equity, it is in the difcretion of the court of law,
whether they will enforce that part of the rule by attachment or
not. II). ^^ I.
Arbitrations being unattended by the inevitable delay and expencc
of public litigation, are of fuch infinite importance to the commu-
nity, that it is rather furprizing that the legiflature has not yet
given to arbitrators a power of compelling the attendance of wit-
neffes, or of adminiftering an oath to them. For until they pof-
fefs this authority, like courts of juftice, however wife and righte-
ous their awards may be, it cannot be expefted that they can give
the fame fatisfadlion to thofe who are interefted in the event of the
controverfy, ,
Ch. 2. Wrongs. t%
CHAPTER THE SECON.
OF REDRESS BY THE MERE OPERATION
OF LAW.
'T'HE remedies for private wrongs, which are effected
by the mere operation of the law, will fall within a
very narrow compafs : there being only two inftances of this
fort that at prefent occur to my recollection ; the one that
of retainer^ where a creditor is made executor or admini-
ftrator to his debtor ; the other, in the cafe of what the law
calls a remitter.
I. If a perfon indebted to another makes his creditor or
debtee his executor, or if fuch creditor obtains letters of ad-
miniftration to his debtor; in thefe cafes the law gives him
a remedy for his debt, by allowing him to retain fo much as
will pay himfelf, before any other creditors whofe debts arc
of equal degree *. This is a remedy by the mere al: of law,
and grounded upon this reafon -, that the executor cannot,
without an apparent abfijrdity, commence a fuit againft him-
fdf as a reprefentative of the deceafed, to recover that which
is due to him in his own private capacity : but, having the
whole perfonal eftate in his hands, fo much as is fufficient
to anfwer his own demand is, by operation of law, applied
4o tliat particular purpofe. lfe, by being made executor,
^ 1 Roll. Abr. 922. Plowd. 543. See vol. IL page 511.
C 3 h
19 Private Book III.
he would be put in a worfe condition than all the reft of the
world befides. For, though a rateable payment of all the
debts of the deceafed, in equal degree, is clearly the moft
equitable method, yet as every fcheme for a proportionable
diftribution of the aflete among all the creditors hath been
hitherto found to be impracticable, and produdlive of more
mifchiefa than it would remedy j fo that the creditor who
firft commences his fuit is entitled to a preference in payment j
it follows, that as the executor can commence no fuit, he
mud be paid the laft of any, and of courfe muft lofe his debt,
in cafe the eftate of his teftator fhould prove infolvent, unlefs
he be allowed to retain it. The dolrine of retainer is there-
fore the neceflary confequence of that other dolrine of the
law, the priority of fuch creditor who firft commences hia
gftion. But the executor (hall not retain his own debt, in
prejudice to thofe of a higher degree ; for the law only puts
him in the fame fituation, as if he had fued himfelf as exe-
cutor, and recovered his debt v which he never could be
fuppofed to have done, while debts of a higher nature fub-
fifted. Neither fhall one executor be allowed to retain hia
own deht, in prejudice to that of his co-executor in equal
degree j but both (hall be difcharged in proportion ''. Nor
fliall an executor of his own wrong be in any cafe permitted!
to retain*,
II. Remitter is where he, who hath the true property
ox jus proprktatis in lands, but is out of pofleffion thereof and
hath no right to enter without recovering pofleffion in an
adion, hath afterwards the freehold caft upon him by fome
fubfequent, and of courfe defelive title : in this cafe he ii
remitted, or fent back, by operation of law, to his antient
and more certain title**. The right of entry, which he hath
gained by a h;id title, fliall be ipfo faSio annexed to his own
inherent good one ; and his defeafible eftate ftiall be utterly
tkfeatcd and annulled, by the inftantaneous zOl of law, with-
v^t his particips^tion or confcnt ". As if A diffeifes B, that
" Viner. Abr. (,,e.ti\uCcrs. D. 2. * Litt. 659.
" 5 Rep, 30. <= Co. Litt. 358. Cro. Jac.489.
is
Ch. 2. Wrongs. 20
is, turns him out of poffeflion, and dies leaving a fon C ;
hereby the ellate defcends to C the fon of A, and B is barred
from entering thereon till he proves his right in an a\ion :
now, if afterwards C the heir of the diffeifor makes aleafe
for life to D, with remainder to B the difleifee for life, a^*
D dies i hereby the remainder accrues to B, the difleifee :
who thus gaining a new freehold by virtue of the remainder,
which is a bad title, is by aft of law retiiltudy or in of his
former and furer eftatc ^ For he hath hereby gained a new
right of pofTeflion, to which the law immediately annexes hia
antient right of property.
If the fubfequent eftate, or right of poflefTion, be gaine4
by a man's own aft or confent, as by immediate purchafe
being of full age, he (hall not be remitted. For the taking
fuch fubfequent eftate was his own folly, and (hall be looked
upon as a waiver of his prior right ^. Therefore it is to be
obferved, that to every remitter there are regularly thefe in-
cidents ; an antient right, and a new defeafible eftate of free-
hold, uniting in one and the fame perfon ; which defeafible
eftate muft be ca/l upon the tenant, not gained by his own
aft or folly. The reafon given by Littleton'', why this
remedy, which operates filently and by the mere aft of law,
was allowed, is fomewhat fimilar to that given in the pre-*
ceding article ; becaufe otherwife he who hath right would
be deprived of all remedy. For as he himfelf is the perfon
in pofreflion of the freehold, there is no other perfon againft
whom he can bring an aftion, to eftablifli his prior right.
And for this caufe the law doth adjudge him in by remitter;
that is, in fuch plight as if he had lawfully recovered the
fame land by fuit. For, as lord Bacon obferves *, the be^
nignity of the law is fuch, as when, to preferve the princi-
ples and grounds of law, it depriveth a man of his remedy
without his own fault, it will rather put him in a better de-
gree and condition than in a worfe. Nam quod remedio dejii'
fuiturf ipfa re valety ft culpa ahjtt. But there Ihall be na
' Finch. L. 194. Litt. ^683. > 661.
4 Co, Liu. 348. 350. ^ l^lcjo. c. 9.
C 4 remluex
ai Private Book III.
remitter to a right, for which the party has no remedy by
adlion '' : as if the iflue in tail be barred by the fine or war-
ranty of his auceftor, and the freehold is afterwards cail upon
him i he fliall not be remitted to his eftate tail ' : for the
operation of the remitter is exactly the fame, after the union
of the two rights, as that of a real action would have been
before it. As therefore the iflue in tail could not by any
adlion have recovered his antient eftate, he fhall not recover
it by remitter.
And thus much for thefe extrajudicial remedies, as well
for real as perfonal injuries, which are furniflaed or permitted
by the law, where the parties are fo peculiarly circum-
ftanced, as not to make it eligible, or in fom6 cafes even pof^
fible, to apply for redrefs in the ufual and ordinary method$
to the courts of public juftice.
^ CO) Litt. 349. ' Moor. 115. i Aan<2S^
Ch. 3 Wrongs. aa
CHAPTER THE THIRD:
OF COURTS IN GENERAL.
nPHE next, and principal, objedl of our inquiries is the
redrefs of injuries by fuit in courts : wherein the al
of the parties and the a6t of law co-operate ; the al of the
parties being neceflary to fet the law in motion, and the
procefs of the law being in general the only inftrument by
which the parties are enabled to procure a certain and ade-
ijuate redrefs.
And here it will not be improper to obferve, that although,
in the feveral cafes of redrefs by the act of the parties men-
tioned in a former chapter ', the law allows an extrajudicial
remedy, yet that does not exclude the ordinary courfe of juf-
tice : but it is only an additional weapon put into the hands
of certain perfons in particular inftances, where natural
equity or the peculiar circumftances of their fituation re-
quired a more expeditious remedy, than the formal procefs
of any ^ourt of judicature can furnifli. Therefore, though
I may defend myfelf, or relations, from external violence, I
yet am afterwards entitled to an adtion of aflault and battery:
though I may retake my goods, if I have a fair and peaceable
opportunity, this power of recaption does not debar me from
my adion of trover or detinue : I may either enter on the
lands, on which I have a right of entry, or may demand
pofleffion by a real aftion : I may either abate a nufance by
my own authority, or call upon the law to do it for me : I
may diHrein for rent, or have an alion of debt, at my own
option ; If I do not diftrein my neighbour's cattle damage' [ 33 1
! ch. 1.
/earantf
55 Private Boofc III,
feafaniy I may compel him by a^ion of trefpafs to make me
a fair fatisfadlioji : if a heriot, or a deodand, be withheld
from me by fraud or force, I may recover it though I never
feifed it. And with regard to accords and arbitrations, thefe,
in their nature being merely an agreement or compromife,
mod indifputably fuppofe a previous right of obtaining re-
drefs fome other way, which is given up by fuch agreement.
But as to remedies by the mere operation of law, thofe are
indeed given, becaufe no remedy can be miniftred by fuit or
alion, without running into the palpable abfurdity of a
man's bringing an aftion againft himfblf: the two cafes
wherein they happen being fuch, wherein the only poflible
legal remedy would be directed againft. the very perfon him-*
ielf who feeks relief.
In all other cafes it is a general and Indifputable rule, thai
where there is a legal right, theye is alfo a legal remedy, by
fuit or afbion at law, whenever that right is invaded. And,
in treating of thefe remedies by fuit in courts, I {hall purfuc
the following method : firft, I fhall confider the nature and
feveral fpecies of courts of juftice : and, fecondly, I fhall
point out in which o thefe courts, and in what manner, the
proper remedy maybe had for any private injury; or, in
other words, what injuries are cognizable, aod how redrefied,
|b each refpedive fpecies of courts.
First then, of courts of juftice. And herein wc wiH
confider, firft, their nature and incidents in general ; and,^
then, the feveral fpecies of them^ creAed *nd acknowlege^
by the laws of England.
A COURT is defined to be a place wherein juftice is judi-
cially adminiftercd ''. And, as by our excellent copftitution
the fole executive power of the laws is vefl:ed in the perfon of
the king, it will follow that all courts of j^uftice, which are
24 ] \\y^ naedlum by which he adminifters the l^ws, gre derived
fr<W the power pf the crown ^ For whether created by ai.
> Co. Litt. 58. 5 See book I. tb. 7.
Ch. 3. Wrongs. 24
of parliament, or letters patent, or fubGfting by prcfcrip-
tion, (the only methods by which any court of judicature "*
can exift,) the king's confent in the two former is exprefsly,
and in the latter impliedly, given. In all thefe courts the
king is fuppofed in contemplation of law to be always pre-
fent ; but as that is in fal impoflible, he is there reprefented
by his judges, whofe power is only an emanation of ^h^
royal prerogative.
For the more fpeedy, unlverfal, and impartial adminU
(Irat^on of juftice between fubjel and fubje^, the law hath
appointed a prodigious variety of courts, fome with a more
limited, others with a more extenfive jurifdiflion; fome
conftituted to inquire only, others to hear .^nd determine :
fome to determine in tlie firft inftance, others upon appeal
and by way of review. All thefe in their turns will be taken
notice of in their refpelive places : and I (hall therefore here
only mention one diftlndtion, that runs throughout them all;
viz. that fome of them are courts of record^ others noi of re^
cord. A court of record is that where the afts and judicial
proceedings are enrolled in parchment for a perpetual memo-
rial and teftimony : which rolls are galled the records of the
court, and are of fuch high and fupereminent authority, that
their truth is not to be called in queftion. For it is a fettled
rule and maxim that nothing (hall be averred againft a record^
nor (hall any plea, or even proof, be admitted to the con
trary '. And if the cxiftence of a record be denied, it (hall
be tried by nothing but itfelf ; that is, upon bare infpeflioa
whether there be any fuch record or no j elfe there would be
po end of difputes. But, if there appear any miftake of the
clerk in making up fuch record, the court will direft him to
amend it. AH courts of record are the king's courts, in right
of his crown and royal dignity ^, and therefore no other court
hath authority to fine or imprifon ; fo that the very erection
of a new jurifdidtion with power of fine or imprifonment [ 2? T
makes it inftantly a court of record s. A court not of record
* Co. Litt.^60. ' Finch. L. 231.
* UU, Salk. SCO. i Mod. 388.
A is
45 Private Book III.
isthe court of a private man ; whom the law will not intrufi:
with any difcretionary power over the fortune or liberty of his
fetlow-fubjedts. Such are the courts baron incident to every
manor, and other inferior jurifdiclions : where the proceed-
ings are not enrolled or recorded j but as well their cxiftence
as the truth of the matters therein contained fhall, if difputed,
be tried and determined by a jury. Thefe courts can hold no
plea of matters cognizable by the common law, unlefs under
the value of 40/. nor of any forcible injury whatfoever, not
having any procefs to arrefl the perfon of the defendant ^
In every court there mufl be lead three conllituent
parts, the aBor, retiSy zx\^ judex : the aclor, or plaintiff, who
complains of an injury done ; the reus^ or defendant, who is
called upon to make fatisfaclion for it ; and the jiidexy or
judicial power, which is to examine the truth of the facl, to
determine the lawarifmg upon that fa6t, and, if any injury
appears to have been done, to afcertain and by it's officers to
apply the remedy. It is alfo ufual in the fuperior courts to
have attorneys, and advocates or counfel,. as affiftants.
An attorney at law anfwers to the procurator^ or prolor,
of the civilians and canonifls *. And he is one who is put in
the place, ftead, or turn of another, to manage his matters
of la>v. Formerly every fuitor was obliged to appear in per-
fon, to profecute or defend liis fuit, (according to the old
Gothic conflitution'',) unlefs by fpecial licence under the
ling's letters patent '. This is ftili the law in criminal cafes.
And an idiot cannot to this day appear by attorney, but \\\
perfon'^; for he hath not difcretion to enable him to appoint
a proper fubftitute : and upon his being brought before the
2(S 3 court in fo defencelefs a condition, the judges are bound to
take care of his interefts, and they fliall admit the bell plea
in his behalf that any one prefent can fugged ". But, as in
* 2 Inft. 3Jt. * Stiernhook dejur.Cotb. I. i. f . 6
' Pope Boniface VIII. in 6 Decretal. ' f . N". B. 25.
/. 3. t, 16. 3. r^ieaJis of ' prccurato- " Jlid. 27.
*' rilus,^uti/t a.': fuiius ff I ijiai toimii " Bxq. jitr, t, iditl. x.
13 thr
\
Ch. 3. Wrongs* 06
the Roman law *' cum olim in ufu fuljfdi alterlus nomine agi
** non po/fe, fed, quia hoc non minimam incommoditatem hahehat^
coeperunt homines per procuratores litigare"" fo with us, upon
the fame principle of convenience, it is now permitted in ge-
neral, by divers antient ftatutes, whereof the firfl is ftatute
Weftm. 2. c. 10. that attorneys maybe made to profecute or
defend any action in the abfence of the parties to the fuit.
Thefe attorneys are now formed into a regular corps ; they
are admitted to the execution of their office by the fuperfor
courts of Weftminflier-hall ; and are in all points officers o
tlie refpedlive courts in which they are admitted : and, as
they have many privileges on account of their attendance
there, fo they are peculiarly fubjedt to the cenfure and ani-
madverfion of the judges. No man can pradlife as an at-
torney in any of thofe courts, but fuch as is admitted and
fworn an attorney of that particular court : an attornejf of
the court of king's bench cannot pralice in the court of
common pleas ; nor vice verfa. To practice in the court of
chancery it is alfo neceffhry to be admitted a folicitor therein;
and by the ftatute 22 Geo. II. c. 46. no perfon fliall a6l as
an attorney at the court of quarter feffions, but fuch as has
been regularly admitted in fome fuperior court of record. So
early as the ftatute 4 Hen. IV. c. 18^ it was enabled, that
attorneys ftiould be examined by the judges, and none ad-
mitted but fuch as were virtuous, learned, and fworn to do
their duty. And many fubfequent ftatutes p have" laid them
under farther regulations (i).
Jnji, 4. tit. 10. 2 Geo. II. c. t%, za Geo. II. c. 46.
f 3 Jac. 1. c. 7. 12 Geo. I. c. 29. 23 Geo. II. c. 26.
( I ) The number of attomeys has much increafed within the laft
three centuries; for an al of parliament pafled in the 33 Hen. VI.
c. 7. dates, that not long before that time there had not beeij
more than fix or eight attorneys in Norfolk and Suffolk, quo tern"
pore (it obfcrves) magna tranquillitas regtiabaty but that the num-
ber had increafed to twenty-four, to the great vexation and pre-
judice of thefe counties; it therefore enafts that for the future
there (hall only be fix attorneys in Norfolk, fix in Suffolk, and
two in the city of Norwich. As it does not appear that this fta-
tute was aver repealed, it might be curious to inquire how it was
originally
fl6 Private Book III.
Of advocates, or (as we generally call them) counfel,
there are two fpecies or degrees ; barrifters, and ferjeants.
The former are admitted after a confiderable period of ftudy,
or at lead Handing, in the inns of court*J; and are in our old
C 27 ] books ftiled apprentices, apprenticii ad legem, being looked
upon as merely learners, and not qualified to execute the full
office of an advocate till they were fixteen years Handing; at
which time, according to Fortefcue% they might be called
to the flate and degree of ferjeants, or fervientes ad legem.
How antient and honourable this ftate and degree is, with the
form, fplendor, and profits attending it, hath been fo fully
difplayed by many learned writers % that it need not be
here enlarged on (2). I fliall only obferve, that ferjeants at
law are bound by a folemn oath ' to do their duty to their
clients : and that by cuilom " the judges of the courts of
Weftminftcr are always admitted into this venerable order,
before they are advanced to the bench ; the original of which
was probably to qualify the />//////^ barons of the exchequer to
become juftices of affife according to the exigence of the fta-
1 See Vol. I. introd. i. printed in i 76 5, entitled, * obfcrvations
' de LL. c 50. " touching ihi antiquity and dignity of
* Fortefc. ibid. 10 Rep pref. Dug- " the degree of ferjcant at law."
dal. Ong. jfuriJ. To which may be ' z Inft. 214.
added a tfa^it by the late ferjeant Wynne, " Fortefc. f. 50.
originally evaded. The 2 Geo. II. c. 23. requires that every
perfon admitted an attorney fliall have been bound to ferve as a
clerk to an attorney for five years, and ftiall have continued in
fuch fervice for five years ; and the court of King's Bench thought
themfelves bound to ftrike an attorney off the roll of attorneys of
that court, vi'ho had ferved part of the time with another mafter,
but with the confent of the firft. 7 T. R. 456. But a bill is now
pending in parliament to give relief in fuch cafes in future.
For regulations refpedting attorneys, fee Burttt tit. Attorney.
(2) The influence and authority which advocates ufually ac-
quire in popular ftatcs, is elegantly defcribed by Giannone :
E'aggiuogea, che colore, che fapevan ben aiingare, avean un
gran vantaggio nell' affemblee del popolo, il quale fi mena volon-
tieri per I'orecchie ; onde avviene che nello ftato popolare gli
avvocati funo ordinariamente quegli, chi hanno piu potenza, ed
autorita. Lib. II. c. 6.
tute
Ch. 3 Wrong s. 47
tute of 1 4 Edw. III. c. 1 6. From both thefe degrees fome arc
ufually feleded to be his majefty's counfel learned in the law }
the two principal of whom are called his attorney, and foli-
cltor, general. The firft king's counfel, under the degree
of ferjeant, was fir Francis Bacon, who was made fo honoris
taufay without either patent or fee "" ; fo that the firft of th
modern order (who are now the fworn fervants of the crown,
with a ftanding falary) feems to have been fir Francis North,
afterwards lord keeper of the great feal to king Charles II *.
Thefe king's counfel anfwer in fome meafure to the advo-
cates of the revenue, advocati fifci^ among the Romans. For
they muft not be employed in any caufe againft the crown
without fpecial licence (3) ; in which reftriclion they agree
with the advocates of the fifc^ : but in the imperial law the
prohibition was carried ftill farther, and perhaps was more for
the dignity of the fovereign ; for, excepting fome peculiar
caufes, the fifcal advocates were not permitied to be at all con-
cerned in private fuits between fubjeft and fubjedl^. A cuftom [ 28 1
has of late years prevailed of granting letters patent of preced-
ence to fuch barriftcrs, as the crown thinks proper to honour
with that mark of diftinlion : whereby they are entitled to
fuch rank and pre-audience * as are afligned in their refpec-
tive patents : fometimes next after the king's attorney gene-
ral, but ufually next after his majefty's counfel then being.
* See his letters. 256. 4. The king's attorney general.
* See hij life by Roger North. 37. 5. The king's folicitor general.
' Cod.i, 9. I. 6. The king's ferjeants.
^ Wid. I, 7. 13. 7, The king's counfel, with the
Pre-audience in the courts it rtc- queen's attorney and folicitor*
Jtoned of fo much confequcnce, that it 8. Serjeants at law.
may not be amifs to fubjoin a fliort table 9. The recorder of London,
ftf the precedence which ufually Obtains lO. Advocates of the civil law.
smong the praftifers. 11. Barriftera.
1, The king's premier ferjeant (fo In thecourtof exchequer twoofthemoA
conllituted by fpecial patent). experienced barrifters, called the fofi.
%. The king's antlent ferjeant, or man and the tub-rmn (from the places
the eldeft among the king's fer- in which they fit) have alfo a precedence
jeants. in motions.
3. The king's advocate general.
(3) Hence none of the king's counfel can publicly plead In
court for a prifoner, or a defendant in a criminal prokcution,
without a licence, which is never refufed ; but an expence of
about 9 /. muft be incurred in obtaining it,
Thefe
aS P R I V A T I Book III.
Thefe (as well as the queen's attorney and follcitor general '')
rank promifcuoufly with the king's counfel, and together
with them fit within the bar of the refpelive courts ; but
receive no falaries, and are not fworn j and therefore are at
liberty to be retained in caufes againft the crown. And all
other ferjeants and barrifters indifcriminately (except in the
court of common pleas, where only ferjeants are admitted)
may take upon them the proteflion and defence of any fuitors,
whether plaintiff or defendant : who are therefore called their
clients^ like the dependants upon the antient Roman orators.
Thofe indeed pradifed gratis, for honour merely, or at moft
for the fake of gaining influence : and fo likewife it is efta-
blilhed with us "^j that a counfel can maintain no ation for
his fees (4) ; which are given, not as locatio vel conduBio^ but as
qiiiddam honorarium ; not as a falary or hire, but as a mere
gratuity, which a counfellor cannot demand without doing
wrong to his reputation * : as is alfo laid down with regard
to advocates in the civil lav,' *, whofe hcnomrium was diredted^
by a decree of the fenate not to exceed in any cafe ten thoufand
r 29 ] feflerces, orabout 80/. of Englifli money*^ (5). And, inorder
t Seid. tit. hon. I. 6. 7. ' f/". 11. 61.
Davis pref. 22. 1 Ch. Rep. 38. ^ Tac. arm. L ti.
*" Davis. 23.
(4) Upon the fame principle a phyfician cannot maintain an
aclion for his fees. 4 T. i?. 317.
(5) The circumftances v.'hich led to this decree, as recorded by
Tacitus, deferve to be mentioned. Samius, a Roman knight of
diftindlion, having given Suilius a fee of three thoufand guineas to
undertake his defence, and finding that he was betrayed by his ad-
vocate, ferro in domo ejus incubuit. In confequence of this the
fenate infifted upon enforcing the Cincian law, qua cavetur anti-
quit us ^ nequis ob caufam orandam pecuniam donumve accipiai.
Tacitus then recites the arguments of thofe who fpoke againft
the payment of fees, and of thofe who fupported the ptaclice, and
concludes with t,elling us, that Claudius Crefar thinking that there
was more reafon, though lefs liberality, in the arguments of the
latter, capiendis pecuniis pofuit modum, ufqud ad ilena fefiertia, quern
c^ijji repetundarum tenerentur, 1 jitm. lib. ll. c. ^.
But befides the acceptance of fuch immenfe fees, the perfidy of
advocates Uad become a common traffic ; for Tacitus introduces
- the
Gh. 2* Wrongs. 29
to encourage due freedom of fpeech in the lawful defence of
their clients, and at the fame time to give a check to the un.
feemly licentiouftiefs of prollitute and illiberal men, (a few o
whom may fometimcs infinuate themfelves even into the moft
honourable profeflions,) it hath been holden that a counfelis
not anfwerable for any matter by him fpoken, relative to the
caufe in hand, and fuggefted in his clients inftructions } al-
though it fhould refledl upon the reputation of another, and
even prove abfolutely groundlefs : but if he mentions an un-
truth of his own invention, or even upon inftruQions if it be
impertinent to the caufe in hand, he is then liable to an ac-
tion from the party injured s. And counfsl guilty of deceit
or collufion are punifhable by the flatute Weflm. i . 3 Edw. I.
c. 28. with imprifonment for a year and a day, and perpetual
filence in thfe courts ; a punilhment ftill fometimes inflicted
for grofs mifdemefnors in practice '^.
8 Cro. Jac, 90. " Raym. 376.
the fubjeft by obferving, nee quidquam puhlic^ mercis tarn 'venalefuit
quam advocatorum perfidia. To the honour of our courts the cor-
ruption of judges and the treachery of counfel arc crimes unheard
of in this country, ^od enim eft jus civile ? ^od neque hifleSi
gratia^ neque perfringi potentid, neque adulterari pccuriid poljit , Cic. pro
Csecina.
Vol. in.
20 Private Book III.
CHAPTER THE FOURTH.
OF THE PUBLIC COURTS of COMMON
LAW AND EQUITY.
WE are next to confider the feveral fpecies and diftinc-
tions of courts of juftlce, which are acknowleged
and ufed in this kingdom. And thefe are either fuch as are
of public and general jurifdiftion throughout the whole
realm; or fuch as are only of a private and fpecial jurifdic-
tion in fome particular parts of it. Of the former there are
four forts; the univerfally eftablifhed courts of common law
and equity; the ecclefiaftical courts; the courts military j
and courts maritime. And, firft, of fuch public courts as
are courts of common law and equity.
The policy of our ancient conflitution, as regulated and
eftablifhed by the great Alfred, was to bring juftice home to
every man's door, by conftituting as many courts of judicature
as there are manors and townfhips in the kingdom ; wherein
injuries were redrefled in an eafy and expeditious manner, by
the fufFrage of neighbours and friends. Thefe little courts
however communicated with others of a larger jurifdidlion,
and thofe with others of a ftill greater power ; afcending
gradually from the loweft to the fupreme courts, which were
[31 ] refpedlively conftituted to correft the errors of the inferior
ones, and to determine fuch caufes as by reafon of their
weight and difficulty demanded a more folemn difcuflion.
The courfe of juftice flowing in large ftreams from the kinfj,
as the fountain, to his fuperior courts of record ; and being
then fubdivided into fmaller channels, till the whole and
every part of the kingdom were plentifully watered and re-
freflied. An inftitution that feems highly agreeable to the
dictates of natural reafon, as well as of more enlightened po-
licy;
Ch. 4. Wrongs. 31
licy ; being equally fimilar to that which prevailed In Mexico
and Peru before they were difcovered by the Spaniards, and to
that which was eftablifhed in the Jewifli republic by Mofes.
In Mexico each town and province liad it's proper judges,
who heard and decided caufes, except when the point in liti-
gation was too intricate for their determination ; and then it
was remitted to the fupreme court of the empire, eftablifhed
in the capital, and confifting of twelve judges *. Peru, ac-
cording to Garcilaffb de Vega, (an hiftorian defcended from
the ancient Incas of that country,) was divided into fmall dif-
tridls containing ten families each, all regiftred, and under
one magiftrate ; who had authority to decide little differences
and punifh petty crimes. Five of thefe compofed a higher
clafs oi fifty families ; and two of thefe laft compofed another
called a hundred. Ten hundreds conftituted the largeft divi-
fion, confifting of a thoufand families ; and each divifion had
it's feparate judge or magiftrate, with a proper degree of fub-
ordination . In like manner we read of Mofes, that, find-
ing the fole adminiftration of juftice too heavy for him, he
<* chofe able men out of all Ifrael, fuch as feared God, men
" of truth, hating covetoufnefs; and made them heads over
<' the people, rulers of thoufands, rulers of hundreds, rulers
** of fifties, and rulers of tens: and they judged the people
** at all feafonsj the hard caufes they brought unto Mofes,
** but every fmall matter they judged themfelves ^." Thefe
inferior courts, at leaft the name and form of them, ftill con-
tinue in our legal conftitution : but as the fuperbr courts of
record have in pralice obtained a concurrent original jurif- [ 32 1
dilion with thefe j and as there is befides a power of remov-
ing plaints or alions thither from all the inferior jurifdic-
tions J upon thefe accounts (among others) it has happened
that thefe petty tribunals have fallen into decay, and almoft
into oblivion: whether for the better or the worfe, may be
matter of fome fpeculation; when we confider on the one
hand the increafe of expcnfe and delay, and on the other the
more able and impartial decifion, that follow from this change
of jurifdiclion.
> Mod. Un. Hift. xxxviii. 469. * Exod. c. 18.
^ Uld. xxzix. 14..
D 2 Ti
32 Private Book III.
The order I fhall obferve in difcoiirfing on thefe feveral
courts, conilltuted for the redrefs oi, civil injuries, (for with
thofe of a jurifdiiflipn merely criminal I fliali not at prefcnt
concern myfclf,) will be by beginning with the loweft, and
thofe whofe jurifdi(licn, though public and generally dif-
perfed throughout the kingdom, is yet (with regard to each
particular court) confined to very narrow limits ; and fo
afcending gradually to thofe of the mod extenfive and tran-
fcendant power.
I. The loweft, and at the fame time the moft expeditious,
court of juftice known to the law of England is the court of
piepDudrey curia pedis pnlverizati : fo called from the dufty feet
of the fuitorsj or according to fir Edward Coke'', becaufe
judice is there done as fpeedily as dull can fall from the foot.
Upon the fame principle that juftice among the Jews was
admijiillered in the gate of the city "^j that the proceedings-
might be the more fpeedy as well as public. But the etymo-
logy given us by a learned modern writer '^ is much more
ingenious and fatisfalory ; it being derived, according to
him, horn pied pitldreaux, (a pedlar, in old French,) and there-
fore fignifying the court of fuch petty chapmen as refort to
fairs or markets. It is a court of record, incident to every
fair and market j of which the fteward of him, who owns or
r o^ n has the toll of the market, is the judge : and it's jurifdilion
extends to adminiiler juftice for all commercial injuries done
^ in that very fair or market, and not in any preceding one.
So that the injury muft bq done, complained of, heard, and
determined, within the compafs of one and the fame day,
unlefs the fair continues longer. The court hath cognizance
of all matters of contra(l: that can poflTibly arife within the pre-
cinct of that fair or market; and the plaintiff muft make oath
that the caufe of an ation arofe there s. From this court a
writ of error lies, in the nature of an appeal, to the courfs at
Weftminfter''; which are now alfo bound by the ftatute
ir> Geo, III. c. 70. to iflue writs of execution, in aid of its
J^Inft. 272. B Stat. lyEdw. IV. c a.
Ruth. c. 4. Cro. Eliz. 773.
" Iiarrington'5 obfeivat. on the ftat. 337.
procefs.
Ch. 4. Wrongs. ^^
procefs, after judgment, where the perfon or efFels of the
defendant are not within the limits of this inferior jurifdic-
tioni which may poiTibly occafion the revival of the pra<licc
and proceedings in thefe courts, which are now in a manner
forgotten. The reafon of theit original inftitution fecms to
have been, todo jullice expeditioufly among the variety of per-
fons, that refort from diitant places to a fair or market: fince
it is probable that no other inferior court might be able to
ferve it's procefs, or execute it's judgments, on both or per-
haps either of the parties; and therefore, unlefs this court
had been erefted, the complaint mud neceffarily havereforted
even in the firft inftance to fome fuperior judicature.
II. The court-baron is a court incident to every manor la
the kingdom, to be holden by the fteward within the faid
manor. This court-baron is of two natures ' : the one is 9
cuftomary-court, of which we formerly fpoke '', appertain-
ing entirely to the copyliolders in which their eftates are
transferred by furrender and admittance, and other matters
tranfacled relative to their tenures only. The other, of
which we now fpeak, is a court of common law, and it is
the court of the barons, by which name the freeholders were
fometimes antiently called (i): for that it is held before the
freeholders who owe fuit and fervice to the manor, the (lew- [oil
ard being rather the regiflrar than the judge. Thefe courts,
though in their nature diftinft, are frequently confounded
together. The court we are now confidering, viz, the free-
holder's court, was co^ipofed of the lord's tenants, who were
the pares of each other, and were bound by their feodal te*
' Co. Litt. 58. k Book 11. ch. 4. cb. 6. aM ch. 2a.
( I ) All the freeholders of the king were called barons, but the
Editor is not aware that It appears from any authority that thia
word was ever applied to thofe who held freeholds of a fubje^.h
See an account of the antient barons, i vol. 398. n. 3. It fccms
to be the more obvious explanation of the court-baron, that it waa
the court of the baron or lord of the manor, to which his freehold-
ers owed fuit and fervice. In like manner wc fay th? king's cour^
an^ the fhcriff's court,
P 3 nurf
34 Private Book III.
nure to afTift their lord in the difpenfation of domeilic juftice.
This was formerly held every three weeks ; and it's moft im-
portant bufmefs is to determine, by writ of right, all contro-
verfies relating to the right of lands within the manor. It
may alfo hold plea of any perfonal actions, of debt, trefpafs
on the cafe, or the like, where the debt or damages do not
amount to forty fliillings ' j which is the fame fum, or three
marks, that bounded the jurifdidlion of the antient Gothic
courts in their loweft inftance, ox fier ding- courts^ fo called,
becaufe four were inftituted within every fuperior diftril or
hundred". But the proceedings on a writ of right may be
removed into the county court by a precept from the fherifF
called a /o//", ** quia tollit atque eximit caufam e curia ba-
** ronum'^.'" And the proceedings in all other al:ions may
be removed into the fuperior courts by the king's writs of
poneP, or accedas ad curianiy according the nature of the
fuiti. After judgment given, a vi^rit alfo oi falfe jiidgmenf
lies to the courts at Weflminfter to rehear and review the
caufe, and not a writ of error ; for this is not a court of re-
cord : and therefore, in fome of thefe writs of removal, the
firfl; diredlion given is to caufc the plaint to bp recorded, re-
cordari facias loquelam.
IJI. A HUNDRED court is Only a larger court -baron, being
held for all the inhabitants of a particular hundred inftead of
a manor. The free fuitors are here alfo the judges and the
fteward the regiftrar, as in the cafe of a court baron. It is
likewife no court of record; refembling the former in all
points, except that in point of territory it is of a greater ju-
rifdi'd^ion '. This is faid by fir Edward Coke to have been
derived out of the county court for the eafe of the people, that
they might have juftice done to them at their own doors,
without any charge or lofs of time' ; but it's inftitution was
probably co-eval with that of hundreds themfelves, which
were formerly obferved ' to have been inti;oduced though not
' Finch. 24.8. < F. N. B. 4. 70. Finch. L. 444, 445.
"> Sticrnhook dejureGotb. 1. I. c. a. " F. N. B. 18,
F.N. B. 3,4.. See append. No. I. . 2. * Finch. L. 24S. 4 Inft. 267.
3 Rep. pref. * 2 Inft. 71.
P See append. No. I. . 3, * Vol, I. pag. jif.
invented
Ch. 4. Wrongs. 35
invented by Alfred, being derived from the polity of the an-
tient Germans. The centeniy we may remember, were the
principal inhabitants of a diftrift compofed of different vil-
lages, originally in number an hundred^ but afterwards only
called by that name"; and who probably gave the fame de-
nomination to the diftridl out of which they were chofen.
Caefar fpeaks pofitively of the judicial power exercifed in their
hundred courts and courts-baron. " Principes regionunjj at-
" que pagorum" (which we may fairly conftrue, the lords
of hundreds and manors,) ** inter fuos jus dicunt^ controverji^
** afque minuunf"** And Tacitus, who had examined their
conftitution ftill more attentively, informs us not only of the
authority of the lords, but of that of the centeniy the hun-
dredors, or jury ; who were taken out of the common free-
holders, and had themfelves a (hare in the determination.
** Eliguntur in conciliis et principes^ qui jura per pagos vicofque
** reddunt : centeniftngulis, ex plebe comiteSy conftlium ftmul et
*' auEioritas^ adfunt^y This hundred-court was denomi-
nated haereda in the Gothic conftitution y. But this court,
as caufes are equally liable to removal from hence, as from
the common court-baron, and by the fame writs, and may
alfo be reviewed by writ of falfe judgment, is therefore fallen
into equal difufe with regard to the trial of a<Slions.
IV. The county court is a court incident to the jurifdic-
tion of the fheriff. It is not a court of record, but may hold
pleas of debt or damages under the value of forty (hillings^. [ 36 3
Over fome of which caufes thcfe inferior courts have, by the
exprefs words of the ftatute of Gloucefter", a jurifdilion
totally exclufive of the king's fuperior courts. For in order
to be entitled to fue an alion of trefpafs for goods before the
king's julliciars, the plaintiff is direted to make affidavit that
the caufe of alion does really and bona fide amount to 40 j". ;
which affidavit is now unaccountably difufcd'', except in the
" Centetii txfinguU: pagitjunt, idque * de M.rib. Germcn, c. 13.
ipfuK inter ju OS vccantur j ct, qucdfiimo ^ Stiernhook. I, \. t 2.
numerui fuit, jam ncmen et honor eji, ' 4 Ir.ft. 266.
Tac. de inor. Germ. c. 6. "6 Edw. 1. c. 8.
* dt bell. Call. I, 6. f, 22. * i Inft. 39J.
D 4 court .
^6 Private Book III,
court of exchequer (2). The ftatute alfo 43 EHz. c. 6. which
gives the judges in many perfonal adlions, where the jury
aflefs lefs damages than 40/. a power to certify the fame and
abridge the plaintiff of his full cofts, was alfo meant to pre-
vent vexation by litigious plaintiffs; who, for purpofes of
mere oppreffion, might be inclinable to inftitute fuits in the
fuperipr courts for injuries of a trifling value. The county
court may alfo hold pica of many real actions, and of all
^ perfonal actions to any amount, by virtue of a fpecial writ
called 2ijujiicics ; which is a writ empowering the iheriff for
the fake of difpafch to do the fame juftice in his county
court, as might otherwife be had at Weftminfter *=. The
freeholders of the county are the real judges in this court,
and the (heriff is the minifterial officer. The great conflux
of freeholclers, which are fuppofed always to attend at the
county court, (which Spelman ctlWs forum plebeiae jujlitiae et
theatrum comitivae potejiatis^,) is the reafon why all al:s of
parliament at the end of every feffion were wont to be there
publifhed by the fheriff ; why all outlawries of abfconding
offenders are there proclaimed j and why all popular elections
\vhich the freeholders are to make, as formerly of fheriffs
and confervatprs of the peace, and ftill of coroners, verder-
ors, and knights of the fhire, mud ever be made in plena
^otnitatuy or, in full county court. By the ftatute 2 Edvv. VI,
c. 25. no county court fliall be adjourned longer than for
one month, confifting of twenty-eight days. And this wa^
f 37 3 '^^^'^ the antient ufage, as appears from the laws of king Ed-
ward the elder *: *^ pmepofittis (that is, the (heriff) ad quar-
** tarn circiterfepiimanamfrequentempopuHcoiiciotum cclehrato;
** cu'tqiie jus dicito ; litefque fitigulas dirimito." In thofe times
the county court was a court of great dignity and fplendor,
the bifhop and the ealdorman (or earl) with the principat
f Finch 318. F.N. B. 152. ^ P/cJ'. v. comi(atus, f. ii.
(2) But if an alion is iiiftituted in any of the courts of Weftr
piinfter, and if the defendant makes an affidavit that the debt is
ynder40J. the proceedings will be {layed> unlefs the plaintiff will
jilfo make an affidavit to the contrary. 4 T. R. 495. 5 T. R. 64.
Ch. 4. Wrongs. 37
men of the (hire fitting therein to adminlfter juftke both in
lay and ccclefiaftical caufes ^, But it's dignity was much
impaired, when the bifhop was prohibited and the earl ne-
gleted to attend it. And, in modern times, as proceedings
are removeable from hence into the king's fuperior courts,
by writ of pone or recordari^y in the f^ime manner as from
hundred courts, and courts-baron ; and as the fame writ of
falfc judgment may be had, in nature of a wri* of error ; this
has occafioned the fame difufe of bringing alions therein.
These are the feveral fpecics of common law courts,
vhich though difperfed univerfally throughout the realm,
are nevertiielefs of a partial jurifdilion, and confined to par-
ticular diftriifls: yet communicating with, and as it were
members of, the fuperior courts of a more extended and
general nature j which are calculated for the adminiltration
<)f redrefs, not in any one lordfliip, hundred, or county only,
tut throughout the whole kingdom at large. Of which fort is,
V. The court of common pleas, or, as It is frequently
termed in law, the court of common bench.
By the ancient Snxon conftitutlon there was only one fu-
perior couit of juftice in the kingdom; and that court had
cognizance both of civil and fpiritual caufes: uiz. the ivittena^
gemote^ or general council, whicli aflembled annually or often-
er, wherever the king kept his Chriftmas, Eafler, or Whitfun-
tide, as well to do private juftice as to confult upon public
bufinefs. At the conqueft the ecclefiaftical jurifdi(flion was
diverted into another channel ; and the conqueror, fearing f 38 1
danger from thefe annual parliaments, contrived alfo to fepa-
rate their minifterial power, as judges, from their delibera-
tive, as counfellors to the crown. He therefore eftabiiOied
a conftant court in his own hall, thence called by Bradlon''.
and other antient authors aula regia or aula regis. This court
was compofed of the king's great officers of (late refident in
Ms palace, and ufually attendant on his perfon : fuch as the
lord high conftable and lord marcfchal, who chiefly prefidcd
' LL. Eadgari. f . 5. /. 3. tr. \, t. 7.
F. N. B. 70. Finch. 445.
5 Ja
3^ ^ Private Book III.
in matters of honour and of arms i determining according to
the law military and the law of nations. Befides thefe there
were the lord high fteward, and lord great chamberlain ; the
fteward of the houftiold i the lord chancellor, whofe peculiar
bufinefs it was to keep the king's feal, and examine all fuch
writs, grants, and letters, as were to pafs under that autho-
rity j and the lord high treafurer, who was the principal ad-
vifer in all matters relating to the revenue. Thefe high
officers were affifted by certain perfons learned in the laws,
who were called the king's jufticiars or juftices ; and by the
greater barons of parliament, all of whom had a feat in the
aula regioy and formed a kind of court of appeal, or rather of
advice, in matters of great moment and difficulty. All thefe
in their feveral departments tranfacled all fecular bufinefs both
criminal and civil, and likewife the matters of the revenue :
and over all prefided one fpecial magiftrate, called the chief
jufticiar or capitalis jujiiciarius totius Atigliae ; who was alfo
the principal minifter of ftate, the fecond man in theking-
<]om, and by virtue of his office guardian of the realm in the
king's abfence. And this officer it was, who principally de-
termined all the vaft variety of caufes that arofe in this cx-
tenfive jurifdiftion; and from the plenitude of his power
grew at length both obnoxious to the people, and dangerous to
the government which employed himj.
This great univerfal court being bound to follow the
king's houfliold in all his progrefles and expeditions, the trial
r 29 jof common caufes therein was found very burthenfome to
the fubjet. Wherefore king John, who dreaded alfo the
power of the jufticiar, very readily confented to that article
which now forms the eleventh chapter of magna carta^ and
ena6ls, ** that communia plactta nonfequantur curiam regis, fed
*' ieneaniur in aliquo loco certo.^* This certain place was efta-
b|ifhed in Wellminfter-hall, the place where the aula regis
originally fate, when the king refided in that city ; and there
it hath ever fince continued. And the court being thus ren-
dered fixed and ftationary, the judge became fo too, and a
chief with other juftices of the common pleas was thereupon
J Spdm. a. 331, 2, 3. Gilb. Hift. C, P. introd. 17.
appointed \
Ch. 4. Wrongs. 39
appointed ; with junfdilion to hear and determine all pleas
of land, and injuries merely civil between fubjetl and fub-
jedi. Which critical eftablifhment of this principal court of
common law, at that particular juncture and that particular
place, gave rife to the inns of court in its neighbourhood ;
and, thereby colleling together the whole body of the com*
mon lawyers, enabled the law itfelf to withftand the attacks
of the canonifts and civilians, who laboured to extirpate and
deftroy it'. This precedent was foon after copied by king
Philip the Fair in France, who about the year 1302 fixed the
parliament of Paris to abide conftantly in that metropolis ;
which before ufed to follow the perfonof the king, wherever
he went, and in which he himfelf ufed frequently to decide
the caufes that were there depending: but all were then re-
ferred to the fole cognizance of the parliament and it's learned
judges''. And tlius alfo in 1495 the emperor Maximilian I.
fixed the imperial chamber (which before always travelled
with the court and houlhold) to be conftantly held at Worms,
from whence it was afterwards tranflated to Spire '.
The aula regia being thus ftripped of fo confiderable a
branch of it's jurifdiclion, and the power of the chief jufti-
ciar being alfo confiderably curbed by many articles in the '
great charter, the authority of both began to decline apace
under the long and troublefome reign of king Henry III. [ 40
And, in farther purfuance of this example, the other feveral
offices of the chief jufticiar were under Edward the firft (who
new modelled the whole frame of our judicial polity) fub-
divided and broken into diftinl: courts of judicature. A
court of chivalry was erefted, over which the conftable and
marefchal prefided ; as did the ftev/ard of the houlhold over
another, conftitutcd to regulate the king's domeftic fervants.
The high ileward, with the barons of parliament, formed an
auguft tribunal for the trial of delinquent peers j and the ba-
rons referved to themfelves in parliament the right of review-
ing the fentences of other courts in the laft refort. The diftri-
bution of common juftice between man and man was thrown
i See vol. I. introd. i. ^ Jbid. xxa, 467.
f( Mod. Un. Hift. zx'iii. 396*
into
40
P R I V A T E Book III,
into fo provident an order, that the great judicial officers were
made to form a cheque upon each other : the court of chan-
cery ifluing all original writs under the great feal to the other
courts i the common pleas being allowed to determine all
caufes between private fubjedls; the exchequer managing
the king's revenue ; and the court of king's bench retaining
all the iurifdiilion which was not cantoned out to other
courts, and particularly the fuperintendence of all the reft by
\ray of appeal ; and the fole cognizance of pleas of the crown
or criminal caufes. For pleas or fuits are regularly divided
into two forts; pleas of the crown, which comprehend all
crimes and mifdemeihors, wherein the king (on behalf of
the public) is the plaintiff; and common pleas, which include
all civil aftions, depending between fubjet^ and fubjecl.
The former of thefe were the proper obje<a of the jurifdic-
tion of the court of king's bench ; the latter of the court of
common pleas : which is a court of record, and is ftiled by
fir Edward Coke"" the lock and key of the common law; for
herein only can real actions, that is, actions which concern
the right of freehold or the realty, be originally brought :
and all other, or perfonal, pleas between man and man are
likewife here determined; though in moft oi them the king's
bench has alfo a concurrent authority.
-1 The judges of this court are at prefent " four in number,
^ one chief and three ptiifne juftices, created by the king's let-
ters patent, who fit every day in the four terms to hear and
determine all matters of law arifing in civil caufes, whether
real, perfonal, or mixed and compounded of both. Thefe
it takes cognizance of, as well originally, as upon removal
from the inferior courts before-mentioned. But a writ of
error, in the nature of an appeal, lies from this court into
the court of king's bench.
* 4 Inft. 99. that the circuits might at all times be
Kiag James I. during the greater fuiiy fupplied'with judges of the faperior
psrtof his leign, appointed five judges in courts. And, in fubfequent reignj,
the courts of king's bench and common upon the permanent indifpoiition of a
pleas, for the benefit of a cafting voice judge, a fifth hath httn fometimes ap-
Ib caiie &f a diffciencc in opiaion,' and pointed. Ra^n)i 475.
VI. The
Ch. 4. Wrongs. 41
VI. The court of king's bencli (fo called bccaufc the
king ufed formerly to fit there in perfon", the fcile of the court
dill being coram ipfo regej{2) > the fupreme court of common
law in the kingdom ; confiding of a chief jufticc and thres
puifne juftices, who are by their oiSce the fovereign confer-
vators of the peace and fupreme coroners of the land. Yet^
though the king himfelf ufed to fit in this court, and ftill is
fuppofed fo to do; he did not, neither by law is he empower-
ed P to, determine any caufe or motion, but by the mouth
of his judges, to whom he hath committed his whole judicial
authority"!.
4lnft, 73. ccurt of king's bench. (See the records
P See book I. ch. 7. The king ufed cited 4 Burr. 851. )(4). And, in later
-to decide caufes in perfon in the aula re- times James I. is faid to have fat there
giat " In curia domiai regti ipfe in pro- in petfjn, but was informed by his j udges
*' pria perj'onajura duernit.^'' (Dial, dc that he could not deliver an opinion.
Scacch. I. 1. . 4.) After it's diflblution 'i 4 Inft. 71.
king Edward 1. frequently fat in the
(3 ) This court is called the queen's bench In the reign of a queen,
and during the protedlorace of Cromwell It was lllled the upper
bench.
(4) Lord Mansfield, In 4 Burr. 851. does not mean to fay, nor
do the records there cited warrant the conclufion, that Ed. I. ac-
tually fat In the king's bench. Dr. Henry, In his very accurate
Hiilory of Great Britain, Informs us, that he has found no Inftance
of any of our kings fitting In a court of juftlce before Ed. IV. "And
*' Ed. IV. (he fays) In the fecond year of his reign, fat three days
** together, during Michaelmas term. In the court of king's bench;
* but It Is not faid that he Interfered in the bufinefs of the court;
** and as he was then a very young man, it Is probable that It was
* his Intention to learn In what manner juftlce was adminiftercd,
" rather than to al the^jart of a judge." 5 vol. 382. 410 edit.
Lord Coke fays, that the words In magna charta, c. 29. nee fuper
eum tbimus nee fuper eum mittemus n'lfi, iffe. fignifying that we fliall
not fit in judgment ourfelves, nor fend our commilfioners orjudges
to try him. 2 Inji. 46.
But that this Is an erroneous conftrufllon of thefe words, appears
from a charter granted by king John In the 16th yeai'of his reign,
which Is thus expre/Tcd, nee fuper eos per vim velper arma ih'imus n'lfi
per legem regni nojlri vel per judiaum pariumfuorum. See Int. to Bl.
Mag. Ch, p. xiii.
This
41 Private Book III.
This court, which (as we have faid) Is the remnant of the
aula regiay is not, nor can be, from the very nature and
conftitution of it, fixed to any certain place, but may follow
the king's perfon wherever he goes ; for which reafon all
procefs ifluing out of this court in the icing's name is return-
C 42 3 at)le ** ubicttnque fuerimus in Anglia" It hath indeed, for
fome centuries paft, ufually fate at Weftminfler, being an an-
tient palace of the crown; but might remove with the king
to York or Exeter, if he thought proper to command it.
And we find that, after Edward I. had conquered Scotland,
it aftually fate at Roxburgh \ And this moveable quality,
as well as it's dignity and power, are fully exprefied by Brac-
ton, when he fays that the juftices of this court are " capU
** tales y generaleSi perpetui^ et major es: a latere regis refidetites ;
** qui omnium aliorum corrigere tenentur injurias et errores '.'*
And it is moreover efpeeially provided in the articuli Jiiper
cartas^ that the king's chancellor, and the juftices of his
bench, fhall follow him, fo that he may have at all times
near unto him fome that be learned in the laws.
The jurifdidion of this court is very high and tranfcend-
ent. It keeps all inferior jurifdidlions within the bounds of
their authority, and may either remove their proceedings to
be determined here, or prohibit their progrefs below. It
fuperintends all civil corporations in the kingdom. It com-
mands magiftrates and others to do what their duty requires,
in every cafe where there is no other fpecific remedy. It
proteds the liberty of the fubjel, by fpeedy and fummary
interpofition. It takes cognizance both of criminal and civil
caufes ; the former in what is called the crown-fide or crown-
office; the latter in the plea-fide of the court. The jurif-
didion of the crown-fide it is not our prefent bufinefs to
confider \ that will be more properly difcufled in the enfuing
volume. But on the plea-fide, or civil branch, it hath an
original jurifdidion and cognizance of all adions of trefpafs,
or other injury alleged to be committed vi et armis; of
adions for forgery of deeds, maintenance, confpiracy, de-
^ M. 20, a I Edw. I. HaleHJft. C. /. 3. c. 10.
L. aoo. ' a8 Edw. I. c, 5.
ceit.
Ch. 4. Wrong?. 42
ceit, and alIons on the cafe which allege any falfity or
fraud : all of which favour of a criminal nature, although
the alion is brought for a civil remedy; and make the de-
fendant liable in ftriftnefs to pay a fine to the king, as well [ 43 3
as damages to the injured party ". The fame doftrine is alfo
now extended to all aflions on the cafe whatfocver^: but
no alion of debt or detinue, or other mere civil action, can
by the common law be profecuted by any fubje61: in this court,
by original writ out of chancery" ; though an aftion of debt,
given hsjlatutey may be brought in the king's bench as well
as in the common pleas y. And yet this court might always
have held plea of any civil acSlion (other than actions real)
provided the defendant was an officer of the court; or in the
cuftody of the marfhal, or prifon-keeper, of this court, for
a breach of the peace or any other offence*. And, in pro-
cefs of time, it began by a filion to hold plea of all per-
fonal aClions whatfoever, and has continued to do fo for
ages*: it being furmifed that the defendant is arrefted for a
fuppofed trefpafs, which he never has in reality committed ;
and, being thus in the cuftody of the marflial of this court,
the plaintiff is at liberty to proceed againft him for any other
perfonal injury: which furmife, of being in the marfiial's
cuftody, the defendant is not at liberty to difpute **. And
thefe fiftions of law, though at firft they may ftartle the ftu-
dent, he will find upon farther confideration to be highly
beneficial and ufeful : efpecially as this maxim is ever inva-
riably obferved, that no fiftion (hall extend to work an injury;
it*8 proper operation beiqg to prevent a mifchicf, or remedy
an inconvenience, that might refult from the general rule of
law'. So true it is, that in Jiclione juris femper fub/sjlit aequi-
tas^. In the prefeut cafe, it gives the fuitor his choice of
" Finch. L. 198. 2 Inft 23. Dy- jiEl'tontm mn aimittltur frohat'io: quid
verfttt de courtet, c, hank U roy. tnim efUerct frobatio veritatis, ubi Jiciit
* F. N. B id. 92. I Lilly, prjft. adverfui ventatem Jingit ? Nam fiElio
Reg. 503. tiihil al'iud ejiy quam legis ad-verfus veri.
' 4 Inft. 76. Trye's Juj Filazar. loi. taum in re pofflbilfex jujla caufa diffojitig,
y Carth. 234, (Gothofred. in Ff. I. 22. /. 3.)
* 4 Inft. 71. 3 Rep. 30. 2 Roll. Rep, 502.
* Ibid. 72. * II Rep. SI. Co, Lit:, 150.
* Thui 100 ia the civil law : tcntrt
more
43 Private Book IlL
more than one tribunal, before which he may Inilitute his ac-
tion; and prevents the circuity and delay of juftice, by allow-
I^ 44 3 ^"g th^^ ^^^^ ^o ^^ originally, and in the firft inftance,
commenced in this court, which- after a determination in-
another, might ultimately be brought before it on a writ of
error.
For this court is likewife a court of appeal, into which
may be removed by a writ of error all determinations of the
court of common pleas, and of all inferior courts of record
in England; and to which a writ of error lies alfo from the
court of king's bench in Ireland (5). Yet even this fo high
and honourable court is not the dernier refort of the fubjel' :
for, if he be not fatisfied with any determination here, he
inay remove it by writ of error into the houfe of lords, or the
court of exchequer chamber, as the cafe may happen, ac-
f:ording to the nature of the fuit, and the manner in which
it has been profecuted.
VII. The court of exchequer is Inferior In rank not only
to the court of king's bench, but to the common pleas alfo;
but I have chofen to confider it in this order, on account of
it's double capacity, as a court of law and a court of equity
alfo. It is a very ancient court of record, fet up by William
the conqueror^, as a part of the aula regia% though regu-
lated and reduced to it's prefent order by king Edward I^;
and intended principally to order the revenues of the crown,,
and to recover the king's debts and duties'". It is called the
txcYieqvLtTf fcaccharium, from the chequed cloth, refembling
a chefs board, which covers the table there ; and on which,
when certain of the king's accounts are made up, the fums
are marked and fcored with counters. It confifts of two divi-
fions : the receipt of the exchequer, which manages the royal
revenue, and with which thefe commentaries have no con-
* Lamb. Arcbeion, 24. Spelm. Gull. I. incog, leg. vet, di/irf*Wilkins,
' Madox. bift. ch. IC9. " 4lnft. 103.-116.
(5) This ahered by the 23 Geo. III. c. 28. which fee in the
\ vol. 104. n. [4.
cern j.
Ch. 4 Wrongs. 44 ^
cern ; and the court or judicial part of itj wIiicK is again fub-
divided into a court of equity, and a court of common law.
The court of equity is held in the exchequer chamber be- r ac 1
fore the lord treafurer, the chancellor of the exchequer, the
chief baron, and thr6e pttifrte ones. Thefe Mr. Seldon con-
jedlures* to have been anciently made out of fuch as were
barons of the kingdom, .or parliamentary barons ; and thence
to have derived their name j which conjelure receives great
ftrength from Bradlon's explanation of magna carta, c. 14.
which direls that the earls and barons be amerced by their
peers; that is, fays he, by the barons of the exchequer''.
The primary and original bufinefs of this court is to call the
king's debtors to account, by bill filed by the attorney-gene-
ral; and to recover any lands, tenements, or hereditaments,
any goods, chattels, or other profits or benefits, belonging to
the crown. So that by their original conftitution the jurif-
diclion of the courts of common pleas, king's bench, and
exchequer, was entirely feparate and diftindl : the common
pleas being intended to decide all controverfies between fub-
jeft and fubjedl; the king's bench to correcl all crimes and
mifdemefnors that amount to a breach of the peace, the king
being then plaintiff, as fuch offences are in open derogation
of the Jura regalia of his crown: and the exchequer to ad-
jufl: and recover his revenue, .wherein the king alfo is plain-
tiff, asthe withholding and non-payment thereof is an injury
to his Jura fifcalia. But, as by a fidlion almofl all forts of
civil actions are now allowed to be brought in the king's
bench, in like manner by another fidlion all kinds of perfonal
fuits may be profecuted in the court of exchequer. For as
all the officers and minifters of this court have, like thofe of
other fuperior courts, the privilege of fuing and being fued
only in their own court ; fo alfo the king's debtors and far-
mers, and all accomptants of the exchequer, are privileged
to fue and implead all manner of perfons in the fame court of
equity, that they themfelves are called into. They have like-
Tit. hon. 2. 5. i6 * /. 3. tr, s. f, I. 3.
Vol. III. E wife
45 Private Book III;
wife privilege to fue and implead one another, or any
ftranger, in the fame kind of common law aftions (where
the perfonalty only is concerned) as are profecuted in ths
court of common pleas.
[ .g 3 This gives original to the common law part of their jurif-
dilion, which was eftablifhed merely for the benefit of the
king's accomptants, and is exercifed by the barons only of
the exchequer, and not the treafurer or chancellor. The
writ upon which all proceedings here are grounded is called
a quo minus : in which the plaintiff fuggefts that he is the
king's farmer or debtor, and that the defendant hath done
him the injury or damage complained of ; quo minus fujfficiens
exj/lit, by which he is the lefs able, to pay the king his debt
or rent. And thefe fuits arc exprefsly direfted, by what is
called the ftatute of Rutland', to be confined to fuch matters
only, as fpecially concern the king or his minifters of the ex-
chequer. And by the articult fuper cartas "" it is enabled,
that no common pleas be thenceforth holden in the exche-
quer, contrary to the form of the great charter. But now,
by the fuggeftion of privilege, any perfon may be admitted to
fue hi the exchequer as well as the king's accomptant. The
furmlfe, of being debtor to the king, is therefore become
matter of form and mere words of courfe, and the court is
open to all the nation equally. The fame holds with regard
to the equity fide of the court : for there any perfon may file
a bill againft another upon a bare fuggeftion that he is the
king's accomptant; but whether he is fo, or not, is never
controverted. In this court, on the equity fide, the clergy
have long ufed to exhibit their bills for the non-paymentvf
tithes ; in which cafe the furmlfe of being the king's debtor
is no filion, they being bound to pay him their firft fruits,
and annual tenths. But the chancery has of late years ob-
tained a large fhare in this bufinefs.
An appeal from the equity fide of this court lies immedi-
ately to the houfe of peers j but from the common lav7 fide,
> JO dw. I. c II. o* z8 dw. I. . 4,.
Ch. 4. Wrongs. 46
in purfuance of the ftatute 3 1 Edw. III. c. 1 2. a writ of error
muft be fird brought into the court of exchequer chamber.
And from the determination there had there lies, in the der-
nier reforty a writ of error to the houfe of lords.
VIII. The high court of chancery is the only remaining, [ 47 1
and in matters of civil property by much the moft important
of any, of the king's fuperior and original courts of juftice.
It has its name of chancery, cancellarioy from the judge who
prefides here, the lord chancellor or cancellarius ; who, fir
Edward Coke tells us, is fo termed a cancellando, from can-
celling the king's letters patent when granted contrary to
law, which is the higheft point of his jurifdifbion "". But the
office and name of chancellor (however derived) was cer-
tainly known to the courts of the Roman emperors : where
it originally feems to have fignified a chief fcribe or fecretary,
who was afterwards invefted with feveral judicial powers, and
a general fuperintendency over the reft of the officers of the
prince. From the Roman empire it pafled to the Roman
church, ever emulous of imperial ftate; and hence every
bilhop has to this day his chancellor, the principal judge of
his confiftory. And when the modern kingdoms of Europe
were eftablifhed upon the ruins of the empire, almoft every
ftate preferved it's chancellor, with different jurifdiiSlions and
dignities, according to their different conftitutions. But in
all of them he feems to have had the fupervifion of all char-
ters, letters, and fuch other public inftruments of the crown,
as were authenticated in the moft folemn manner: and there-
fore when feals came in ufe, he had always the cuftody of
the king's great feal. So that the office of chancellor, or
lord keeper, (whofe authority by ftatute 5 Eliz. c. 18. is
declared to be exadly the fame,) is with us at this day created
by the mere delivery of the king's great feal into his cuftody:
whereby he becomes, without writ or patent, an officer of
the greateft weight and power of any now fubfifting in the
kingdom ; and fuperior in point of precedency to every tcm-
4 Inft. 88. Lamb. jlrdtiQn. 65. 1 Roll. Abr. 385.
. E 2 poral
47 Private * Book III.
poral lord?. He is a privy counfellor by his office "i, and,
acGording to lord chancellor Ellefmere'', prolocutor of the
houfe of lords by prefcrlption. To him belongs the appoint-
[ 48 ] ment of all juftices of the peace throughout the kingdom.
Being formerly ufually an ecclefiaftic, (for none elfe were
then capable of an office fo converfant in writings,) and pre-
fiding over the royal chapel ', he became keeper of the king's
confcience; vifitor, in right of the king, of all hofpitals 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
Icing's books (6). He is the general guardian of all infants,
P Stat. 31 Hen. VIIT. c. lo. '' Madox. hift. of exch. 42.
i Selden. office of lord chanc. 3. ' sSEdw.llI. 3. F. N.B. 35. though
of the oflice of lord chance. lor. <t/iV, Hobart (214.) extends this value. t
1 65 1. twenty ^ci/i.
(6) With regard to the chancellor's patronage, there feems to
be feme inaccuracy in the learned judge's text and references. I
humbly conceive that a truer ftatement is this, viz. that it appears
from the rolls of parliament in the time of Ed. IH. that it had been
the iifage before that time for the chancellors to give all the king's
livings, taxed (by the fubfidy aflcflments) at twenty marks or under,
to the clerks, who were then adlually ckri or clergymen, who had
long laboured in the court of chancery ; but that the bilhop of Lin-
coln, when he was chancellor, had given fuch livings to his own and
other clerks, contrary to the pleafure of the king and the antient
ufage ; and therefore it is recommended to the king by the council
to command the chancellor to give fuch livings only to the clerks
of chancery, the exchequer, and the other two benches or courts of
Weftminfter-hall. 4 Ed'w. III. no. 5 1 . But fince the new valua-
tion of benefices, or the king's books in the time of Henry the
eighth, and the clerks ceafed to be in orders, the chancellor has had
the abfolute difpofal of all the king's livings, even where the pre-
fentation devolves to the crown by lapfe, of the value of twenty-
pounds a year or under in the king's books. It does not appears
how this enlarged patronage has been obtained by the chancellor,
but it is probable by a private grant of the crown, from a confidera-
tion that the tv.'enty marks in the time of Ed. HI. were equivalent
to twenty pounds in the time of Henry VHI. Gibf. 764. L Burn^
Ec, Law, 129.
Ch. 4 Wrongs. 48
ifliots, and lunatics; and has the general fuperintendance of all
charitable ufes in the kingdom. And all this, over and above
So far this was the note in the lail edition ; but a reverend
gentleman has been fo obliging as to fuggcft to me, that, hav.
ing once had occafion to examine the fubjedl, he was inclined
to think, that the chancellor's patronage was confined to be-
eBces under 20 /. a year, and that livings exaftly of that value
belonged to the king, to be prefented to by himfclf or his mini-
fter. Having, in confequence, looked more attentively into the
fubjeft, I am flill of opinion, that the authorities fupporr what is ad-
vanced in the preceding part "of the note. It cannot be doubted,
that fince the new valor heneficiorum, pounds were intended to be fub-
ftituted for mnrh, and this is exprefsly ftated by bifhop Gibfon,
p. 764. Ifi the 4 Ed. III. cited above, the chancellor's patronage is
ftated to be of all livings of 20 marks and under, del fax de 'vlnt marcs
et dedeyns. In the i Hen. VI. no. 25, Rolls of ParUament, there is
a record appointing the duke of Bedford proteftor, and the duke
of Gloucefter protestor in his abfence; andamongft other privileges
it grants the proteftor for the time being, the patronage of all the
Kvings belonging to the crown, ultra iaxam vrgiriti marcarum ufqite ad
taxam iriginia marcarum Inclujive, and refers'es the reft of the royal
patronage to the king, except the benefices belonging to the chan-
cellor, virtute qffictifut. The word inclujive can only apply to the
words ufque adtriginta ; it cannot be reconciled with ultra, which u as
intended to leave the chancellor 20 or under. This is alfo clearly
expreffed in the Regijlrum Brevium 307, where there is an ant lent
writ called de prima benejicio ecclejiajlico habendo. Volumus quod idem
A ad primum benejicium ecclejiajlicum (taxationem viginli marcarum ex-
cedensj vacaturum, quod ad prafentationem nojlram pertimterit., Sffr.
In the year book 38 Ed. III. 3. it is laid down as law, that the
king {hall prefent to tout-x. efgUfes que pqffcnt I'extent de 20 marcs ;
and in the next line it is faid, that the chancellor (hall prefent to
all not taxed at 20 marks, and having underftood that the living
in queftion was taxed at 40 j. he had prcfented to it, but as in fat
it was taxed at 40 /. the king claimed it. The words in French
ftate the general law, the reft only apply to the particular cafe.
Yet Watfon is fo carelefs as to ftate the chancellor's patronage to
be under 20 marks and under 20 I. and refers to this authority,
ch. 9. But it is corredtly cited by Comyns, to fupport the pofi-
tion, that the chancellor has the patronage of 20 marks, or 20/.
r)ig. Tit. Efgl. H- S' In Fit%. n. b. 35, it is ftated to be under
fO marks, without taking any uotiee of 20 exactly. And in a
E 3 cafe
4^ Private Book III.
the vafl: and extenfive ]urifclilion which he exercifes in his
judicial capacity in the court of chancery ; wherein, as in
the exchequer, there are two difl:in<St tribunals : the one
ordinary, being a court of common law j the other extraor-
dinary, being a court of equity.
The ordinary legal court is much more antient than the
court of equity. It's jurifdiclion is to hold plea upon zfcire
facias to repeal and cancel the king's letters patent, when
made againll law, or upon untrue fuggeftions ; and to hold
cafe in Hob. 214, the word is under. In that cafe the chancellor
had prcfented to a living lapfed to the crown above 20 / a year,
and it was held that the king could have no remedy, becaufe the
prefentation had pafFed the great feal, and therefore apparently made
by the king himfelf; but if the prefentation had ftated, that the be-
nefice was under the value of 20 /- then It would have been void, be-
caufe the chancellor mull have been deceived. In this cafe there
was no occafion to Hate the inftance of a living of the exaft value
of 20/. This was a benefice, which had devolved to the crown
by lapfe, but no objedion is made on that ground, and there feems
to be no reafon for any diftinftlon, whether the benefice devolves to
the king by lapfe or by promotion of the incumbent, or It Is part
of his original patronage. I have ftated the authorities which
exprefsly give the chancellor the patronage of the value of 20
marks, or now 20 /. and I have referred to thofe which ftate It to be
under; and I cannot but obferve fo far they are all confiftent, as I
find no authority In oppofition to thofe above, declaring that livings
of the value of 20/. belong to the king and not to the chancellor.
The gentleman who wifhed me to examine the authorities upon
this fubjefl, was fo obliging as to Inform me that the crown has the
patronage of five livings of the exa6t value of 20 /. In the king's
books, but that feveral others of that value occafionally devolve to
the crown by lapfe and promotion ; that he has examined the
church book In the fecretary of ftate's office, and that he finds
within the prefent century many Inftancesof prefentatlons to thofe
livings by the crown, but he admits In fome modern Inftances,
where the right to the prefentation has been claimed both by the
chancellor and the minlfter, that the latter has yielded to the former.
From the whole, one is led to conclude that thefe prefentatlons
made by the crovrn, were owing either to the inattention or the
accornmodation of the chancellor.
plea
Ch. 4. Wrongs. 48
plea of petitions, monjirans de droit, traverfes of offices, and
the like; when the king hath been advifed to do any aft, or
is put in pofTeffion of any lands or goods, in prejudice of a
fubje6t's right ^ On proof of which, as the king can never
be fuppofed intentionally to doany wrong, the law queftions
not but he will immediately redrefs the injury; and refers
that confcientious talk to the chancellor, the keeper of his
confcience. It alfo appertains to this court to hold plea of
all perfonal aftions, where any oflicer or minifter of the court
is a party ". It might likewife hold plea (by fcire facias ) of
partitions of lands in coparcenary^, and of dower", where
any ward of the crown was concerned in intereft, fo long as
the military tenures fubfifted : as it now may alfo do of the
tithes of foreft land, where granted by the king and claimed [ 49 1
by a ftranger againft the grantee of the crown''; and of exe-
cutions on ftatutes, or recognizances in nature thereof by
the ftatute 23 Hen. VIII. c. 6 ^. But if any caufe comes to
iflue in this court, that is, if any fal: be difputed between
the parties, the chancellor cannot try it, having no power to
fummonajury: but muft deliver the xecorA. propria manu
into the court of king's bench, where it (hall be tried by the
country, and judgment (hall 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 fo
little is ufually done on the common law fide of the court,
that I have met with no traces of any writ of error *^ being
adtually brought, fince the fourteenth year of queen Eliza-
beth, A. D. I ST 2.
In this ordinary, or legal, court is alfo kept the officina
jujlitiae: out of which all original writs that pafs under the
4 Rep, 54. 24. 29.^47. Dyer. 315. i RolL
" 4 Inft. 80. Rep. 187. 4 Inft. 80.
* Co. Litt. 171. F. N. B. 61. ' The opinion of lord keeper North
Bro..4&r rjf. i&wr. 66. Moor. 565. in 1682 (i Vcrn. 131. i Equ. Caf.
1 Bro. Abr. t. dijrr.et, lo. abr. Jzp.) that no fuch writof error lay,
' Z Roll. Abr. 469. and that an injunction might be iHued
* Cro. Jac. 12. Latch. T12. againft it, fcems not to have been well
* Yearbook, iZEdio, III. 1$. iT ^ff. confidered,
4 great
49 Private Book II,
great feal, all commifTions of charitable ufes, fewers, bank-,
ruptcy, idiotcy, lunacy, and the like, do Iflue ; and for which
it is always open to the fubjecl, who may there at any time
demand and have, ex deh'Uo jitjlitiaey any writ that his occa-
fions may call for. Thefe writs (relating to the bufmefs of
the fubjedl) and the returns to thein were, according to the
fimpHcity of antient times, originally kept in a hamper, in
hanaperio ; and the others (relating to fuch matters wherein
the crown is immediately or mediately concerned) were pre-
ferved in a little fack or bag, in parva baga ; and thenoe hath
arifen the diftindlion of the hanaper o^^cCy and petty bag office,
which both belong to the commoji law court in chancery.
50 ] But the extraordinary court, or court of equity, is now;
become the court of the greatefl: judicial confcquence. This
diftindlion between law and equity,asadmini{leredin different
courts, is not at prefent known, nor feems to have ever been,
known, in any other country at any time'*: and yet the dif-
ference of one from the other, when adminiftered by the fame
tribunal, was perfectly familiar to the Romans^; the jus.
praetoriuiTiy or difcretlon of the praetor, being diftinft from
the leges or Handing lav/s*^ : but the power of both centered
in one and the fame magiftrate, who was equally entrufted
to pronounce the rule of law, and to apply it to particular
cafes by the principles of equity. With us too, the aula,
regioy which was the fupreme court of judicature, undoubt-
edly adminiftered equal juftlce according to the rules of both
qr either, as the cafe might chance to require: and, when
that was broken to pieces, the idea of a court of equity, as
difl-inguifhed from a court of law, did not fubfift in the ori-
ginal plan of partition. For though equity is mentioned by
The council of confclence, inflituted their decifions as well upon principles of
ly John I]I, king of Portugal, to review equity as thofe of pofitiye law. (Lord
the fentences of all inferior courts, and Kayms. hiftor, law. tradVs, I. 325. 330.
rnoderate them by equity, (Mod. Un. princ. of equit. 44..)
Hiit. xxii. 237.) feems rather to have ' Thus Ciceroj *' jam illis fromijjit
been a court of appeal. *' non effe fianduniy guis non I'tderj quae
Thus too the parliament of Paris, ** coaBut qtiis metu et deceptui dolo pro^
the courtoffefiionln Scotland, and every " mij'erit F quae quidem phrumque jure
other jurifdidtion in Europe of which " praetorio libirantury jionnulla UgiJ/uft'"
yip have any tolerable account, found all QiHc* /. I>
13ra6lonj
Ch. 4. Wrongs. 5<)
Brafton ^^ as a thing contrafled to ftrict law, yet neither in
that writer, nor in Glanvil or Fleta, nor yet in Eritton, (com-
pofed under the aufpiccs and in the name of Edward I, and
treating particularly of courts and their feveral jurifdilions,)
is there a fyllable to be found relating to the equitable jurif-
dilion of the court of chancery. It feems therefore probable,
that when the courts of law, proceeding merely upon the
ground of the king's original writs, and confining themfelves
ftridtly to that bottom, gave a harfti or imperfeft judgment,
the application for redrefs ufed to be to the king in perfon
afiifted by his privy council j (from whence alfo arofe the jurif- [51 J
didlion of the court of requeftsh, which was virtually abolifh-
edby the ftatute 16 Car. I. c. 10.) and they were wont to refer
the matter either to the chancellor and a felel committee, or
by degrees to the chancellor only, who mitigated the feverity
or fupplied the defedls of the judgments pronounced in the
courts of law, upon weighing the circumftances of the cafe.
This was the cuftom not only among our Saxon anceftors, be-
fore the inftitution of the aula regia'^, but alfo after it's diflb-
lution, in the reign of king Edward I ^i and perhaps during
it's continuance, in that of Henry II'.
In thefe early times the chief judicial employment of the
chancellor muft have been in devifing new writs, directed to
the courts of common law, to give remedy in cafes where
none was before adminiftered. And to quicken the diligence
of the clerks in the chancery, who were too much attached
to antient precedents, it is provided by ftatute Weftm. 2.
13 Edw. I. c. 24. that " whenfoever from thenceforth in
** one cafe a writ fliall be found in the chancery, and in a
6 /. c. "] fol- 23* monwealth. b. 3. c. 7.)
'' The matters cognizable in this ' A^ma ad ngem appellet pro al'tqua
court, immediately before it's diflblu- lite, n'lfi jut doml cenfequi ncn foffit. Si
tion, were " almoft all fuits, that by jus tiimis feverum ft, alU-viatlt diinde
" colourof equity, or fupplication made quaeratur apud regcm. LL. Edg. c, z,
*' to the prince, might be brought be- * Lambard. jirchehn. 59.
" fore hitn : but originally and proper- ' Johannes Sarifburlenfis (who died
*' ly all poor men's fuits, which were ji. D. 1182, 26 Hen. II.) fpeaking of
<< mads to his majefty by fupplication ; the chancellor's office in the verfes pre-
" and upon which they were entitled to fixed to his f>clycraticon, has thefe lines:
** have right, without payment of any Hie eft, qui leges regni cancellat iniquas,
* money for the fame." "(Smith's cona- Et mandata pit principh aequo facit.
" like
51 Private Book III.
* like ""cafe falling under the fame right and requiring like re-
** medy no precedent of a writ can be produced, the clerks
" in chancery (hall agree in forming a new one: and, if
** they cannot agree, it fhcili be adjourned to the next par-
** liament, where a writ (hall be framed by confent of the
" learned in the law"", left it happen for the future, that the
** court of our lord the king be deficient in doing juftice to
C 52 3 " *^^ fuitors." And this accounts for the very great variety
of writs of trefpafs on the cafe, to be met with in the regifter;
whereby the fuitor had ready relief, according to the exi-
gency of his bufmefs, and adapted to the fpeciaky, reafon,
and equity of his very cafe ". Which provifion (with a little
accuracy in the clerks of the chancery, and a little liberality
in the judges, by extending rather than narrowing the reme-
dial effeds of the writ) might have efFedlually anfwercd all
the purpofes of a court of equity*'; except that of obtaining
a difcovery by the oath of the defendant.
But when, about the .end of the reign of king Edward III.
ufes of land were introduced?, and, though totally difcoun-
tenanced by the courts of common law, were confidered as
fiduciary depofits and binding in confcience by the clergy,
the feparate jurifdilion of the chancery as a court of equity
began to be eftablilhedi; and John Waltham, who was
bilhop of Salifbury and chancellor to king Richard II, by a
drained interpretation of the above mentioned (latute of
Weftm. 2. devifed the writ oi fubpoena^ returnable in the
court of chancery only, to make the feoffee to ufes account-
able to his cejliiy que ufe : which procefs was afterwards ex-
tended to other matters wholly determinable at the common
law, upon falfe and fictitious fuggeftions; for which therefore
the chancellor himfelf is by ftatute 1 7 Ric. II. c. 6. directed to
give damages to the party unjuftly aggrieved. But as the
clergy, fo early as the reign of king Stephen, had attempted
" A great variety of new preccJents of " he) nejerroit my cy jwenttment uje torn*
writs, in cafes before unprovi>;ed for, arc " \l tfi ore,finbut attetid'ymui tiels affiant
given by this very ftatute of Weftm. 2. " fur Its cafes, et mainteinomui lejurifdkm
" Lamb. Aicheicn. 61. " tion de ceo court, et d" auttr courti,''*
"This was the opinion of Fairfax, (Yearb. x\ Edw JF. z^.)
a very learned judge in the time of Ed- P Sec booic II. ch. 20.
ward the fourth. *' Le fui>foctia {hy% < Spcim. CUJJ'. ic6, i Lev. 24Z>
to
Ch. 4 Wrongs. 52
to turn their ecclefiaftical courts into courts of equity, by en-
tertaining fuits pro laefione jidei^ as a fpiritual offence againft
confcience, in cafe of non-payment of debts or any breach of
civil contrails ; till check:d by the conflitutions of Cla-
rendon % which declared chat, *'*' placita de dehttis.^ que f.de in-
** ierpoftta debenture vel abfque interpojttione jidei,ftnt iti jtijlicia
** regis ." therefore probably the ecclefiaftical chancellors, [ 53 1
who then held the feal, were remifs in abridging their own
new-acquired jurifdidlion ; efpecially as the fpiritual courts
continued' to grafp at the fame authority as before, in fuits
pro laefione fideit fo late as the fifteenth century", till finally
prohibited by the unanimous concurrence of all the judges. ^
However, it appears from the parUament rolls ^^ that in the
reigns of Henry IV and V the commons were repeatedly urg-
ent to have the writ oifubpoena entirely fuppreffed, as being
a novelty devifed by the fubtilty of chancellor Waltham,
againft the form of the common law ; whereby no plea could
be determined, unlefs by examination and oath of the parties,
according to the form of the law civil, and the law of holy
church, in fubverCon of the common law. But though
Henry IV, being then hardly warm in his throne, gave a
palliating anfwer to their petitions, and actually paffed the
ftatute 4 Hen. IV. c. 23. whereby judgments at law are de-
clared irrevocable unlefs by attaint or writ of error, yet his
fon put a negative at once upon their whole application : and
in Edward IV's time, the procefs by bill and fubpoena was
become the daily pradlice of the court*.
LordLytte)t.Hen.II.b.3.p.36i.not. though in Lyndewode's copy, Prev. I,
10 Hen. II. c. 15. Speed. 458. 2. /. 2) and in the Cotton MS. ^C/aa^,
' In 4 Hen. III. fuits in court chrif- D. 2.) that claufe is onnitted.
thn fro laefione fidei M^on temporal con- " Yearb. 2 Hen. 11^. 10. 11 Hen.
tradls were adjudged to be contrary to W. 88. 38 Hen. VI. 29. 20 EJiv,
law. (Fitzh. Abr. t. Prcbibiiion. 15.) IV. lo.
But in the ftatute or wthof drcumffefJe * Rot. Pari. 4 Hen. IV. n" 78 &
gails, fuppofed by fome to have ilTued 110. 3 Hen. V. n 46. cited in Prynne's
13 Edw. 1. but more probably (3 Pryn. abr. of Cotton's records. 410. 422. 424.
Rec. 336.) 9 Edw. II. Ma pro laejione 548. 4ln(l. 83. i Roll. Abr. 370,
fdei were allowed to the ecclefiaftical 371, 372.
courts; according to fome ancient copies, * Rot. Pari. i\ Edw. IV. 33.
(Berthelety?<jf. antiqu. Lond. 1 531. 90. A. (not 14 FJiu. HI. as cited i Roll. Abr.
3 Pryn. Rec. 336.) and the common 370, (^c)
Enjli/h traoflation, of that ftatute;
3
But
53 pRrvATE Book III.
But this did not extend very far : for in the antient trea-
tife, entitled diverfite des courtes y, fuppofed to be written very
early in the fixteenth century, we have a catalogue of the
matters of confcicnce then cognizable hyfubpoena in chancery,
t 54 3 which fall within a very narrow compafs. No regular judicial
fyftem at that time prevailed in the court ; but the fuitor,
when he thought himfelf aggrieved, found a defultory and
uncertain remedy, according to the private opinion of the
chancellor, who was generally an ecclefiaftic, or fometimes
(though rarely) a ftatefman : no lawyer having fate in the
court of chancery from the times of the chief juftices Thorpe
and Knyvet, fuccefiively chancellors to king Edward III in
1372 and 1373^5 to the promotion of fir Thomas More by
king Henry VIII in 1530. After which the great feal was
indifcriminately committed to the cuftody of lawyers, or
courtiers % or churchmen'', according as the convenience of
the times and the difpofition of the prince required, till
ferjeant Puckering was made lord keeper in 1592: from
which time to the prefent the court of chancery has always
been filled by a lawyer, excepting the interval from 1621 to
1625, when the feal was intruded to Dr. Williams, then
dean of Weftminfter, but afterwards bifhop of Lincoln ; who
had been chaplain to lord Ellefmere, when chancellor'^.
In the time of lord Ellefmere (A. D. 1616.) arofethat
notable difpute between the courts of law and equity, fet on
foot by fir Edward Coke, then chief juftice of the court of
king's bench ; whether a court of equity could give relief
after or againft a judgment at the common law. This conteft
was fo warmly carried on, that indilments were preferred
againft the fuitors, the folicitors, the counfel, and even a
mafter in chancery, for having incurred a praemiin'irey by
queftioning in a court of equity a judgment in the court of
king's bench, obtained by grofs fraud and impofition '. This
matter being brought before the kit)g, was by him referred
to his learned counfel for their advice and opinion; who re-
y t'tt, chancery. Jul, 296. RaftelFs * Wriothcfly, St. John, and Hattoq,
edit. A.D. I534. *" Goodrick, Gardiner, and Heath,
N Spelm. G7o^; m, Dugd. cbroti, '^ Biogr. Brit. /^i-j%.
Str, 50. " Bacon'sWorks. IV.6ii,6ii- 6^2-
ported
Ch. 4. Wrongs.^ 54
ported fo flrongly in favour of the courts of equity *, that his
majefty gave judgment on their behalf: but, not contented
with the irrefragable reafons and precedents produced by his
counfcl, (for the chief juftice was clearly in the wrong,) he
chofe rather to decide the queftion by referring it to the pie- [ 55 3
nitude of his royal prerogatize *^. Sir Edward Coke fub-
mitted to the decifion s, and thereby made atonement for his
error : but this ftruggle, together with the bufinefs of comment
dams (in which he zttA a very noble part\ and his control-
ling the commiflioners of fewersS were the open and avowed
caufes'', firft of his fufpenfion, and foon after of his removal,
from his ofHce.
Lord Bacon, who fucceeded lord Ellefmere, reduced the
praflice of the court into a more regular fyftem ; but did not
lit long enough to effeft any confiderable revolution in the
fcience itfelf: and few of his decrees which have reached us
are of any great confequence to pofterity. His fucceflbrs, in
the reign of Charles I, did little to improve upon his plan :
and even after the reftoration the feal was committed to the
carl of Clarendon, who had withdrawn from practice as a
lawyer near twenty years; and afterwards to the earl of
Shaftefbury, who (though a lawyer by education) had never
Wbicelocke of pari. ii. 390. i in a memorial to h's majefty, declaring
Chan. Rep. append. 11. that their compliance would be contrary
' " For that it appertaineth to our to their oaths and the law : but upon be-
*< princely office only to judge over all ing brought before the king and council,
judges, and to difcern and determine they all retrafted and promifed obedi-
<' fuch differences, as at any time may cnce in every fuch cafe for the future;
*' and fliall arife between our feveral except fir Edward Coke, who faid << that
** courts touching their jurifdidlions, *' when the cafe happened he would da
*' and the fame to fettle and deteimine, " his duty." ( Dlogr. Brit. 1388.)
* as we in our princely wifdom fliall find * See that article in chap. 6.
* to ftand moft with our honour, &c." ^ See lord Eliefmcre's fpeech to fir
(1 Chanc. Rep. append. a6.) Henry Montague, thenew chief juftice,
6 See the entry in the council book, 15 Nov. 1616. (Moor's reports. 828)
a6 July, 1616. (Bkgr. Brit. 1390.) Though fir Edward might probably have
" In a caufe of the bifliopofWinchef- retained his feat, if, during his fufpen*
ter, touching a commindam, king James fion, he would have complimented lord
conceiving that the matter aftcfled his Villiers (the new favourite) with the
prerogative, fcnt letters to the judges not difpofal of the moft lucrative office in
to proceed in it, till himfclf had been hie COUrt. (Biogr. Biit, i^^i.)
fixCt confulted. The twelve judgts joined
pra^ifci
55 Private Book III.
pra6tifed at all. Sir Heneage Finch, who fucceeded in 1673,
and became afterwards earl of Nottingham, was a perfon of
[ 56 ] the greateft abilities and mod uncorrupted integrity ; a
thorough mafler and zealous defender of the laws and confti-
tution of his country, and endued with a pervading genius,
that enabled him to difcover and to purfue the true fpirit of
juftice, notwithftanding the embarraflments raifed by the
narrow and technical notions w^hich then prevailed in the
courts of law, and the imperfedl ideas of redrefs which had
pofiefled the courts of equity. The reafon and neceffitles of
mankind, arifing from the great change in property by the ex-
tenfion of trade and the abolitionof military tenures, co-operat-
ed in eftabllfhing his plan, and enabled him in the courfe of
nine years to build a fyflem of jurifprudence and jurifdiftion
upon wide and rational foundations ; which have alfo been
extended, and improved by many^great men, who have fince
prefided in chancery. And from that time to this, the power
and bufinefs of the court have increafed to an amazing degree.
From this court of equity in chancery, as from the other
fuperior courts, an appeal lies to the houfe of peers. But there
are thefe differences between appeals from a court of equity,
and writs of error from a court of law: i.That the former may
be brought upon any interlocutory matter, the latter upon no-
thing but only a definitive judgment : a.That on writs of error
the houfeof lords pronounces the judgment,on appeals it gives
direction to the court below to reftify it's own decree.
IX. The next court that I fliall mention is one that hath no
original jurifdiflion, but is only a court of appeal, to correal
the errorsof otljer jurifdilions. This is the court of exchequer
chambers which was firft eredled by ftatute 31 Edw.III.c. 12.
to determine caufes upon writs of error from the common law-
fide of the court of exchequer. And to that end it confifts of
the lord chancellor and lord treafurer, taking unto him thc-
juftices of the king's bench and commonpleas. In imitation
of which, a fecond court of exchequer chamber was eredted by
ftatute 27Eliz. c. 8. confifting of the juftices of the common
C 57 3 pleas, and the barons of the exchequers before whom writs
of
Ch. 4. Wrongs. 57
of error may be brought to reverfe judgments in certain fuits*
originally begun in the court of king's bench. Into the court
alfo of exchequer chamber, (which then confifts of all the
judges of the three fuperior courts, and now and then the
lord chancellor alfo,) are fometimes adjourned from the other
courts fuch caufes, as the judges upon argument 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 chamber,
a writ of error lies to
X. The houfe of peers; which is the fupreme court of judi-
cature in the kingdom, having at prefent no original jurifdic-
tion over caufes, but only upon appeals and writs of error, to
reftify any injuftice or miftake of the law, committed by the
courts below. To this authority this auguft tribunal fucceeded
of courfe upon the difiblution of the aula regia. For, as the
barons of parliament were conftituent members of that court ;
and the reft of it's jurifdiftion was dealt out to other tribunals,
over which the great officers who accompanied thofe barons
were refpelively delegated to prefide ; it followed, that the
right of receiving appeals, and fuperintending all other juriC-
dilions, ftill remained in the refidue of that noble afl'embly,
from which every other great court was derived. They are
therefore in all caufes the laft refort, from whofe judgment
no farther appeal is permitted; but every fubordinate tribunal
muft conform to their determinations : the law repofing an
entire confidence in the honour and confcience of the noble
perfons who compofethis important aflembly, that (if poffible)
they will make themfelves mafters of thofe queftlons upon
which they undertake to decide, and in all dubious cafes refer
themfelves to the opinions of tlie judges, who are fummoned
by writ to advife them ; fince upon their decifion all property
muft finally depend.
Hitherto may alfo be referred the tribunal eftablrfhed by p -o t
ftatute 14 Edw. III. c. 5. confifting (though now out of ufe)
of one prelate, two earls,and two barons, who are to be chofen
at every new parliament, to hear complaints of grievances and
delays of juftice in the king's courts, and (with the advice of
.' See ch. 2$. pag. 411. ."> 4 Inft. 119. a BulAr. 146.
the
^i Private Book IIIi
the chancellor, treafurer, and jufllces of both benches) to give
direftions for remedying thefe inconveniences in the courts
below. This committee feems to have been eftablifhed, left
there {hould be a defel of juftice for want of a fupreme court
of appeal, during any long intermiflion or recefs of parliament*,
for the ftatute farther direds, that if the difficulty be fo great,
that it may not well be determined without afient of parlia-
ment, it fhall be brought by the faid prelate, earls, and barons
/ unto the next parliament) who (hall finally determine the fame.
XL Before I conclude this chapter, I muft alfo mention
an eleventh fpecies of courts, of general jurifdidlion and ufe,
which are derived out of, and a6l as collateral auxiliaries to,
the foregoing ; I mean the courts of affife and nift priiis.
These are compofed of two or more commiffioners, who
are twice in every year fent by the king's fpecial commiflion
all round the kingdom, (except London and Middlefex, where
courts oinlft prius are holden in and after every term, before
the chief or other judge of the feveral fuperior courts(7) ; and
except the four northern counties, where the aflifes are holden
only once a year,)to try by a jury of the refpedtive counties the
truth of fuch matters of fadt as are then under difpute in the
courts of Weftminfter-hall. Thefe judges of affife came into
(7) The courts of //f^r/j in London and Middlefex are called
Jluings, and thofe for Middlefex were eftablifhed by the legiflature
in the reign of queen Elizabeth. In antient times all fffues in
adlions brought in that county were tried at Wellminller in the
terms, at the bar of the court in which the aftion was inflituted;
but when the bufinefs of the courts incrcafed, thefe trials were found
fo great an inconvenience, that it was enafted by the 18 Eliz. c. 12.
that the chief juftice of the king's bench fhould be empowered to
try within the term, or within four days after the end of the term,
all the iffues joined in the courts of chancery and king's bench; and
that the chief juftice of the common pleas, and the chief baron,
fhould try in like manner the iffues joined in their refpeftive courts*
In the abfence of any one of the chiefs, the fame authority was
given to two of the judges or barons of his court. The ftatute
12 Geo. I. c. 31. extended the time to eight days after teim, and
empowered one judge or baron to fit in the abfence of the chief.
The 24 Geo. II. c. 18. has extended the time after term Hill far-
ther to fourteen days.
Ch. 4. Wrongs. 58:
ufe in the room of the ancient juftices in tyre^jujTidarU initi'
nere; who were regularly eftablifhed, If not firft appointed, by
the parliament of Northampton, A. D. 117^, 22 Hen. II",
with a delegated power from the king's great court or aula
regioy being looked upon as members thereof : and they after-
wards made their circuit round the kingdom once in feven
years for the purpofe of trying caufes . They were after- [ S9 1
wards diredled by magna carta^ c. 12. to be fent into every
county once a year, to take (or receive the verdicl of the
jurors or recognitors in certain anions, then called) recogni-
tions or aflifes ; the moft difficult of which they are direcSled
to adjourn into the court of common pleas to be there deter-
mined. The itinerant juftices were fometimes mere juftices
of aflize, or of dower, or of gaol- delivery, and the like ; and
they had fometimes a more general commifllon, to determine
all manner of caufes, being coniiit\itedjt//iiciarii ad omnia p/a~
eita P . but the prefent juftices of aflife and ntfiprlus are more
immediately derived from the ftatute Weftm. 2. 13 Edw. I.
c. 30. which direfts them to be afligned out of the king's
fworn juftices, aflbciating to themfelves one or two difcreet
knights of each county. By ftatute 27 Edw. I. c. 4. (ex-
plained by 12 Edw. II. c. 3.) aflifes and inquefts were
allowed to be taken before any one juftice of the court in
which the plea was brought ; aflbciating to him one knight
or other approved man of the county. And, laftly, by
ftatute 14 Edw. III. c. 16. inquefts of nifi prius may be taken
before any juftice of either bench, (though the plea be not
depending in his own court,) or before the chief baron of the
exchequer, if he be a man of the law ; or otherwife before
the juftices of aflife, fo that one of fuch juftices be a judge of
the king's bench or common pleas, or the king's ferjeant
fworn. They ufually make their circuits in the refpetive -
Seld. Jan. I. z. 5. Spelm. Cod. feptem ar.m notidum erani elafji, foji-
3*9 ^ quam jujliciarn ibidem ultimo Jedtrunt,
Co, L-tt, 293 /4nflO ia6i jujlici- (Annal. Ecd. IVigorn. in IVhart. AngK
arii itintrantet vcnerunt aptid Wigortiiam facr. I. ^^^.)
iniHavis S. yobannis bapti/Joe-^-^t tctus' P Brad! I. 3. tr. i. c. tt.
comitatui ens admUtere rctujavit, quod
Vol.. III. F vacations
59 P R r V A T s Book III.
vacations after Hilary and Trinity terms ; aflifes being al-
lowed to be taken in the holy time of lent by confent of the
bi{hops at the king's requeft, as exprefled in ftatute Weftm. i.
3 Edw. I. c. 51. And it was alfo ufual, during the times
of popery, for the prelates to grant annual licences to the
juftices of affife to adminiller oaths In holy times: for oaths
being of a facred nature, the logic of thofe deluded ages con-
[ <5o ] eluded that chey muft be of ecclefiaftical cognizance i. The
prudent jealoufy of our anceftors ordained,"", that no man of
law fliould be judge of aflife in his own country, wherein
he was born or doth inhabit (B) : and a fimilar prohibition
is found in the civil law % which has carried this principle
fo far, that it is equivalent to the crime of facrilege, for a
man to be governor of the province in which he was born,
or has any civil connexion'.
The judges upon their circuits now fit by virtue of five
feveral authorities, i . The commidion of the peace. 2. A,
commiffion of oyer and terminer. 3. A commifTion of general
gaol delivery. The confideration of all which belongs properly
to the fubfequent book of thefe commentaries. But the fourth
commiffion is, 4. A commiffion of affife^ direled to the jufti-
ces and ferjeants therein named, to take (together with their
affiDciates) affifes in the feveral counties ; that is, to take the
verdict of a peculiar fpecies of jury, called an affife and fum-
moned for the trial of landed difputes, of which hereafter.
The other authority is, 5 . That of nift priusy which is a con-
1 Inftances hereof may be" met with "" Stat, 4 Edw. III. c. a. S Rich. II.
in the appendix to.Spelman's original of c. a. 33 Hen. VIII. c. 24,
the terms, and in Mr. Parker's Anti- Ff. i. 22. 3.
quities, 209. ' C. 9. 29. 4.
( 3 ) This rcflridlion was conftrued to extend to every commiflioa
of the judges ; but It being found very inconvenient, the 12 Geo.
TI. c. 27. was enafted for the exprefs purpofe of authorizing the
commliTioners of oyer and terminer, and of gaol delivery, to execute
their comraiffions in the criminal courts within the counties in which
they were born, or In which they refide. See 4 vol. 371.
fequence
Ch. 4' Wrongs. 6o
fcquence of the comminion of aji/e^'y being annexed to the
office of thofe jufticesby the ftatute of Weftm. 2. 13 Edw. I.
c. 30. and it empowers them to try all queftions of fat
ifluing out of the courts at Weftminfterj that are then ripe
for trial by jury. Thefe by the courfe of the courts^ arc
ufually appointed to be tiried at Weftminfter in fome Eafter
or Michaelmas term, by a jury ireturned fronf the county
therein the caufe of alion arifeS; but with this provifo*
fij/i priiiSy unlefs before the day prefixed the judges of aflTifc
come into the county iri queftion. This they are fure to do
in the vacations preceding each Eafter and Michaelmas term^
which faves much expenfe and trouble. Thefe corainiffions
are conftantly accompanied by writs of njjociatiohy in piirfuance
of the ftatutes of Edward I aiid II before mentioned; whereby [ 59* ^
certain perfons (ufually the clerk of afTife and his fubordinate
officers) are direl6d to afTociate themfelves with the jufticeS
and ferjeants, and they are required to admit the fa id perfons
into their fdciety, in order to take the affifes, &c.; that a fuf-
ficient fupply of commiflioners may never be wanting. But>
to prevent the delay of juftice by the abfence of any of them,
there is alfo iffiied of courfe a writ of^ mn ojnnes ; direftingj
that if all cannot be prefent, any two of them (a juftice or
/erjeant being one) may proceed to execute the eommiffion.
These are the feveral courts of common law and equity^
Virhich are of public and general jurifdiftion throughout the
kingdom. And, upon the whole, we cannot but admire thd
wife economy and admirable provifioh of our anceftors, in
fettling the diftributlon of juftice In a method fo well calcu-
lated for cheapnefs, expedition, and cafe. By the conftitu-
tion which they eftablifhed, all trivial debts, and injuries o
fmall confequcnce, were to be recovered or redrelTcdin every
man^s own county, hundred, or perhaps parifli. Pleas o
freehold, and more Important difputes of property, were ad-
journed to the king's court of common pleas, which was fixed
in one place for the benefit of the whole kingdom; Crimes
; Salk, 454. * See cfa. aj. pif. 353.
59* Private Book III.
and mifdemefnors were to be examined in a court by them-
felves ; and matters of the revenue in another diflindl jurif-
dition. Now, indeed, for the eafe of the fubjecl and greater
difpatch of caufes, methads have been found to open all the
three fuperior courts for the redrefs of private wrongs; which
have remedied many inconveniences, and yet preferved the
forms and bondaries handed down to us from high antiquity.
If fafts are difputed, they are fent down to be tried in the
country by the neighbours ; but the law, arifing upon thofe
fafts, is determined by the judges above : and, if they are
miftaken in point of law, there remain in both cafes two fuc-
celTive courts of appeal, to reHfy fuch their miftakes. If the
rigour of general rules does in any cafe bear hard upon indi-
viduals, courts of equity are open to fupply the defedls, but
not fap the fundamentals, of the law. Laftly, there prefides
6 Co* ] over all one great court of appeal, which is the laft refort in
matters both of law and equity j and which will therefore
take care to preferve an uniformity znd aequilitrium among all
the inferior jurifdidlions: a court compofed of prelates feleft-
cd for their piety, and of nobles advanced to that honour for
their perfonal merit, or deriving both honour and merit from
an illuftrious train of anceftors ; who arc formed by their
education, interefted by their property, and bound upon their
confcience and honour, to be Ikilled in the laws of their
country. This is a faithful Iketch of the Englifti juridical
conftitution, as deCgned by the mafterly hands of our fore-
fathers. Of which the great original lines are ftill flrong
and vlfiblej and, if any of its minuter ftrokes are by the?
length of time at all obfcured or decayed, they may ftill be
with eafe reftored to their priftine vigour ; and that not fo
much by fanciful alterations and wild experiments, (fo fre-
quentin this fertile age,) as by clofely adhering to the wifdom
of the ancient plan, concerted by Alfred and perfefted by
Edward I ; and by attending to the fpirit, without negledt-
ing the forms, of their excellent and venerable inftitutioaa.
-Ch. 5. Wrongs. 61
CHAPTER THE FIFTH.
OF COURTS ECCLESIASTICAL, MILI-
TARY, AND MARITIME.
BESIDES the feveral courts which were treated of in
the preceding chapter, and in which all injuries are re-
drefled, that fall under the cognizance of the common law
of England, or that fpirit of equity which ought to be it's
conftant attendant, there dill remain fome other courts of
a jurifdillon equally public and general : which take cogni-
zance of other fpecies of injuries, of an ecclefiaftical, mili-
tary, and maritime nature; and therefore are properly diftin-
guiflied by the title of ecclefiaftical courts, courts military,
and courts maritime.
I. Before I defcend to confider particular ecclefiaftical
courts, I muft firft of all in general premife, that in the time
of our Saxon anceftors there was no fort of diftindlion be-
tween the lay and the ecclefiaftical jurifdidlion: the county
court was as much a fpiritual as a temporal tribunal : the
rights of the church were afcertained and aflTerted at the fame
time, and by the fame judges, as the rights of the laity. For
this purpofe the biftiop of the diocefe, and the alderman, or
in his abfence the ftierifF of the county, ufed to fit together
in the county court, and had there the cognizance of all
caufes as well ecclefiaftical as civil : a fuperior deference be-
ing paid to the bifliop's opinion in fpiritual matters, and to
that of the lay judges in temporal*. This union of power
was very advantageous to them both : the prefcnce of the
* CtUherrimo hu'ic conventui ep\Jcopui jura lilvifm, alter bumana fofu/um eJccett*
tt aldtrmannut initrfunit ; quitutn alter Lh, Eadgar, (, ^.
F 3 biftiop
62 P R I V A T it Book III,
blfliop added weight and reverence to the (herifF's proceed-
ings; and the authority of the ftierifF was equally ufeful tq
the bifhop, by enforcing obedience to his decree in fuch re?
fralory off;inders, as would ctherwife havg defpifed the
thunder of mere ecclefiaftical cenfures.
But fo moderate and rational a plan was wholly incon-
fiftent with thofe views of ambition that were then forming
by the court of Rome. It foon became an ettablifhed maxim
in the papal fyftem of policy, that all ecclefiaftical pcrfons
and all ecclefiaftical caufes fhould be folely and entirely fub-
jel to ecclefiaftical jurlfdiftion only: which jurifdiftipn was
fuppofed to be lodged in the firft place and immediately in
the pope, by divine indefeafible right and inveftiture from
Chrift himfelf ; and derived from the pope tp all inferior tri-
bunals. Hence the canon law lays it down as a rule, that
^^ facerdotes a regibus honor andi funt^ uon jud'uand't^ \^* and
places an emphatical reliance on a fabulous tale which it tells
of the emperor Conftantine : that when fome petitions were
brought to him, imploring the aid of his authority againft
certain of his bifhops, accufed of oppreffion and injuftice,
he caufed (fays the holy carbon) the petitions to be burnt in
their prcfence, difmifling them with this valedidion ; *' ite
*' et ititer vos caufas vefcras difcutiie, quia dignum non ejl ut uos
** judicemus Deos '^."
It was not however till after the Norman conqueft, that
this dolrine was received in England ; when William I.
(whof-^ title was warmly efpoufed by the monafteries which
he liberally endow^ed, and by the foreign clergy, whom he
brought over in fhoals from France and Italy and planted in
the beft preferments of the Englilh church) was at length
prevailed upon to eftablifh this fatal incroaehment, and fe_
parate the ecclefiaftical court from the civil : whether actu-
ated by principles of bigotry, or by thofe of a more refined
policy, in order to difcountenance the laws of king Edward
j^bounding with the fpirit of ilaxon liberty, is not altogether
l Deere:, part, 2. cauf. 1 1, yw. I, c. 41. * Itid.
certain.
Ch. 5. Wrongs, 63
certain. But the latter, if not the caufe, was undoubtedly
the confcquence, of this feparation : for the Saxon laws were
foon overborne by the Norman jufticiaries, when the county
court fell into difregard by the bifliop's withdrawing his pre-
fence, in obedience to the charter of the conqueror ** ; which
prohibited any fpiritual caufe from being tried in the fecular
courts, and commanded the fuitors to appear before the
bifliop only, whofe decifions were directed to conform to the
canon law '.
King Henry the firft, at his acceffion, among other refto-
rations of the laws of Jcing Edward the confeflbr, revived this
of the union of the civil and ecclefiaftical courts^ Which
was, according to fir Edward Coke ^, after the great heat of
the conqueft was paft, only a reflitution of the antient law
of England. This however was ill reli(hed by the popifli
clergy, who, under the guidance of that arrogant prelate
archbifliop Anfelm, very early difapproved of a meafure that
put them on a level with the profane laity, and fubjedled fpi-
ritual men and caufes to the infpeQion of the fecular magif-
trates : and therefore in their fynod at Weftminfler, 3 Hen. I.
they ordained that no bidiop (liould attend the difcuflion of
temporal caufes "^ ; which foon di0blved this newly effefted
tinion. And when, upon the death of king Henry the firft,
* HaJc. Hift. C. L. IC2. Selden. in eant ad com'uaiut tt hundreJa, Jicut ftcf
EjJm.p.i. I. 24 4.1nft. 259. Wilk. rint timport regit Edioard'i. (Cart.
LL. Angl. Sax. 192. Hen. I. in SpeJm. cod. -vet. legum. 305.)
' NuUus efijcopus vel arcbldiaconut de And what is here obfcurely hinted at, is
itgibus ffifcopalibut ampUm in hundret fully explained by his code of laws extant
flacita ttneant, nee caujam quae ad regimen in the red book of the exchequer, though
animarum fertinet ad judicium fecularium in general but of doubtful authority,
hominum adducant : Jed quicunque fecun- cap. i. Ceneralia comitatuum placka ctitit
dum tpifctpalei leges, de quacunque cnuja hcit et vicihus teneantur. hiterfint autcm
vel culpa interptltatui fuerit, ad hcutHy epifcopi, comitei, &c. j et aganlur print*
quim ad btc efifcepus clegerit et tiomiva- debita vtrae chiijiianitatit jura, Jecundo
vent , vcniat \ ibique de caufa fua refpcm- regis plucita, pojlremo caujac Jinguhrutn
dtat; tt non fecundum hundret, Jed fecuti- dignis JatitfaSiionibta exfleantuft
Jum eavones et epijiopales leges, rtBum > 2 Inft. 70.
Pea et epijcopo Juo fadat . ^ Nt epijcap't Jaecular'ium placittrum
f yth et prat(ipio) ut Qiruia dt cemltalu cffidumjujcipiant, Spelm. Cot/, jor.
F4 the
64 Private Book III.
the ufurper Stephen was brought in and fupported by the
clergy, we find one article of the oath which they impofed
upon him was, that ecclefiaftical perfons and ecclefiaftical
caufes fhould be fubjeft only to the bifliop's jurifdilion*.
And as it was about that time that the conteft and emulation
began between the laws of England and thofe of Rome ^,
the temporal courts adhering to the former, and the fpiritual
' adopting the latter as their rule of proceeding, this widened
the breach between them, and made a coalition afterwards
impracticable ; which probably would elfe have been effected
at the general reformation of the church.
In briefly recounting the various fpecies of ecclefiaftical
courts, or, as they are often filled, courts chriftian, (curiae
chrijiianitatisy ) I fhall begin with the lowefl:, and fo afcend
gradually to the fupreme court of appeal '.
1 . The archdeacon^s court is the mofl. inferior court in the
whole ecclefiaftical polity. It is held in the archdeacon's ab-
fence before a judge appointed by himfelf, and called his offi-
cial : and it's jurifdilion is fometimes in concurrence with,
fometimes in exclufion of, the bifliop's court of the diocefe.
From hence however by ftatute 24 Hen. VIII. c. 12. an ap-
peal lies to that of the bifhop.
2. The conjijiory court of every diocefan bifliop is held In
their feveral cathedrals, for the trial of all ecclefiaftical caufes
arifing within their refpetive diocefes. The biftiop's chan-
cellor, or his commiflary, Is the judge ; and from his fen-
tence an appeal lies, by virtue of the fame ftatute, to the
archbifliop of each province refpeftively.
3. The court of arches is a court of appeal belonging to
the archbifliop of Canterbury -, whereof the judge is called
r 6c 3 the dean of the arches ; becaufe he anciently held his court in
i ii'tii^ 210. ecchfiafiical law, Wood's injlltute of the
' See Vol.1, introd. I. commsit laWfUai Oughton's cr^e j</i-
' For farther particulars fee Burn's cic/rum,
8 the
Gh. 5. Wrongs. 65
the church of St. Mary le bow, (JanEia Maria ds arcuhiis^)
though all the principal fpiritual courts are now holden at
dodtors* commons. His proper jurifdidlion is only over the
thirteen peculiar pariflies belonging to the archbilhop in Lon-
don ; but the office of dean of the arches having been for a
long time united with that of the archbiftiop's principal offi-
cial, he now, in right of tlie lad mentioned office, (as doth
alfo the official principal of the archbifhopof York,) receives
and determines appeals from the fentences of all inferior
ecclefiaftical courts within the province. And from him ati
appeal lies to the king in chancery i^that is, to a court of
delegates appointed under the king's great feal) by ftatutc
.25 Hen. VIII. c. 19. as fupreme head of the Engliffi church,
in the place of the bifiiop of Rome, who formerly exercifed
this jurifdilion; which circumftance alone will furniffi the
reafon why the popifh clergy were fo anxious to feparate the
fpiritual court from the temporal.
4. The court of peculiars is a branch of and annexed to
the court of arches. It has a jurifdilion over all thofe pariflies
difperfed through the province of Canterbury in the midft of
other diocefes, which are exempt from the ordinary's jurif-
diclion, and fubjedt to the metropolitan only. All ecclefi-
aftical caufes, arifing within thefe peculiar or exempt jurif-
diftions, are, originally, cognizable by this court , from
which an appeal lay formerly to the pope, but now by the
flatute 25 Hen. VIII. c. 19. to the king in chancery.
5. The prerogative court is eftablifhed for the trial of all
teftamentnry caufes, where the deceafed hath left bona nota^
bilia within two different diocefes. In which cafe the pro-
bate of wills belongs, as we have formerly feen"', to the
archbifhop of the province, by way of fpecial prerogative.
And all caufes relating to the wills, adminiftratlons, or lega-
cies of fuch perfons are, originally, cognizable herein, be-
fore a judge appointed by the archbifliop, called the judge
pf the prerogative court ; from whom an appeal lies by [ 66 1
Book II. cb. 32.
ftatutc
66 Private Book III,
ftatute 25 Hen. VIII. c. 19. to the king In diancery, in-
ftead of the pope as formerly.
I PASS by fuch eeclefiaftical courts, as have only what is
called a voluntary, and not a contentious ^ jurifdidtion ; which
are merely concerned in doing or felling what no one oppofes,
and which keep an open ofHce for that purpofe, (as granting
difpenfatioHs, licences, faculties, and other remnants of the
papal extortions,) but do not concern themfelves with admi>
niflring redrcis to ai>y injury : and fliall proceed to
6, The great court of appeal in all ecclefiaftical caufes,
viz, the Qourt of delegates^ judices Jelegatiy appointed by the
king's commifllon under his great feal, and ilfulng out of
chancery, to reprefent his royal perfon, and hear all appeals
to him made by virtue of the before-mentioned fkatute of
Henry VIII. This commlfRon is frequently filled with lords,
fpiritual and temporal, and always with judges of the courts at
Wcftminfter, and do6ior& of the civil law. Appeals to Rome
were always looked upon by the Engliili nation, even in the
times of popery, with an evil eye ; as being contrary to the
liberty of the fubject, the honour of the crown, and the indcr
pendence of the whcrfe realm ; and were iirfl introduced in
very turbulent times in the fixteenth year of king Stephen
(A,D. 1 151.) at the fame period (fir Henry Spelman ob-
ferves) that the civil and canon laws were firft imported into
* England ". But, in a few years after, to obviate this grow^
ing pralice, the conftitutions made at Clarendon, 1 1 Hen. II.
on account of the difturbances raifed by archbiihop Becket
and other zealots of the holy fee, exprefsly declare ", that ap-
peals in caufes ecclefiaftical ought to lie, from the archdeacon
to the diocefan ; from the diocefan to the archbifliop of the
province J and from the archbifliop to the king , and are not to
proceed any farther without fpecial licence from the crown.
But the unhappy advantage that was given in the reigns of
king John, and his fon Henry the third, to the encroaching
C ^7 3 power of the pope, who was eyfer vigilant to improve all op*
f Ctd, vit, leg. 315. chap, %.
cortunltlcs
Ch. 5. Wrongs. 67
portunities of extending his jurifdi(Stion hither, at lengtli ri-
veted the cuftom of appealing to Rome in caufes ecclefiaftical
fo ftrongly, that it never could be thoroughly broken off, till
tlie grand rupture happened in the reign of Henry the eighth ;
>vhen all the jurifdidlion ufurped by the pope in matters ee*
clsfiaftical was reftored to the crown, to which it originally
belonged : fo that the ftatute 25 Hen. VIII. was but declara-
tory of the antient law of the realm p. But in cafe the king
himfelf be party in any of thefe fuits, the appeal does not
then lie to him in chancery, which would be abfurd ; but,
by the ftatute 24 Hen, Vlll. c. 12. to all the bilhops of the
realm, aflembled in the upper houfe of convocation (i).
7. A COMMISSION of review is a commiflion fometimes
granted, in extraordinary cafes, to revife the fentence of the
jcourt of delegates; when it is apprehended they have been
led into a material error. This commiflion the king may
grant, although the ftatutes 24 & 25 Hen. VIII. before cited
declare the fentence of the delegates definitive : becaufe the
pope as fuprerne head by the canon law ufed to grant fuch
P 4 Inft. 341.
( I ) No fuch aflembly can exift as all the bifhops of the realm in
any houfc of convocation. But the ftatute fays, tliat the appeal
(hall be to the bifhops, abbots, and priors of the upper houfe of the
convocation of the province, in which the caufe of the fuh arifes.
Therefore in the province of York, the appeal lies now to the arch-
bifhop and his three bifhops. In the province of Canterbury, to
the refl of the bench of bifhops. See i vol. 280. n. 24. When
the delegates are equally divided in opinion, fo that no judgment
can be pronounced, a commiflion of adjunfts may ilTue. See an
inftance referred to in 4 Burr. 2254.
A commilfion of review was applied for in the court of Chan-
jcery in Michaelmas Term 1798, when the chancellor, upon hear,
ng the arguments of civih'ans and barrifters refpefting the judg.
ment of the delegates, determined to recommend to the king to
grant a commiflion of review. It was then faid, that only two
^ad iffued in the prefent century, one In 1705, and another in 1741.
12 commifHon
^7 Private Book III.
commiflion oJF review ; and fuch authority as the pope here-
tofore exerted, is now annexed to the crown '^ by ftatutes
26 Hen. VIII. c. i. and i Eliz. c. i. But it is not matter
of right, which the fubjel may demand ^x debifo jnjiitiae ;
but merely a matter of favour, and which therefore is often
denied.
Theje are now the principal courts of ecclefiaftical jurif-
di^lion ; none of which are allowed to be courts of record :
no more than was another much more formidable jurifdi^lion,
but now defcrvedly annihilated, viz. the court of the king's
high cornmijfion in caufes ecclefiaftical. This court was ereft-
ed and united to the regal power ; by virtue of the ftatute
1 Eliz. c. I. inftead of a larger jurifdiftion which had before
been exercifed under the pope's authority. It was intended
r 68 ] ^^ vindicate the dignity and peace of the church, by reform-
ing, ordering, and correting the ecclefiaftical ftate and per-
fons, and all manner of errors, herefies, fchifms, abufes,
offences, contempts, and enormities. Under the (helter of
which very general words, means were found in that and the
two fucceeding reigns, to veft in the high commlflioners ex-
traordinary and almoft defpotic powers of fining and im-
prifoning ; which they exerted much beyond the degree of
the offence itfelf, and frequently over offences by no means
of fpiritual cognizance. For thefe rcafons this court was
juftly aboliflied by ftatute 16 Car. I. c. 11. And the weak
and illegal attempt that was made to revive it, during the
reign of king James the fecond, ferved only to haften that
infatuated prince's ruin.
II. Next, as to the courts military. The only court of
this kind known to, and eftabllfhed by, the permanent laws
of the land, is the court oi chivalry^ formerly held before the
lord high conftable and earl Marfhal of England jointly ; but
fince the attainder of Stafford duke of Buckingham under
Henry VIII. and the confequent extingulfhment of the ofEce
of lord high conftable, it hath ufually with refped to civil
9 4 Inft. 341. Ibid. 324.
mattery
Ch. 5. Wrongs. 6f
matters been held before the earl marfhal only *. This court
by ftatute 13 Ric. U. c. 2. hath cognizance of contracts and
other matters touching deeds of arms and war, as well out of
the realm as within it. And from it's fentences an appeal
lies immediately to the king in perfon '. This court was ia
great reputation in the times of pure chivalry, and afterwards
during our connexions with the continent, by the territories
which our princes held in France : but is now grown almoft
entirely out of ufe, on account of the feeblenefs of it's jurif-
dilion, and want of power to enforce it's judgments; as it
can neither fine nor imprifon, not being a court of record ".
III. The maritime courts, or fuch as have power and ju-
rifdiclion to determine all maritime injuries, arifing upon the
feas, or in parts out of the reach of the common law, are [ 60 1
only the court of admiralty, and it's courts of appeal. The
court of admiralty is held before the lord high admiral of
England, or his deputy, who is called the judge of the court.
According to fir Henry Spelman", and Lambard*, it was
firft of all eredled by king Edward the third. It's proceedings
are according to the method of the civil law, like thofe of
the ecclefiaftical courts ; upon which account it is ufually
held at the fame place with the fuperior ecclefiaftical courts,
at doctors' commons in London. It is no court of record,
any more than the fpiritual courts. From the fentences of
the admiralty judge an appeal always lay, in ordinary courfe,
to the king in chancery, as may be coUedled from ftatute
25 Hen. VIII. c. 19. which diredls the appeal from the arch-
bifhop's courts to be determined by perfons named in the
king's commiflion, " like as in cafe of appeal from the ad-
** miral- court." But this is alfo exprefsly declared by ftatute ^
8 Eliz. c. 5. which enafts, that upon appeal made to the
chancery, the fentence definitive of the delegates appointed
by commiflion fhall be final.
Appeals from the vice-admiralty courts in America, and
our other plantations and fettlements, may be brought before
I Lev. 230.. Show, Pari. Caf. 60, * G/jf. 13.
*4.1nrt. 115. * //r.i*;. 41.
the
6g PRIVATE Book tlii
the courts of admiralty in England, as being a branch of tht
admiral's jurifdidlion, though they may alfo be brought be-
fore the king in council. But in cafe of prize veflels, taken
in time of war, in any part of the world, and condemned ini
any courts of admiralty or vice admiralty as lawful prize, the
appeal lies to certain commiflloners of appeals confiding
chiefly of the privy council, and not to judges delegates.
And this by virtue of divers treaties with foreign nations; by
which particular courts are eflablifhed in all the maritime
countries of Europe for the decifion of this queftion, whether
lawful prize or not : for this being a queftion between fub-^
jels of different ftates, it belongs entirely to the law of na-
tions, and not to the municipal laws of either country, to
determine it. The original court, to which this queftion is
C 70 ] permitted in England, is the court of admiralty ; and the
court of appeal is in effeft the king's privy council, the
members of which are, in confequence of treaties, com-
miffioned under the great feal for this purpofe. In 1 748, for
the more fpeedy determination of appeals, the judges of thci
courts of Weftminfter-hall, though not privy counfellors^
"Were added to the commifTion then in being. But doubts
being conceived concerning the validity of that commiflion*
on account of fuch addition, the fame was confirmed by
ftatute 22 Geo. II. c. 3. with a provifo, that no fentencc
given under it (hould be valid, unlefs a majority of the com-
miflioners prefent were adlually privy counfellors. But this
did not, I apprehend, extend to any future commifllons :
and fuch an addition became indeed totally unneceflary in
the courfeof the war which commenced in 1756} fince,
during the whole of that war, the commiflion of appeals was
regularly attended and all it's decifions conduced by a judge,
whofe mafterly acquaintance with the law of nations was
known and revered by every ftate in Europe ^,
y See the fentiments of the piefident Pruflian majefty's Expofitlon da mttifs^
Montefquieu, and M. Vattel, (a fubjedl fc. ^. Z>. 1753. (Montefquicu's let-
of the king of Piuflia,) on the anfwer ters, 5 Mar.' 1753. Valters Jreit Jt
traofinitted by the ngli(h court to his gens. I. 2. (. 7. S|.)
Ch. 6, Wrongs. 71
CHAPTER THE SIXTH.
OF COURTS OF A SPECIAL
JURISDICTION,
IN the two preceding chapters we have confidered the fc-
veral courts, whofe jurifdiilion is public and general;
and which are fo contrived that feme or other of them may
adminifter redrefs to every poflible injury that can arife in the
kingdom at large. There yet remain certain othersj whofc
jurifdilion is private and fpecial, confined to particular fpots
or inftituted only to redrefs particular injuries. Thefe are
I . The foreft courts, Inftituted for the government of the
king's forefts in different parts of the kingdom, and for the
punifhment of all injuries done to the king's deer or venifon,
to the vrt or greenfwerd, and to the ccveri in which fuch
deer are lodged. Thefe are the courts of attnchmentst of re-
gardf oi fiveinmotey and of jujlice-feat. The court of attach'
tnentSi woodmote^ or forty days court, is to be held before
the verderors of the foreft once in every forty days"; and is
inftituted to inquire into all offenders againft vert and veni-
fon * : who may be attached by their bodies, if taken with
the mainour, (or mainoeuvre, a manufj that is, in the very aft
of killing vcnifon or ftealing wood, or preparing fo to do,
or by frefli and immediate purfuit after the aft is done*=; elfe,
they muft be attached by their goods. And in this forty day*
Cart, deforeji. 9 Htn. JJI. c. 8. Carth. 79.
f Inft. 289.
court
71
Private
Book III.
court the forefters or keepers are to bring in their attach-
ments, or prefentments de viridi et venatiotie ; and the ver-
derors are to receive the fame, and to enroll them, and to
certify them under their feals to the court of juftice-feat, or
fweinmote ^ : for this court can only inquire of, but not con-
vil offenders. 2. The court of regard, or furvey of dogs, is
to be holden every third year for the lav^^ing or expeditation of
maftiffs, which is done by cutting off ihe claws and ball (or
C 72 ] pelote) of the forefeet, to prevent them from running after
deer^. No other dogs but maftiffs are to be thus lawed or ex-
peditated, for none others were permitted to be kept within the
precinls of the foreft ; it being fuppofed that the keeping of
thefe, and thefe only, was neceffary for the defence of a man's
houfe^ 3. The court ol fvjehnmte is to be holden before the
verderors, as judges, by the fteward of the fweinmote thrice in
every year^, the fweins or freeholders within the foreft com-
pofing the jury. The principal jurifdiftion of this court is,
fifft, to inquire into the oppreffions and grievances committed
by the officers of the foreft : ^^ de fiiper-ofieratlone forejlari-
*' orumy etaliorum minijlrortttnforejlae; et de eorum opprejfionibus
** populo regis illatis :" and, feccndly, to receive and try pre-
fentments certified from the court of attachments againft of-
fences in vert and venifon ''. And this court may not only in-
quire, but convi(Sl alfo, which conviction ftiall be certified to
the court of juftice-feat under the feals of the jury ; for this
court cannot proceed to judgment'. But the principal court is,
4. The court of jujiicefeaty which is held before the chief
juftice In eyre, or chief itinerant judge, capitaUs jujlttiarius
in itinere^ or his deputy ; to hear and determine all trefpaffes
within the foreft, and all claims of franchifes, liberties, and
privileges, and all pleas and caufes whatfoever therein
aiifing^. It may alfo proceed to try prefentments in the
inferior courts of the forefts, and to give judgment upon
convilion of the fweinmote. And the chief juftice may
* Cart, defireji. < i6.
e IbiJ. c. 6.
'4lnft. 308.
Catt.diforifl. t, 8,.
> Stat. 34Edw. I. c. I.
' 4 Inft. 289.
* Jbid. 29 1.
therefor
Ch. 6, Wrongs. 7a
therefore after prefentment made or Indlclment found, but
not before ', iflue his warrant to the officers of the forefl to
apprehend the offenders. It may be held every third year ;
and forty days notice ought to be given of it's fitting. This
court may fine and imprifon for offences within the forefl. "",
it being a court of record : and therefore a writ of error lies
from hence to the court of king's bench, to relify and re-
drefsany mal-adminifl:rationsof juilice"i or the chief juftice
in eyre may adjourn any matter of law into the court of
king's bench''. Thefe juftices in eyre were infliituted. by f 73 3
king Henry II, A. D. 1184P; and their courts were for-
merly very regularly held : but the lafl; court of juftice-feat
of any note was that holden in the reign of Charles I, before
the earl of Holland ; the rigorous proceedings at which are
reported by fir William Jones. After the refl:oration another
v/as held pro forma only, before the earl of Oxford '^ ; but
fince the aera of the revolution in 16B8, the forefl laws have
fallen into total difufe, to the great advantage of the
fubjea(i).
II. A SECOND fpecles of refl:rlled courts is that of com-
miffioners oifewers. This is a temporary tribunal ereled by
virtue of a commiffion under the great feal ; which formerly
ufed to be granted pro re nata at the pleafure of the crown ",
but now at the difcretion and nomination of the lord chan-
cellor, lord treafurer, and chief jufl:iccs, purfuant to the
Stat. I Idw. III. c. 8. 7 Ric. II. c.4. p Hoveden,
'n4lnft. 313. 9 North's Life of Lord Guildford,
" Ib'ii. 297. 45.
4lnft. 293. 'F.N. B. irj.
( 1 ) All the forefts, which were made after the conquefts, except
New Forefl; in Hampfhire created by William the Conqueror, were
difafforeflied by the charta de forejla. The forefl of Hampton
court was ellabliflied by the authority of parliament in the reign of
Hen.VIII. The number of forefts in England is fixty-nine. 4 Infl
319. Charles I. enforced the odious forefl laws, as a fource of
revenue independent of the parliament.
Vol. III. G ftatute
73 Private Book III.
ftatute 23 Hen. VIII. c 5. Their jurifdilion is to overlook
the repairs of fea banks and fea walls ; and the cleanfing of
tivers, public ftreams, ditches, and other conduits, whereby
any waters are carried ofF: and is confined to fuch county or
particular diflriiSl as the commiffion fhall exprefsly name.
The commiflloners are a court of record, and may fine and
tmprifon for contempts'; and in the execution of their duty
may proceed by jury, or upon their own view, and may
take order for the removal of any annoyances, or the fafe-
guard and confervation of the fcwers within their commif-
fion, either according to the laws and cuftoms of Romney-
itiarfli % or otherwife at their own difcretion. They may
alfo affefs fuch rates, or fcots, upon the owners of lands
within their di{lril, as they {hall judge neceflary : and, if
any perfon refufes to pay them, the commiflloners may levy
the fame by diftrefs of his goods and chattels ; or they may,
by ftatute 23 Hen. VIII. c. 5. fell his freehold lands (and
by the 7 Ann. c. 10. his copyhold alfo) in order to pay fuch
C 74 3 fcots or afleflments. But their condu6t is under the control
of the court of king's bench, which will prevent or punifli
any illegal or tyrannical proceedings ". And yet in the reign
of king James I, (8 Nov. 161 6,) the privy council took
upon them to order, that no alion or complaint fhould be
profecuted againft the commiflloners, unlefs before that
board ; and committed feveral to prifon who had brought
fuch actions at common law, till they fhould releafe the fame:
and one of the reafons for difcharging fir Edward Coke from
his office of lord chief juftlce was for countenancing thofe
legal proceedings '. The pretence for which arbitrary mea-
fures was no other than the tyrant's plea", of the nece/Jity of
unlimited powers in works of evident utility to the public,
** the fupreme reafon above all reafons, which is the falva-
I Sid. 145. from which laws all commi/Iioners of
* Romney-marfti, in the county of fewers in England may receive light
Kent, a trafl contiiujng 24,000 acres, and diredlion. (4 Inft. 276.)
is governed by certala anticnt and equi- " Cro.' Jac. 336.
table laws of fewers, compofed by v Moor, 825, S26. See pag. 55.
Henry d Bathe, a venerable judge in ^ Milt. puad. lolt. iv. 393.
the reign of king Henry the third j
^* tion
CTi. 6. Wrongs. 74
tion of the king's lands and people.'* But now it is clearly
held, that this (as well as all other inferior jurifdiHons) ig
fubjel to the difcretionary coercion of his majefty's court
of king's bench \
III. The court 61 policks of ajfurancef when fubfifting, is
crefted in purfuance of the ftatute 43 Eliz. c. 12. which
recites the immemorial ufage of poHcies of aflurance, *' by
" means whereof it cometh to pafs, upon tlie lofsor perilhing
'* of any fliip, there followeth not the undoing of any man,
<* but the lofs lighteth rather eafily upon many than heavy
" upon ic\Vf and rather upon them that adventure not, than
*' upon thofe that do adventure : whereby all merchants,
" efpecially thofe of the younger fort, are allured to venture
" more willingly and more freely : and that heretofore fuch
** aflurers had ufed to (land fo juftly and precifely upon their
credits, as few or no controverfies had arifen thereupon ;
** and if any had grown, the fame had from time to time
" been cndtd and ordered by certain grave and difcreet mer-
<* chants appointed by the lord mayor of the city of London;
" as men by reafon of their experience fitted to underftand
" and fpeedily decide thofe caufes :" but that of late years
divers perfons had withdrawn themfelves from that courfe
of arbitration, and had driven the aflured to bring feparate
adtions at law againfl each aflurcr : it therefore enables the
lord chancellor yearly to grant a Handing commiffion to the [ 75 3
judge of the admiralty, the recorder of London, two doftors
of the civil law, two common lawyers, and eight merchants;
any three of which, one being a civilian or a barrifter, are
thereby and by the ftatute 13 & 14 Car. IL c. 23. empowered
to determine in a fummary way ail caufes concerning policies
of aflurance in London, with an appeal (by way of bill) to
the court of chancery. But the jurifdiclion being fomewhat
defeQive, as extending only to London,' and to no other
affiirances but thofe on merchandize/, and to fuits brought
by the aflured only, and not by the infurers '', no fuch coni-
* I Ventr. 66. Salk. 1^6. ^ Styl, i66.
* I Show. 396.
G 2 mifllon
75 Private Book III.
niifli )n has of late years iflued ; but infurance caufes are no\r
ufually determined by the verdict of a jury of merchants, and
the opinion of the judges in cafe of any legal doubts; where-
by the decifion is more fpeedy, fatisfalory, and final : though
it is to be wiflied, that fome of the parliamentary powers in-
vefted in thefe commiffioners, efpecially for the examination
of witnefles, either beyond the feas or fpeedily going out of
the kingdom', could at prefent be adopted by the courts of
Weftminfter-hall, without requiring the confent of parties.
IV. The court of the marjhalfeay and the palace court at
Weftminfter, though two diiiindt courts, are frequently
confounded together. The former was originally holden
before the fteward and marflial of the king's houfe, and was
inftituted to adminifter juftice between the king's domeftic
fervants, that they might not be drawn into other courts,
and thereby the king lofe their fervicc ''. It was formerly
held in, though not a part of, the aula regis '^'f and, when
that was fubdivided, remained a diftintt jurifdilion : hold-
ing plea of all trefpafles committed within the verge of the
court, where only one of the parties is in the king's domeflic
fervice, (in which cafe the inqueft fliall be taken by a jury of
the country,) and of all debts, contrails, and covenants, where
both of the contracting parties belong to the royal houfhold ;
and then the inqueft flgall be compofed of men of the houf-
C 7<5 ] hold only''. By the ftatute of 13 Ric. II. ft. i. c. 3. (in af-
firmance of the common law ^) the verge of the court in thi&
refpel extends for twelve miles round the king's place of re-
fidence*^. And, as this tribunal was never fubjedl: to the ju-
rifdition of the chief jufticiary, no writ of error lay from it
Stat. 13 & 14 Car. II. c. 22. 3. the pax regia, or privilege of the king's
tt 4., palace, extended from hit palace gate
i Bulftr. 211. to tlie diftance of three miles, three
riet. /. z. c. z, furlongs, three acres, nine feet, nine
Artie, fup. cart. 28 Edw. I. c. 3. palms, and nine barley corns 5 as ap-
Stat. 5 Edw. III. c. 2. 10 Edw, III. pears .from a fragment of the textui
'- ft. 2. c. 2. B.offenfti cited in Dr. Hicke's dijjftrtat.
2 Inft. 54.8. <///?/, 114.
' By th antlent Saxon conOltution
15 (though
Ch. 6. Wrongs. y6
(though a court of record) to the king's bench, but only to
parliament s, till the flatutes of 5 Edw. III. c. 2. and 10 Edw.
III. ft. 2. c. 3. which allowed fuch writ of error before the
king in his place. But this court being ambulatory, and
obliged to follow the king In all his progrefles, fo that by the
removal of the houlhold, alions were frequently difconti-
nued "^j and doubts having arifen as to the extent of it's jurif-
didlion', king Charles I. in the fixth year of his reign by his
letters patent erefted a new court of record, called the curia
palatii or palace courts to be held before the fteward of the
houfhold and knight marfhal, and the fteward of the court,
or his deputy ; with jurifdiftion to hold plea of all manner
of perfonal aftions whatfoever, which fliall arife between any
parties within twelve miles of his majefty's palace at White-
hall''. The court is now held once a week, together with
the antient court of marfhalfea, in the borough of South-
wark : and a writ of error lies from thence to the court of
king's bench. But if the caufe is of any confidcrable con-
fequence, it is ufually removed oh it's firft commencement,
together with the cuftody of the defendant, either into the
king's bench or common pleas, by a writ of habeas corpus cum
caufa : and the inferior bufinefs of the court hath of late years
been much reduced, by the new courts of confcience erefted
in the environs of London ; in confideration of which the
four counfel belonging to thefe courts had falarics granted
them for their lives by the ftatute 23 Geo. II. c. 27.
V. A iiFTH fpecies of private courts of a limited, though C 77 3
cxtenfive, jurifdilion are thofe of the principality of Wales ;
which upon its thorough reduftion, and the fettling of it's
polity in the reign of Henry the eighth', were erefted all over
the country; principally by the ftatute 34 & 35 Hen. VIII.
c. 26. though much had before been done, and the way pre-
pared by the ftatute of Wales, 12 Edw, I. and other ftatutes.
By the ftatute of Henry the eighth before-mentioned, courts-
I Bulftr. an. 10 Re?. 79. " i Sid. 180. Salk. 439.
"F. N.B. 241. alnft. 5/v8. ' See vol. I. inuod. 4.
' J ^ulftr. iQ%.
G 3 baroNt
77 Private Book III.
baron, hundred, and county courts are there eflablifhed as in
England. A felTion is alfo to be held twice in every year in
each county, by judges "" appointed by the king, to be called
the great feflions of the fcveral counties in Wales : in which
allpleasof real and perfonalalions ftiall beheld, with the fame
form of procefs and in as ample a manner as in the court of
common pleas atWeftminfter " : and writs of error fiiall lie
from judgments therein (it being a court of record) to the court
of king's bench at Weftminfter. But the ordinary original
writs of procefs of the king's courts atWeftminfter do not run
into the principality of Wales ": though procefs of execution
doesPi as do alfo prerogative writs, as writs of certbrari^
quo minusy mandamus, and the like"!. And even in caufes be-
tween fubjeft and fubjet, to prevent Injuftice through family
fadlions or prejudices, it is held lawful (in caufes of freehold
at leaft, and it is ufual in all others) to bring an al:ion in the
Englifii courts, and try the fame in the next Englilh county
adjoining to that part of Wales where the caufe arifes ^, and
wherein the venue is laid. But on the other hand, to prevent
trifling and frivolous fuits it is enabled by ftatute 13 Geo.
III. c. 51. that in perfonal aftions, tried in any Englifli
county, where the caufe of adtion arofe, and the defendant
refides in Wales, if the plaintiff fiiall not recover a verdil for
ten pounds, he fiiall be nonfuited and pay the defendant's cofts,
unlefs it be certified by the judge that the freehold or title
came principally in queftion, or that the caufe was proper to
r 78 "] be tried in fuch Englifli county. And if any tranfttory action,
the caufe whereof arofe and the defendant is refident in
Wales, fiiall be brought in any Englilh county, and the plain-
tiff fiiall not recover a verditl for ten pounds, the plaintiff
fiiall be nonfuited, and fiiall pay the defendant's cofts, de-
ducing thereout the fum recovered by the verdidt.
Stat. 18 Eliz. c. 8. 2 Roll. Rep. 14.1.
" See, for farther regu'ation of the f z Bulftr. 156. 2 Saund. 193,
pradtice of thefe courts, ftar. 5 Eliz. Raym. 206.
.25. 8EIiz. C.20. 8Geo. I. 25.*} 6. t Cro. Jac. 484.
6 Ceo. II. c. 14. 13 Geo. III. c. 51. ''Vaugh. 413. Hardr. 66.
VI. The
Ch. 6. Wrongs. 78
VI. The court of the duchy chamber of Lancafler is an-
other fpecial jurifcii(Slion, held before the chancellor of the
duchy or his deputy concerning all matter of equity relating
to lands holden of the king in right of the duchy of Lancaf-
ter'^: which is a thing very diftinl from the county palatine,
(which hath alfo it's feparate chancery, for fealing of writs,
and the like ',) and comprizes much territory which lies at a
vaft dillance from it ; as particularly a very large diftriil fur-
rounded by the city of Weflminfter. The proceedings in
this court are the fame as on the equity fide in che courts of
exchequer and chancery*; fo that it fecms not to be a court
of record : and indeed it has been holden that thofe courts
have a concurrent jurifditlion with the duchy court, and
may take cognizance of the fame caufes ".
VII. Another fpecies of private courts, which are of a
limited local jurifdidtion, and have at the fame time an ex-
cluGve cognizance of pleas, in matters both of law and
equity ^, are thofe which appertain to the counties palatine
of Chefter, Lancafter, and Durham, and the royal franchife
of Ely *. In all thefe, as in the principality of Wales, the
king's ordinary writs, ifluing under the great feal out of
chancery, do not run ; that is, they are of no force. For,
as originally aWJura regalia were granted to the lords of thefe
counties palatine, they had of courfe the fole adminiftration
of juftice, by their own judges appointed by themfelves and
not by the crown. It would therefore be incongruous for the
king to fend his writ to direfl the judge of another's court in
what manner to adminifter juftice between the fuitors. But
when the privileges of thefe counties palatine and franchifes
were abridged by ftatute 27 Hen. VIII. c 24. it was alfo en-
abled, that all writs and procefs ftiould be made in the king's C 79 3
name, but (hould be te/fc'd or witnefled in the narne of the
owner of the franchife. Wherefore all writ9, whereon actions
f Hob. 77. 2 Lev. 24. Hard. 171.
1 Ventt. 257. " 4lBft 213. 118. Finch. R. 452.
* 4 Inft. ao6. ^ Sec vol. I. iatioi. ^ 4.
" I Chan. Rep. 55. Toth. 145.
G 4 are
79 Private Book III.
are founded, and which have current authority here, mufl be
under the feal of the refpelive franchifesj the two former of
which are now united to the crown, and the two latter under
the government of their feveral bifhops. And the judges of
aflife, who fit therein, fit by virtue of a fpecial commiflion from
the owners of the feveral franchifes,and under the feal thereof;
and not by the ufual commiflion under the great feal of Eng-
land. Hither alfo may be referred the courts of the cinque
.ports, or five moil important havens, as they formerly were
efteemed, in the kingdom ; ^/z. Dover, Sandwich, Romney,
Haftings, and Hythe ; to which Winchelfey and Rye have
been fince added : which have alfo fimilar franchifes in many
refpedls * with the counties palatine, and particularly an ex-
clufivejurifdidion, (before the mayor and jurats of the ports,)
in which exclufive jurifdidlion the king's ordinary writ does
not run. A writ of error lies from the mayor and jurats of
each port to the lord warden of the cinque ports , in his court
of Shepway: and from the court of Shepway to the king's
bench y. So likewife a writ of error lies from all the other
jurifdilions to the fame fupreme court of judicature % as an
enfign of fuperiority referved to the crown at the original
creation of the franchifes. And all prerogative writs (as thofe
of habeas corpus, prohibition, certiorari, and mandamus) may
iiTue for the fame reafon to all thefe exempt jurifdiiStions * ;
becaufe the privilege, that the king's writ runs not, muft be
intended between party and party, for there can be no fuch
privilege againft the king**.
VIII. The ftannary courts in Devonfliire and Cornwall,
for the adminiftration of juftice among the tinners therein,
are alfo courts of record, but of the fame private and exclu-
five nature. They are held before the lord warden and his
fubftitutes, in virtue of a privilege granted to the workers in
C 80 ] the tinmines there, to fue and be fued only in their own
* I Sid. 160. Tis, 6z. '4111(1, 38.214. 2;8,
y Jenk 71. Dy-verfyndes courts, d ' i Sid. 92.
lank. U roy. i Sid. 356. CtQ, Jac 543.
? Bro. 4br. t, etror, 74. 10 1. Da*
courts,
Ch. 6. Wrongs. ^lo
courts, that they may not be drawn from their bufinefs
which is highly profitable to the public, by attending their
lawfuits in other courts ^ The privileges of the tinners arc
confirmed by a charter, 33 Edw. I. and fully expounded by
a private ftatute **, 50 Edw. III. which has fince been ex-
plained by a public ad, 16 Car. I. c. 15. What relates to
our prefent purpofe is only this : that all tinners and labourers
in and about the ftannaries (hall, during the time of their
working therein i^o/ia fide^ be privileged from fuits of other
courts, and be only impleaded in the ftannary court in all
matters, excepting pleas of land, life, and member. No
writ of error lies from hence to any court in Weftminfter-
hall; as was agreed by all the judges in 4 Jac. I. But an
appeal lies from the fteward of the court to the under-warden ;
and from him to the lord -warden ; and thence to the privy
council of the prince of Wales, as duke of Cornwall, when
he hath had livery or inveftitui'e of the fame . And from
thence the appeal lies to the king himfelf, in the lad refort*.
IX. The feveral courts within the city of London S and
other cities, boroughs, and corporations throughout the king-
dom, held by prefcription, charter, or adl of parliament, are
alfo of the fame private and limited fpecies. It would exceed
the defign and compafs of our prefent inquiries, if I were to en-
ter into a particular detail of thefe, and to examine the nature
and extent of their feveral jurifdidtions. It may in general be
fufficient to fay, that they arofe originally from the favour of
the crown to thofe particular diftricls, wherein we find them
erefted, upon the fame principle that hundred-courts, and the
like, were eftablifhed; for the convenience of the inhabitants,
that they may profecute their fuits, and receive juftice at home:
* 4 Inft. 232. error lies to the court of hujiir.gi, before
* See this at length in 4 Inft. %yi. the mayor, recoider, and /hsrifls ; and
4 Inft, 231. from thence to juflices app linted by the
' Ih'id. 230 kir.g's comnaifTion, who ufed to fit in
3 Bulft. 183. the church of St. Martin U grand*
* Do.ieridge hift. of Cornw, 94. (F.N.B.32.) And^iom the judgmtnt
' The chief of thofe in London are of tltoTejuAic'S a writ of error lietim-
xht JJxrlfft county hoiden before their itiediately to the koUfe of lotds.
fteftrard or judge j from whi<;h a writ of
tkat,
8i Private Book III.
that, for the moft part, the courts at Weflminfter-hall have a
concurrent jurifdilion with thefe, or elfe a fuperintendency
over themj ; and are bound by the ftatute 19 Geo. III. c. 70.
to give afliftance to fuch of them as are courts of record, by
iiTuing writs of execution, where the perfon or efFetls of
the defendant are not within the inferior jurifdilion : and
that the proceedings in thefe fpecial courts ought to be ac-
cording to the courfe of the common law, unlefs otherwife
ordered by parliament ; for though the king may ereft new
courts, yet he cannot alter the eftablillied courfe of law.
But there is one fpecies of courts, conftituted by a6l of
parliament, in the city of London and other trading and
populous diflridls, which in their proceedings fo vary from
the courfe of the common law, that they may deferve a more
particular confideration. I mean the courts of requefts, or
courts of confcience, for the recovery of fmall debts. The
iirft of thefe was eftabHlhed in London, fo early as the reign
of Henry the eighth, by an a6l of their common council j
which however was certainly infufficient for that purpofe and
illegal, till confirmed by ftatute 3 Jac. L c. 15;. which has
fince been explained and amended by ftatute 1 4 Geo. IL c. i o.
The conftitution is this: two aldermen, and four commoners,
fit twice a week to hear all caufes of debt not exceeding the
value of forty (hillings ; which they examine in a fummary
way, by the oath of the parties or other witneffes, and make
fuch order therein as is confonant to equity and good con-
fcience. The time and expence of obtaining this fummary
redrefs are very inconfiderable, which make it a great benefit
to trade ; and thereupon divers trading towns and other dif-
trils have obtained als of parliament, for eftablifhing in
them courts of confcience upon nearly the fame plan as that
in the city of London (2).
i Salk. 144. 263.
(2) By the 25 Geo. III. c. 45. and 26 Geo. III. c. 38. n
debtor or defendant, in any court for tlie recovery of fmall debts,
9 where
Ch. 6. Wrongs. 8i
The anxious defire that has been iliewn to obtain thcfc
feveral als, proves clearly tliat the nation in general is truly
fenfible of the great inconvenience arifing from the difufe of
the antient county and hundred courts ; wherein caufcs o^
this fmall value were always formerly decided, with very
little trouble and expenfe to the parties. But it is to be fear-
ed, that the general remedy which of late hath been princi-
pally applied to this inconvenience (the ere<Sling thefe new
jurifdi6lions) may itfelf be attended in time with very iU
confequences : as the method of proceeding therein is entirely
in derogation of the common law ; as their large difcretionary
powers create a petty tyranny in a fet of Handing commif-
(ioners; and as the difufe of the trial by jury may tend to
cftrangethe minds of the people from that valuable prerogative
of Engliflimen, which has already been more than fufEciently
excluded in many inllances. How much rather is it to be
wifhed, that the proceedings in the county and hundred-
courts could again be revived, without burthening the free-
holders with too frequent and tedious attendances ; and at
the fame time removing the delays that have infenfibly crept [ 83
into their proceedings, and the power that either party have
of transferring at pleafure their fuits to the courts at Weft-
minfter ! And we may with fatisfalion obferve, that this
experiment has been actually tried, and has fucceeded in the
populous county of Middlefex ; which might ferve as an
example for others. For by ftatute 23 Geo. II. c. 33. it is
cnafted, i. That a fpecial county court fliall he held, at
lead once a month, in every hundred of the county of Middle-
fex, by the county clerk. 2. That twelve freeholders of that
hundred, qualified to ferve on juries, and ftruck by the iheriff.
where the debt does not exceed twenty flu'Uings, fhall be committed
to prifon for more than twenty days, and if the debt docs not ex-
ceed forty {hillings, for more than forty days ; unlefs it be proved
to the fatisfadtion of the court, that he has money or goods which
he fraudulently conceals, and in the firft cafe the ImprifoQment may
be extended to thirty days, and in the latter to tixty.
(haU
Sj Private Book III.
ihall be fummoned to appear at fuch court by rotation ; (o as
none ihall be fummoned oftener than once a year. 3. That
in all caufes, not exceeding the value of forty fhillings, the
county clerk and twelve fuitors (hall proceed in a fummary
way, examinmg the parties and witneffes on oath, without the
formal procefs antiently ufed : and fhall make fuch order there-
in as they {hall judge agreeable to confcience. 4. That no
plaints fliall be removed out of this court, by any procefs what-
soever; but the determination herein fliall be final. 5. That if
any adion be brought in any of the fuperior courts againft a
perfon refideut in Middlefex, for a debt orcontracV, upon the
trial whereof the jury fhall find lefs than 40/. damages, the
plaintiff fliall recover no coils, but fhall pay the defendant
double coils ; unlefs upon fome fpecial circumilances, to be
certified by the judge who tried it. 6. Laftly, a table of very
moderate fees is prefcrlbed and fet down in the act ; which
are not to be exceeded upon any account whatfoever. This is
ft plan entirely agreeable to the conilitution and genius of the
nation : calculated to prevent a multitude of vexatious alions
in the fuperior courts, and at the fame time to give honeil
creditors an opportunity of recovering fmallfums; which
now they are frequently deterred from by the expenfe of a
fuit at law : a plan which, one would think, wants only to
be generally known, in order to its univerfal reception.
X. There is yet another fpecies of private courts, which
I mud not pafs over in filence : viz. the chancellor's courts
in the two univerfities of England. Which two learned
bodies enjoy the fole jurifdiclion, in excluiion of the king's
C 84 ] courts, over all civil alions and fuits whatfoever, when a
fcholar or privileged perfon is one of the parties ; excepting
in fuch cafes where the right of freehold is concerned. And
thefe by the univerfity charter they are at liberty to try and
determine, either according to the common law of the land,
or according to their own local cufloms, at their difcretion;
which has generally led them to carry on their procefs in a
courfe much conformed to the civil law, for reafons fuffi-
eicntly explained in a former volume '.
* Vol. I. inuod. J.
These
Ch. 6. Wrongs. 84
These privileges were granted, that the ftudents might
not be diflracled from their ftudies by legal procefs from dif-
tant courts, and other forenCc avocations. And privileges of
this kind are of very high antiquity, being generally enjoyed
by all foreign univerfities as well as our own, in confequencc
(I apprehend) of a conftitution of the emperor Frederick,
ui.D. 1 158'. But as to England in particular, the oldefl
charter that I have feen, containing this grant to the univer-
fity of Oxford, was 28 Hen. III. A.D. 1244. And the fame
privileges were confirmed and enlarged by almofl every {mZ'
ceeding prince, down to king Henry the eighth ; in the
fourteenth year of whofe reign the largefl and mod extenfivc
charter of all was granted. One fimilar to which was after-
wards granted to Cambridge in the third year of queen Eliza-
beth. But yet, notwithftanding thefe charters, the privileges
granted therein, of proceeding in a courfe different from the
law of the land, were of fo high a nature, that they were
held to be invalid j for though the king might ere61: new-
courts, yet he could not alter the couife of law by his letters
patent. Therefore in the reign of queen Elizabeth an ail of
parliament was obtained, confirming all the charters of the
two univerfities, and thofe of 14 Hen. VIII. and 3 Eliz. by
name. Which blejjed aBy as fir Edward Coke entitles it",
eftabli(hed this high privilege without any doubt or oppofi-
tion : or, as fir Matthew Hale p very fully exprefi^es the fenfe
of the common law and the operation of the al of parlia- f ^r l
ment, " although king Henry the eighth, 14 A. R. fu't^
** granted to the univerfity a liberal charter, to proceed ac-
** cording to the ufe of the univerfity; viz. by a courfe much
** conformed to the civil law j yet that charter had not been
** fufllcient to have warranted fuch proceedings without the
** help of an zt of parliament. And therefore in 1 3 Eiiz.
** an aft paiTed, whereby that charter was inefFeft enaQed;
*' and it is thereby that at this day they have a kind of civil
** law procedure, even in matters that are of themfelves of
* Ccd. 4. tti, 1 3, Jenk. Cent. a. pi. 88. Cent. 3.
^ i3Elii, C.29. P' 33- Hardr. 504. Godbolt. zoi.
4lft. 127. J-Hift. C. L. 33.
" common'
8^ Private Book III.
*' common law cognizance, where either of the parties is
*^ privileged."
This privilege, fo far as it relates to civil caufes, is exer-
cifed at Oxford ia the chancellor's court; the judge of which
is the vice-chancellor, his deputy, or affeflbr. From his
fentence an appeal lies to delegates appointed by the congre-
gation; from thence to other delegates of the houfe of con-
vocation; and if they all three concur in the fame fentence
it is final, at leafl by the ftatutes of the univerfity "^j accord-
ing to the rule of the civil law"". But, if there be any dif-
cordance or variation in any of the three fentences, an appeal
lies in the lafl refort to judges delegates appointed by the
crown under the great feal in chancery.
I HAVE now gone through the feveral fpecies of private*
or fpeclal courts, of the greateft note in the kingdom, infti-
luted for the local redrefs of private wrongs; and muft, in
the clofe of all, make one general o'ofervatlon from fir Ed-
ward Coke': that the fe particular jurifdi6lions, derogating
from the general jurifdiftion of the courts of common law,
are ever ftrilly reflrained, and cannot be extended farther
than the exprefs letter of their privileges will mod explicitly
warrant.
* Tif, 21. 19. Cff^. 7. 17. I. 2 Inft. 5|8.
Ch. 7. Wrongs. t$t
CHAPTER THE SEVENTH.
OF THE COGNIZANCE of PRIVATE
WRONGS.
WE are now to proceed to the cognizance of private
wrongs -, that is, to confider in which of the vafl:
variety of courts, mentioned in the three preceding chap-
ters, every poffible injury that can be offered to a man's
perfon or property is certain of meeting with redrefs.
The authority of the feveral courts of private and fpecial
jurifdi<^ion, or of what wrongs fuch courts have cognizance,
was neceffarily remarked as thofe refpedlive tribunals were
enumerated ; and therefore need not be here again repeated :
which will confine our prefent inquiry to the cognizance of
civil injuries in the feveral courts of public or general jurif-
didlion. And the order, in which 1 fliall purfue this in-
quiry, will be by (hewing; i.What adlions may be brought,
or what injuries remedied, in the ecclcfiaftical courts.
^. "What in the military. 3. What in the maritime. And
4. What in the courts of common law.
And with regard to the three firft of thefe particulars, I
muft beg leave not fo much to confider what hath at any tim^
been claimed or pretended to belong to their jurifdidion, by
the officers and judges of thofe refpeftive courts ; but what
the common law allonvs and permits to be fo. For thefe ec-
centrical tribunals (which were principally guided by the rules
of the imperial and canon laws) as they fubfid and are ad-
mitted
Mf^^ Private Book III.
mitted in England, not by any right of their own ^, but upon
bare fufferance and toleration from the municipal laws, mufl:
have recourfe to the laws of that country wherein they are
thus adopted, to be informed how far their jurifdidlion ex-
tends, or what caufes are permitted, and what forbidden, to
be difcufled or drawn in queftion before them. It matters
not therefore what the pandedls of Juftinian, or the decretals
of Gregory have ordained. They are here of no more in-
triuGc authority than the laws of Solon and Lycurgus : cu-
rious perhaps for their antiquity, refpedlable for their equity,
and frequently of admirable ufe in illuftrating a point of hif-
tory. Nor is it at all material in what light other nations
may confider this matter of jurifdiction. Every nation mufl:
and will abide by its own municipal laws ; which various
accidents confpire to render different in almofl: every country
in Europe. We permit fome kinds of fuits to be of eeclefi-
aftical cognizance, which other nations have referred entirely
to the temporal courts ; as concerning wills and fucceflions
to inteftates' chattels : and perhaps we may, in our turn,
prohibit them from interfering in fome controverfies, which
on the continent may be looked upon as merely fpiritual. In
fliort, the common law of England is the one uniform rule
to determine the jurifdi6lion of our courts : and, if any tri-
bunals whatfoever attempt to exceed the limits fo prefcribed
them, the king's courts of common law may and do prohi-
bit them , and in fome cafes punifh their judges '',
Having premifed this general caution, I proceed now tp
onfider,
I. The wrongs or injuries cognizable by the eccleGafliical
courts. I mean fuch as are offered to private perfons or in-
dividuals ; which are cognizable by the ecclefiaftical court,
not for reformation of the offender himfelf or party injuring
(profalute animne^ as is the cafe with immoralities in general,
when unconnedted with private injuries) but for the fake of
the party injuredy to make hira a fatisfalion and redrefs for
Sec Vol. I. introd. i. * Hal. Hift. C. L. c. .
the
Ch, f. Wrongs. 83
the damage which he has fuftained. And thefe I (hall reduce
under three general heads ; of caufes pecuniaryy caufes matri-
tnenialy and caufes iejiamentary.
I. Pecuniary caufes, cognizable in the ecclefiaftical
courts, are fuch as arife either from the withholding ecclefi-^
aftical dues, or the doing or neglecting fome zOi relating to
the church, whereby fome damage accrues to the plaintiff;
towards obtaining a fatisfation for which he is permitted to
inftitute a fuit in the fpiritual court.
The principal of thefe is the fubtral:Ion or withholding
of tithes from the parfon or vicar, whether the former be a
clergyman or a lay appropriator '^. But herein a diftinftlon
mufl: be taken : for the ecclefiaftical courts have no jurifdic-
tion to try the right oi tithes unlefs between fpiritual perfons**;
but in ordinary cafes, between fpiritual men and lay men,
are only to compel the payment of them, when the right is
not difputed ^. By the ftatutc or rather writ ^ of circumfpeEie
agatis e, it is declared that the court chriftian fhall not be
prohibited from holding plea, **^ reSlor petat verfus parochia'
** nos oblntienes et decimas debitas et confuetas .*" fo that if any
difpute arifes whether fuch tithes be due and accujiomed^ this
cannot be determined in the ecclefiaftical court, but before
the king's courts of the common law ; as fuch queftion af-
feds the temporal inheritance, and the determination muft
bind the real property. But where the right does not come
into queftion, but only the faSl whether or no the tithes
allowed to be due are really fubtrated or withdrawn, this is
a tranfient perfonal injury, for which the remedy may pro-
perly be had in the fpiritual court ; viz. the recovery of the
tithes, or their equivalent. Byftatute 2 & 3 Edw. VI. c. 13.
it is enafted, that if any perfon fhall carry off his predial
tithes (v/s. of corn, hay, or the like) before the tenth part
Stat. 34 Hen. VIII. c. 7. ' See Bartington. 123. 3 Pryn. Rec*
* 2 Roil, Abr. 309, 310. Bro, ALr, 336.
t, jurijdiftion. 85. 13 Edw. I, ft. 4. or rather, 9 Edw.
2 Inft. 364. 4g9, 490. It.
Vol. III. H is
89 Private Book III,
is duly fct forth, or agreement is made with the proprietor, or
fball willingly withdraw his tithes of the fame, or (hall (top
or hinder the proprietor of the tithes or his deputy from view-
ing or carrying them away ; fuch offender fhall pay double
the value of the tithes, witli cofts, to be recovered before
the ecclefiaftical judge, according to the king's ecclefiaftical
laws. By a former claufe of the fame flatute, the treble valu
of the tithes, fo fubtra<^ed or withheld, may be fued for in
tlie temporal courts, which is eqiiivalent to the double value
to be fued for in the ecclefiaftical. For one may fue for and
recover in the ecclefiaftical courts the tithes themfelves, or a
recompenfe for them, by the antient law ; to which the fuit
for the double value is fuperadded by the ftatute. But as nO'
fuit lay in the temporal courts for the fubtrac^ion of tithes
themfelves, therefore the ftatute gave a treble forfeiture, if
fued for there j in order to make theeourfeof juftice uniform,
by giving the fame reparation in one court as in the other '' { i ).
However it now feldom happens that tithes are fued for at all
in the fpiritual court ; for if the defendant pleads any cuftom,
imduSi compofition, or other matter whereby the right of
tithing is called in queftion, this takes it out of the jurifdic-
tion of the ecclefiaftical judges ; for the law will not fuffer
the exiftence of fuch a right to be decided by the fentence of
* ^Inft. 250.
(i ) The ftatute enacts, that every perfon (hall juftly divide, fet
out, yield, and pay all manner of predial tithes in fuch manner as
they have been of right yielded and paid within forty years, or of
rtght or cuftom ought to have been paid, before the making of
that aft, under the forfeiture of treble value of the tithes fo carried
away. And in an aftion upon this ftatute, in which the declara-
tion ftated that the tithes were within forty years before the ftatute
yielded and payable, and yielded and paid, it was held that evidence
that the land had been as far as any witnefs knew in pafture, and
that it was never known to pay in predial tithe, was not fufficicnt
to defeat the aftion. The fame aftion-niight alfo be fupported to
recover tithes of lands inclofed out of waftes, which never paid
tithes before. Mikhell \, Walker ^ 5 T. R. 260.
any
Ch. 7. Wrong s. 89
any fingle, much lefs an ecclefiaftical, judge ; without the
verdicSb of a jury. But a more fummary method than either
of recovering fmall tithes under the value of 40j-. is given by
ftatute 7 & 8 W. III. c. 6. by complaint to two jullices of
the peace : and, by another ftatute of the fame year, c. 34,
the fame remedy is extended to all tithes withheld by quakers
under the value of ten pounds.
Another pecuniary injury, cognizable in the fpiritual
courts, is the non-payment of other ecclefiaftical dues to the
clergy j as penfions, mortuaries, compofitions, offerings, and
whatfoever falls under the denomination of furplice-fees, for
marriages or other minifterial offices of the church : all
which injuries are redrefled by a decree for their alual pay-
ment. Befides which all offerings, oblations, and obventions f 90 J
not exceeding the value of 40 x. may be recovered in a fum-
mary way, before two juflices of the peace *. But care muft
be taken that thefe are real and not imaginary dues ; for, if
they be contrary to the common law, a prohibition will iffue
out of the temporal courts to ftop all fuits concerning them.
As where a fee was demanded by the minifler of the parifh
for the baptlfm of a child, which was adminiftered in another
place ^ i this, however authorized by the canon, is contrary
to common right : for of common right no fee is due to the
minifter even for performing fuch branches of his duty, and
it can only be fupported by a fpecial cuftom ' ; but no cuftom
can fupport the demand of a fee without performing them at
all.
For fees alfo, fettled and acknowledged to be due to the
officers of the ecclefiaftical courts, a fuit will lie therein :
but not if the right of the fees is at all difputable ; for then it
muft be decided by the common law"'. It is alfo faid, that if
a curate be licenced, and his falary appointed by the biftiop,
and he be not paid, the curate has a Remedy in the ecclefi-
Stat. 7 & 8 W. III. c. 16. Fltzg. 55.
* Salk. 332. " 1 Ventr. 165.
' lb]d. 334. Lord Raym, 450. J 558.
H 2 aft leal
90 Private Book III-
aftical court : but, if he be not licenced, or hath no fuch
falary appointed, or hath made afpecial agreement with the
telor, he muft fuefor a fatisfation at common law"; either
by proving fuch fpecial agreement, or elfe by leaving it to a
jury to give damages upon a quatjtum meruit, that is, in con-
fideration of what he reafonably deferred in proportion to
the fervicc performed.
Under this head of pecuniary injuries may alfo be reduced
the feveral matters of fpoliation, dilapidations, and neglel of
repairing the church and things thereunto belonging ; for
which a fatisfalion maybe fued for in the ecclefi aftical court.
Spoliation is an injury done by one clerk or incumbent
to another, in taking the fruits of his benefice without any
[pi 3 right thereunto, but under a pretended title. It is remedied
by a decree to account for the profits fo taken. This injury,
when the Jus patronatus or right ^f advowfon doth not come
in debate, is cognizable in the fpiritual court : as if a patron
firft prefects A to a benefice, who is inftituted and inducted
thereto ; and then, upon pretence of a vacancy, the fame
patron prefents B to the fame living, and he alfo obtains
inftitution and indudllon. Now, if the fat of the vacancy be
difputed, then that clerk who is kept out of the profits of the
living, whichever it be, may fue the other in the fpiritual
court for fpoliation, or taking the profits of his benefice.
And it fiiall there be tried, whether the living were, or were
not, vacant ; upon which the validity of the fecond clerk's
pretenfions muil depend". Bat if the right of patronage
comes at all into difpute, as if one patron prefented A, and
another patron prefented B, there the ecclefiaftical court hath
no cognizance, provided the tithes fued for amount to a
fourth part of the value of the living, but may be prohibited
at the inftance of the patron by the king's writ oi wdicavit^.
So alfo if a clerk, without any colour of title, ejel:s another
from his parfonage, this injury muft be redrefled in the tem-
"" I Burn. eccl. law. 438, p QrcumffeBe agatis ^ 13 Edw, I. ft 4.
" I Freem, 70. ^tk, Ckri. 9 Edw. IJ. c. a. F. N. B. 45.
*F.N. B, 36.
poral
Ch. 7. Wrong s. 91
poral courts : for It depends upon no queftion determinable
by the fpiritual law, (as plurality of benefices are no plurality,
vacancy or no vacancy,) but is merely a civil injury.
For dilapidations i which are a kind of ecclefiaftical wafte,
either voluntary, by pulling down ; or permiffive, by fufFer-
ing the chancel, parfonage-houfe, and other buildings there-
unto belonging, to decay ; an aHon alfo lies, either in the
fpiritual court by the canon law, or in the courts of common
law '', and it may be brought by the fucceflbr agalnft the
predeceflbr, if living, or, if dead, then agalnft his executors.
It is alfo fald to be good caufe of deprivation, if the bifliop,
parfon, vicar, or other ecclefiaftical perfon, dilapidates the
buildings, or cuts down timber growing on the patrimony of
the church, unlefs for neceflary repairs ' : and that a writ of r p2 3
prohibition will alfo lie agalnft him in the courts of common
lawf. By ftatute 13 Eliz. c. 10. if any fpiritual perfon
makes over or alienates his goods with Intent to defeat his
fuccefl'ors of their remedy for dilapidations, the fucceflbr fhall
have fuch remedy agalnft the alienee, In the ecclefiaftical
court, as if he were the executor of his predeceflbr. And
by ftatute 14 Eliz. c. 11. all money recovered for dilapida-
tions fliall within two years be employed upon the buildings,
in refpeft whereof it was recovered, on penalty of forfeiting
double the value to the crown.
As to the negleft of reparations of the church, church-
yard, and the like, the fpiritual court has undoubted cogni-
zance thereof' ; and a fult may be brought therein for non-
payment of a rate made by the church- wardens for that
purpofe. And thefe are the principal pecuniary injuries,
which are cognizable, or for which fults may be inftituted,
in ecclefiaftical courts.
2. Matrimonial caufes, or Injuries refpefling the rights
of marriage, are another, and a much more undlfturbed,
branch of the ecclefiaftical jurlfdidlon. Though, if we con-
' Cart. 224. 3 Lev. 268. fjBulftr. 153. i Roll. Rep. 335.
' J Roll, Rcp.S6. 1 J Rep. 98. Godb.2S9. Circumjfale agatis. 5 Rep. 66.
H 3 fider
9* Private Book Ilf.
fider marriages in the right of mere civil contrals, they do
not feem to be properly of fpiritual cognizance ^ But the
Romanifts having very early converted this contraft into a
holy f;icramental ordinance, the church of courfe took it un-
der herprotedion, upon the divifion of the two jurifdicbions.
And, in the hands of fuch able politicians, it foon became
an engine of great importance to the papal fcheme of an uni-
verfal monarchy over Chriftendom. The numberlefs cano-
nical impeciimeats that were invented, and occafionally dif-
penfed with, by the holy fee, not only enriched the coffers
of the church, but gave it a vaft afcendant over princes of
all denominations ; whofe marriages were fanlified or repro-
bated, their iflue legitimated or baftardized, and the fucceflion
to their thrones eftablifhed or rendered precarious, according
r 93 3 **^ ^^^^ humour or intereft of the reigning pontiff: befides a
thoufand nice and difficult fcruples, with which the clergy of
thofe ages puzzled the underflandings and loaded the confci-
encesof the inferior orders of the laity; and which could only
be unravelled and removed by thefe their fpiritual guides.
Yet, abflradted from this univerfal influence, which affords
fo good a reafon for their conduft, one might otherwifc be
led to wonder, that the fame authority, which enjoined the
llridleft celibacy to the prieflhood, fhould think them the
proper judges in caufes between man and wife. Thefe cadfes
indeed, partly from the nature of the injuries complained of,
and partly from the clerical method of treating them ", foon
became too grofs for the modefty of a lay tribunal. And
caufes matrimonial are now fo peculiarly ecclefiallical, that
the temporal courts will neverinterfereincontroverfiesof this
kind, unlefs in fome particular cafes. As if the fpiritual court
do proceed to call a marriage in queftioi) after the death of
either of the parties; this the courts of common law will
prohibit, becaufe it tends to baflardize and difinherit the ifTuej
who cannot fo weW defend the marriage, as the parties them-
felves, when both of them living, might have done ".
Wa b. jilliance. 173. written by the popifh clergy on the fub-
Some of the impureft books, that jefts of matrimony and divorce,
arc extant in any languagp, arc thofc " Z Inll, 614.
o?
h. 7. Wrongs. 93
Of matrimonial caufes, one of the firft: and principal is,
1. Caufa ja8'itatioms matrimonii; when one of the parties
boafts or gives out that he or (he is married to the other,
whereby a common reputation of their matrimony may enfue.
On this ground the party injured may libel the other in the
fpiritual court j and, unlefs the defendant undertakes and
makes out a proof of the aftual marriage, he or flic is enjoin-
ed perpetual filence upon that headj which is the onlyremedy
the ecclefiaftical courts can give for this injury. 2. Ano-
ther fpecies of matrimonial caufes was, when a party con-
tradled to another brought a fuit in the ecclefiaftical court to
compel a celebration of the marriage in purfuance of flich
contract ; but this branch of caufes is now cut off entirely
by the al for preventing clandeftine marriages, 26 Geo. II.
c. 33. which enadls, that for the future no fuit ihall be had C 94 jj
in any ecclefiaftical court, to compel a celebration of mar-
riage in facie eccleftae, for or becaufe of any contraEl of ma-
trimony whatfoever. 3. The fuit for rejlitution of conjugal
rights is alfo another fpecies of matrimonial caufes : which is
brought whenever either the hulband or wife is guilty of the
injury of fubtraftion, or lives feparate from the other with-
out any fufficienc reafon ; in which cafe the ecclefiaftical ju-
rifdiftion will compel them to come together again, if either
party be weak enough to defire it, contrary to the inclination
of the other. 4. Divorces alio, of v/hich and their feveral
diftinlions we treated at large in a former volume ^, are
caufes thoroughly matrimonial, and cognizable by the eccle-
fiaftical judge. If it becomes improper, through fome fuper-
venient caufe arifmg ex poftfaBo, that the parties fliould live
together any longer ; as through intolerable cruelty, adul-
tery, a perpetual difeafe, and the like (2); this unfitnefsor in5V
* Book I. ch. 15.
(2) It has lately been determined by the court of delegates,
that the public infamy of the htlfbaiid, arifnig from a judicial con-
viftion of an attempt to commit an unnatural crime, is a fufficient
caufc for the ecclefiaftical courts to decree a feparation a menfa et
thovo. Feb. 1794.
H 4 bility
94 Private Book III.
bility for the marriage ftate may be looked upon as an Injury
to the fufFering party ; and for this the ecclefiaftical law ad-
, rainifters the remedy of reparation, or a divorce a men/a et
thoro. But if the caufe exifted previous to the marriage, and
was fuch a one as rendered the marriage unlawful ab initio^
as confanguinity, corporal imbecility, or the like ; in this
cafe the law looks upon the marriage to have been always
null and void, being contradled infraudem legis^ and decrees
not only a feparation from bed and board, but a vinculo ma-
trimonii itfelf. 5. The laft fpecies of matrimonial caufes is a
confequence drawn from one of the fpecies of divorce, thata
men/a et thoro ; which is the fuit for alimony^ a term which
fignifies maintenance : which fuit the wife, in cafe of fepa-
ration, may have againft her hufband, if he neglels or re-
fufes to make her an allowance fuitable to their ftation in life.
This is an injury to the wife, and the court chriftian will
yedrefs it by afligning her a competent maintenance, and
compelling the hulband by ecclefiaftical cenfures to pay it,
But no alimony will be afligned in cafe of a divorce for adul-
tery on her part \ for as that amounts to a forfeiture of her
C 95 3 dower after his death, it is alfo a fufficicnt reafon why (he
fliould not be partaker of his eftate when Hying.
3. Testamentary caufes are the only remaining fpecies,
belonging to the ecclefiaftical jurifdidion ; which, as they
are certainly of a mere temporal nature '^, may feem at firft
view a little oddly ranked among matters of a fpiritual cogni-
zance. And indeed (as was in fome degree obferved in a
former volume y) they were originally cognizable in the
king's courts of common law, viz. the county courts ^ ; and
afterwards transferred to the jurifdidlion of the church by the
favour of the crown, as a natural confequence of granting tq
the biftiops the adminiftration of inteftates' efFeds.
This fpiritual jurifdil:ion of teftamentary caufes is a pecu-
liar conftitution of this ifland ; for in' almoft all other (even
* Watburt. aliiance. 173. * Hickes Z)^<'r. Efifiolar. fag. 8. 5S.
7 Book li. ch. 3Z.
Ch. 7. Wrongs. 9^
in popifh) countries all matters teftamentary are under the ju-
rifdidlion of the civil magiftrate. And that this priviltge is
enjoyed by the clergy in England, not as a matter of eccle-
fiallical right, but by the fpecial favour and indulgence of the
municipal law, and as it ftiould feem by fome public al of
the great council, is freely acknowleged by Lindewode, the
ableft canonift of the fifteenth century. Tellamentary caufes,
he obferves, belong to the ecclefiaftical courts " de confuetudine
*' Angiiaey et fuper conjenfu regio et fuoriim procerum in talibus
** ab antiquQ concejjo *." The fame was, about a century be-
fore, very openly profefled in a canon of archbifhop Strat-.
ford, viz. that the adminiftration of inteftates' goods was
*' ah olirrC^ granted to the ordinary, " confenfu regio et mag'
** natum regni Angliae^." The conftitutions of cardinal
Othobon alfo teftify, that this provifion " olim a praelatis cum
*' approhatione regis et haronum dicitur emafiajfe *^." And arch-
bifliop Parker *, in queen Elizabeth's time, affirms in exprefs
words, that originally in matters teftamentary " non tillam
** hahehant epifcopi authoritateniy praeter earn quam a rege ac" f 96 T
** ceptam referebant. Jus tejiamenta probandi non habebant^
** adminijlrationis potejiatem cuique delegare non poter ant r
At what period of time the ecclefiaftical jurifdilion of tef-
taments and inteftacies began in England, is not afcertained,
by any antient writer : and Lindewode ^ very fairly confefles,
** cujus regis temporibus hoc ordinatum ftty non reperio.^' We
find it indeed frequently aflerted in our common law books,
that it is but of late years that the church hath had the pro-
bate of wills ^ But this muft only be underftood to mean,
that it hath not always had this prerogative: for certainly it
is of very high antiquity. Lindewode, we have feen, declares
that it was " ab antique ;'* Stratford, in the reign of king
Edward III, mentions it as " abolim ordinatum " and cardi-
nal Othobon, in the 52 Hen. Ill, fpeaks of it as an antient
* Pnvltic'uil. I. 2. t. 12. fol. ij6, 'fol.idi.
* Ibid. I. 3. t. 38. //. 263. ' Fitz, Abr. t'lt. ttfiamtnt. pi. 4. 2 Roll.
' cap. 23. Abr, 217. 9 Rep. 37. Vaugh. 207,
"See 9 Rep. 38.
I traditipn.
ffi Private Book IIL
tradition. Brat^on holds it for clear law in the fame reisn of
Henry III, that matters teflamentary belonged to the fpiri-
tual court s. And, yet earlier, the difpofition of inteftates'
goods *^per vifum ecclefiai* was one of the articles confirmed
to the prelates by king John's magna carta\ Matthew Paris
alfo informs us, that king Richard I. ordained in Normandy,
** e^uod dijirihutio reruni quae in tejlamento relinqituntur auio-
* ritate eccleftae fietP And even this ordinance, of king
Richard, was only an introdutiou of the fame law into his
ducal dominions, which before prevailed in this kingdom ;
for in the reign of his father Henry II. Glanvil is exprefs,
that *'^ qiiis aHquid dlxerit contra tejlamentum^ placttum illud
** in curia chrijitanitatis audiri debet et terminari^^* And the
Scots book called regium mnjejiatem agrees verbatim with
Glanvil in this point ''.
It appears that the foreign clergy were pretty early ambi-
tious of this branch of power : but their attempts to aflume
t 97 3 it on the continent were etfe.6lually curbed by the edict of
the emperor Juftin ', which reftrained the infinuation or pro-
bate of teftaments (as formerly) to the office of the magijler
cenfus : for which the emperor fubjoins this reafon j " abjur-
<< dum etenifn clericis ejiy immo etiam opprobriofiim^ fi peritosfe
** velifit ojlendere difceptatiomim ejje forenftum" But after-
wards by the canon law ^ it was allowed, that the bilhop
might compel by ecclefiaftical cenfures the performance of a
bequeft io pious ufes. And therefore, as that was confidered
as a caufe quae Jtcundum canones et epifcopales leges ad regimen
tmimarum pertiiwit, it fell within the jurifdiiStion of the fpiri-
tual courts by the exprefs words of the charter of king "Wil-
liam I, which feparated thofe courts from the temporal. And
afterwards v/hen king Henry I, by his coronation- charter di-
ledied, that the goods of an inteftate lliould be divided for
* I. 5. de exceptcmbus. c, 10. ' Cod. i^j. 41.
* cap. 27. edit. Oxov, "> Dciretal. 3. 26. 17. Cilb. Rep.
* /. 7. e. 8. zr<j., 105,
>/.2.r. 38.
the
Ch. 7. Wrongs* 9^
the good of his foul , this made all inteftacies immediately
Spiritual caufes, as much as a legacy to pious ufes had been
before. This therefore, we may probably conje(flure, was
the aera referred to by Stratford and Othobon, when the king, .
by the advice of the prelates, and with the confent of his
barons, invcfted the church with this privilege. And ac-
cordingly in king Stephen's charter it is provided, that the
goods of an inteftate ecclefiaftic Hiall be didvibuted pro falute
anitnae ejusyecclefiae conctlio '^j which latter words are equiva-
lent to per vifum eccleftae in the great charter of king John
before-mentioned.- And the Danes and Swedes (who re-
ceived the rudiments of chriftianity and ecclefiaftical difci-
pline from England about the beginning of the twelfth cen-
tury) have thence alfo adopted the fpirituai cognizance of
inteftacies, teftaments, and legacies p.
This jurifdilion, we have feen, is principally exercifed
with us in the confiflory courts of every diocefan bifliop, and
in the prerogative court of the metropolitan, originally ; and [ 9$ J
in the arches court and court of delegates by way of appeal.
It is diviCble into three branches ; the probate of wills, the
granting of adminiflrations, and the fuing for legacies. The
two former of which, when no oppofition is made, are grant-
ed merely ex officio et debitojitftitiae, and are then the objecSl of
what is called the voluntary, and not the contentious jurif-
dilion. But when a caveat is entered againft proving the will,
or granting adminiftration, and a fuit thereupon follows to
determine either the validity of the teftament, or who hath
a right to adminifter j this claim and obftrulion by the
adverfe party are an injury to the party entitled, and as
fuch are remedied by the fentence of the fpirituai court, ei-
ther by eftablilhing the will or granting the adminiftration.
Subtraction, the withholding or detaining, of legacietj is alfo
" S ju'it barotittm feu bominum meo~ fuer'tt. (text, Roffism. c, 34. p. 51.^
rum fKcunicm juam mn didcrit vel dare " Lord Lyttlet. Hen. II. vol. I. 536,
Jif//oJuent, uxor fuoy Jive liberi, aut fa' Hearne ad Gul. Ncubr. 711.
rentes et Ugitimi homines ejus, earn pro- P Swtahook, dejure Suetn, I, 3. <r. 8,
9nima ejus dividsnt,Jicut cis melius -vifun
7 ftai
$S Private Book III.
ftill more apparently injurious, by depriving the legatees of
that right, with which the laws of the land and the will of
the deceafed have invefted them : aud therefore, as a confe-
quential part of teftamentary jurifdidlion, the fpiritual court
adminifters redrefs herein, by compelling the executor to pay
them. But in this lait cafe the courts of equity exercife a
concurrent jurifdiftion with the ecclefiaftical courts, as inci-
dent to fome other fpecies of relief prayed by the complainant ;
as to compel the executor to account for the teftator's efFels,
or aflent 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 jurifdil:ions, the caufe, when once brought there,
receives there alfo it's full determination.
These are the principal injuries, for which the party
grieved either muft, or may, feek his remedy in the fpiritual
courts. But before I entirely difmifs this head, it may not
be improper to add a fhort word concerning the method of
proceeding in thefe tribunals, with regard to the redrefs of
injuries.
It muft (in the firft place) be acknowleged, to the ho-
nour of the fpiritual courts, that though they continue to this
r ort 1 ^^^ *^ decide many queftions which are properly of temporal
cognizance, yet juftice is in general fo ably and impartially
adminiftered in thofe tribunals (efpeciallyofthefuperiorkind,)
and the boundaries of their power are now fo well known and
cftablifhed, that no material inconvenience at prefent arifes
from this jurifdi<l:ion ftill continuing in the antient channel.
And, ftiould an alteration be attempted, great confufion
would probably arife, in overturning long eftabliftied forms,
and new-modelling a courfe of proceedings that has now
prevailed for feven centuries.
The eftabliftiment of the civil law procefs in all the ec-
clefiaftical courts was indeed a mafterpiece of papal difcern-
ment, as it made a coalition imprafticable between them and
the national tribunals, without manifeft inconvenience and
hazard.
Ch. 7. Wrongs. pp
hazard. And this confideration had undoubtedly It's weight
in caufing this meafure to be adopted, though many other
caufts concurred. The time when the pandeds of Juftinian
were difcovered afrefh and refcuedfrom the dud of antiquity,
the eajjtrnefs with which they were ftudied by the popifli ec-
clefiailics, and the confequent diflcntions between the clergy
and the laity of England, have formerly "^ been fpoken to at
large. I (hall only now remark upon thofe colledions, that
their being written in the Latin tongue, and referring fo
much to the will of the prince and his delegated officers of
juftice, fufficiently recommended them to the court of Rome,
exclufive of their intrinfic merit. To keep the laity in the
darkeft ignorance, and to monopolize the little fcience, which
then exifted, entirely among the monkilh clergy, were deep-
rooted principles of papal policy. And, as the bifliops of
Rome afFeled in all points to mimic the imperial grandeur,
as the fpiritual prerogatives were moulded on the pattern of
the temporal, fo the canon law procefs was formed on the
model of the civil law : the prelates embracing with the ut-
moft ardor a method of judicial proceedings, which was car-
ried on in a language unknown to the bulk of the people,
which banifhed the intervention of a jury, (that bulwark of
Gothic liberty,) and which placed an arbitrary power of de- [ lOO 1
cifion in the bread of a fingle man.
The proceedings in the ecclefiaftical courts are therefore
regulated according to the pradice of the civil and canon
laws; or rather according to a mixture of both, corredcd and
new- modelled by their own particular ufages, and the inter-
pofition of the courts of common law. For, if the proceed-
ings in the fpiritual court be ever fo regularly confonant to
the rules of the Roman law, yet if they be manifeftly repug-
nant to the fundamental maxims of the municipal laws, to
which upon principles of found policy the ecclefiaftical pro-
cefs ought in every ftate to conform ^j (as if they require two
witncffcs to prove a fad, where one will fuffice at common
law;) in fuch cafes a prohibition will be awarded againll
t Vol. I. iatrod. 1. ' Warb, alliance. 179.
them.
loo Private Book IIL
them . But, under thefe reftridlions, their ordinary courfe
of proceeding is ; firft, by citatiotiy to call the party injuring
before them. Then by libel libellus^ a little book, or by ar-
ticles drawn out in a formal allegation, to fet forth the com-
plainant's ground of complaint. To this fucceeds the defend'
ant's anfwer upon oath, when, if he denies or extenuates
the charge, they proceed to proofs by witnefles examined, and
their depofitions taken down in writing, by an officer of the
court. If the defendant has any circumftances to offer in his
defence, he mud alfo propound them in what is called his
defenfive cdlegation^ to which he is entitled in his turn to
xhQpl(tintiff'sa7ifweru^on oath, and may from thence proceed
to proofs as well as his antagonift. The canonical doftrinc
of purgation, whereby the parties were obliged to anfwer upon
oath to any matter, however criminal, that might be ob-
jedled againfl; them, (though long ago overruled in the court
of chancery, the genius of the Englifh law having broken
through the bondage impofed on it by it's clerical chancellors,
and afferted the doflrines of judicial as well as civil liberty,)
continued till the middle of the laft century to be upheld by
the fpiritual courts : when the legiflature was obliged to in-
terpofe, to teach them a leifon of fimilar moderation. By the
ftatute of 13 Car. II. c. 12. it is enafted, that it (hall not
Jbe lawful for any bifhop or ecclefiaftical judge, to tender or
adminifter to any perfon whatfoever, the oath ufually called
the oath ex cfjicioy or any other oath whereby he may be com-
pelled to confefs, accufe, or purge himfelf of any criminal
matter or thing, whereby he may be liable to any cenfure or
punifhment. When all the pleadings and proofs are con-
cluded, they are referred to the confideration, not of a jury,,
but of a fingle judge ; who takes information by hearing ad-
vocates on both fides, and thereupon forms his interlocutory
decree or definitive fentence at his own difcretion : from which
there generally lies an appeal, in thefeveral ftages mentioned
in a former chapter ' ; though, if the fame be not appealed
from in fifteen days, it is final, by the ftatute 25 Hen. VIII.
c 19.
2 Roll. Abr. 300, 30J. * Chap. 5.
But
Gh. 7 Wrongs. loi
But the point in which thefe jurifdiHons are the mod
defelive, is that of enforcing their fentences when pro-
nounced ; for which they have no other procefs but that of
excomtutimcat'ion ; which is defcribed " to be twofold ; the lefs,
and the greater excommunication. The lefs is an ecclefiafti-
cal cenfure, excluding the party from the participation of the
facraments: the greater proceeds farther, and excludes him
not only from thefe but alfo from the company of all chrif-
tians. But, if the judge of any fpiritual court excommu-
nicates a man for a caufe of which he hath not the legal
cognizance, the party may have an alion againft him at
common law, and he is alfo liable to be indicted at the fuit
of the king ^.
Heavy as the penalty of excommunication is, confidered
xn a ferious light, there are, notwithftanding, many obftinate
or profligate men, who would defpife the briitum fulmen of
mere ecclefiaftlcal cenfures, efpecially when pronounced by
a petty furrogate in the country, for railing or contumelious
words, for non-payment of fees, or cofts, or for other trivial
caufes. The common law therefore com.pafEonately (teps in to
the aid of tlie ecclefiaftlcal jurifdidtion, and kindly lends a [ xo2 J
fupporting hand to an otherwife tottering authority. Imitat-
ing herein the policy of our britilh anceftors, among whom,
according to Cscfar '^, whoever were interdiled by the
Druids from their facrificcs, ** in numero impiorum ac fcekra'
" tontm habentur : ab Us cm ties decedutity aditum eorum fermo-
*' nemque defugmnt^ ne quid ex contagione incommodi accipiant z
** neque Us petentihus jus redditur^ tieque honos ullus ccmmunica-
** tury jAnd fo with us by the common law an excommuni-
cated perfon is difabled to do any aft, that is required to be
done by one that is probus et legalis homo. He cannot ferve
upon juries, cannot be a witnefs in any court (3), and, which is
" Co. Litt. 133. w 3 inft. 62 j^ X ^, 1,^11^ Q^ii I 6^
(3 ) In antlent times, a perfon, who by his contempt of the law*
and judgments of the church* had brought upon himfdf the fea-
teijce
tol Private Book lit.
the word of all, cannot bring an alion, either real or per-
fonal, to recover lands or money due to himy. Nor is this
the whole : for if, within forty days after the fentence has
been publifhed in the church, the offender does not fubmit
and abide by the fentence of the fpiritual court, the bifhop
may certify fuch contempt to the king in chancery. Upon
which there iflues out a writ to the fherifFof the county,
called, from the bifhop's certificates, zjignijicavit } or from
it's efFels a writ cle excommunicato capiendo : and the ftierifF
(hall thereupon take the offender, and imprifon him in the
county goal, till he is reconciled to the church, and fuch re-
conciliation certified by the bifhop ; upon which another
writ, de excommunicato deliberando^ ilTues out of chancery to
deliver and releafe him . This procefs feems founded on the
charter of feparation (fo often referred to) of William the
conqueror. *' Si aliquis per fuperbiam elatus ad jujiitiam epifco-
'* palem venire noluerity vocetur femel, fecundoj et tertio : quod
** ft necfic ad emendationem venerity excommunicetur ; et^ft opus
** fuerity ad hoc vindicandum fortitudo et jujlitia regis five vice'
** comiiis adhibeatur." And in cafe of fubtration of tithes,
a more fummary and expeditious affiftance is given by the
ftatutes of 27 Hen. VIII. c. 20. and 32 Hen. VIII. c. 7.
which enadl, that upon complaint of any contempt or
xnilbehaviour of the eccleliaftical judge by the defend-
ant in any fuit for tithes, any privy counfellor, or any
103 1 two juftices of the peace (or, in cafe of difobedience to a defi-
nitive fentence, any two juftices of the peace) may committhe
party to prifon without bail or mainprize, till he enters into
T Lift. 201. F. N. B. 62.
tence of excomnmnication, was thought to be influenced by no re-
ligious fentiments, and confequently to be regardlcfs of the obli-
gation of an oath ; but as the fame degree of reverence is not at
prefent attached to the cenfures and decrees of the fpiritual judge*
and as this incapacity of witneffes is a great obftruftion to the ad-
miniftration of juftice, it ought to be removed by the authority of
the leglflature*
recog-
Ch. 7. Wrong s. ioj
recognizance with fufficient furetles to give due obedience to
the procefs and fentence of the court. Thefe timely aids,
which the common and ftatute laws have lent to the ecclefiaf-
tical jurifdidtion, may ferve to refute that groundlefs notion
which fome are too apt to entertain, that the courts of Weft-
minfter-hall are at open variance with thofe at doftors' com-
mons. It is true that they are fometimes obliged to ufe a
parental authority, in correcting the exceflcs of thefe inferior
courts, and keeping them within their legal bounds ; but, on
the other hand, they afford them a parental affiftance in reprefT-
ing the infolence of contumacious delinquents, and refcuing
their jurifdilion from that contempt, which for want of fuffi
cient compulfive powers would otherwife be fure to attend it.
II. I AM next to confider the injuries cognizable in the
court military f or court of chivalry. The j urifdiftion of which
is declared by ftatute 13 Ric. II, c. 2. to be this : ** that it
" hath cognizance of contrals touching deeds of arms or
" of war, out of the realm, and alfo of things which touch
** war within the realm, which cannot be determined or dif-
*' cufled by the common law ; together with other ufages
** and cuftoms to the fame matters appertaining." So that
wherever the common law can give redrefs, this court hath
no jurifdition \ which has thrown it entirely out of ufe as to
the matter of contratSls, all fuch being ufually cognizable in
the courts of Weftminfter-hall, if not direlly, at leaft by
fiction of law : as if a contract be made at Gibraltar, the
plain tiff may fuppofe it made at Northampton ; for the loca-
lity, or place of making it, is of no confequence with regard
to the validity of the contrail;.
. The words, " other ufages and cuftoms," fupport the claim
of this court, i. To give relief to fuch of the nobility and
gentry as think themfelves ag;grieved in matters of honour ;
and 2. To keep up the dlftiniflion of degrees and quality.
Whence it follows, that the civil jurifdidiion of this court of r 104 I
chivalry is principally in two points ^ the redreffing injuries
Vol. III. I of
i4 Private Book. III.
of honour, and correcting encroachments in matters of coat-
armour, precedency, and other diftindtions of families.
As a court of honour, it is to give fatisfadlion to all fuch
as are aggrieved in that point ; a point of a nature fo nice and
delicate, that it's wrongs and injuries efcape the notice of the
common law, and yet are fit to be redrefled fomewhere. Such,
for inftance, as calling a man coward, or giving him the
lie > for which, as they are produ6live of no immediate da-
mage to his perfon or property, no adion will lie in the courts
at Weftminfter : and yet they are fuch injuries as will prompt
every man of fpirit to demand fome honourable amends, which
by the antient law of the land was appointed to be given in
the court of chivalry '. But modern refolutions have deter-
mined, that how much foever fuch a jurifdiction may be ex-
pedient, yet no al:ion for words will at prefent lie therein ''.
And it hath always been moft clearly holden ", that as this
court cannot meddle with any thing determinable by the
common law, it therefore can give no pecuniary fatisfaftion
or damages ; inafmuch as the quantity and determination
thereof is ever of common law cognizance. And therefore
this court of chivalry can at moft only order reparation in
point of honour ; as, to compel the defendant mendacium ftbi
ipf% imponercy or to take the lie that he has given upon him-
felf, or to make fuch other fubmiffion as the laws of honour
may require **. Neither can this court, as to the point of re-
paration in honour, hold plea of any fuch word, or thing,
wherein the party is relievable by the courts of common law.
As if a man gives another a blow, or calls him thief or mur-
derer ; for in both thefe cafes the common law has pointed
out his proper remedy by action.
[ 105 ] Asto the other point of it's civil jurifdidiiion, the redrefling
of incroachments and ufurpations in matters of heraldry and
coat- armour : it is the bufinefs of this court, according to
Yearbook, 37 Hen. VI. '2 1. Seidell P. C. 11.
f duels, c. lo. Hal. hift. C. L. 37. * Hal. hift. C. L. 37.
" Salk, 533. 7 Mod. 125. a Hawk. " i Roll. Abr. 12S.
iir
Cfi. 7. Wrong s. 105
fir Matthew Hale, to adjuft the right of armorial enCgns,
bearings, crefts, fupporters, pennons, ^c ; and alfo rights
of place or precedence, where the king's patent or aft of
parliament (which cannot be overruled by this court) have
not already determined it.
The proceedings in this court are by petition, in a fum-
xnary way ; and the trial not by a jury of twelve men, but by
witnefTes, or by combat *. But as it cannot imprifon, not
being a court of record, and as by the refolutions of the fupe-
rior courts it is now confined to fo narrow and reflrained
a jurifdidlion, it has fallen into contempt and difufe. The
marihalling of coat-armour, which was formtrly the pride
and ftudy of all the beft families in the kingdom, is now
greatly difregarded ; and has fallen into the hands of certain
gfficers and attendants upon this court, called heralds, who
confider it only as a matter of lucre and not of juftice :
whereby fuch falfity and cpnfufion have crept into their re-
cords, (which ought to be the Handing evidence of families,
defcents, and coat-armour) that, though formerly fome credit
has been paid to their teftimony, now even their common feal
will not be received as evidence in any court of juftice in the
kingdom ^ But their original viGtation books, compiled
when progrcfles were folemnly and regularly made into every
part of the kingdom, to inquire into the itate of families,
and to regifterfuch marriages and defcents as were verified to
them upon oath, are allowed to be good evidence of pedi-
grees^. And it is much to be wlfhed, that this practice of
vifitation at certain periods were revived ; for the failure of
inquifitions/s/? mortem^ by the abolition of military tenures,
combined with the negligence of the heralds in omitting their
ufual progrefles, has rendered the proof of a modern defcent,
for the recovery of an eftate or fuccefiion to a title of honour, f lo6 ]
more difficult than that of an ancient. This will be indeed
remedied for the future, with refpeft to claims of peerage, by
a late Handing order ^ of the houfe of lords \ direding the
Co. Litt. 261. Comb. 63.
' % Roll. Air. W6. z Jon. za4. ' 1 1 May, 1767.
I % " heralds
iG^ P R I V A T K Book lit.
heralds to take exa8: accounts and prefervc regular entries o
all peers and peerefles of England, and their refpediive de-
fcendants ; and that an exaft pedigree of each peer and his
family fhall, on the day of his firft admiffion, be delivered
to the houfe by garter, the principal king at arms. But the
general inconvenience, afFedling more private fucceffions, ftill
continues without a remedy.
III. Injuries cognizable by the courts maritime, or ad-
miralty courts, are the next objeft of our inquiries. Thefe
courts have jurifdi(5lion and power to try and determine all
maritime caufes; or fuch injuries, which, though they arc
In their nature of common law cognizance, yet being com-
mitted on the high feas, out of the reach of our ordinary
courts of juftice, are therefore to be remedied in a peculiar
court of their own. All admiralty caufes muft be therefore
caufes arifing wholly upon the fea, and not within the pre-
cin61:s of any county ' (/] ). For the ftatute 1 3 Ric. II. c. 5. di-
redls that the admiral and his deputy fhall not meddle with
any thing, but only things done upon the fea ; and the ftatute
15 Ric. II. c. 3. declares that the court of the admiral hath
no manner of cognizance of any contradl, or of any other
thing, done within the body of any county, either by land or
by water ; nor of any wreck of the fea : for that muft be cad
on land before it becomes a wreck i. But it is otherwife of
t\iingsJiotfam,jetfami and ligan ; for over them the admiral
hath jurifdition, as they are in and upon the fea "*. If part
of any contral, or other caufe of ation, doth arife upon
the fea, and part upon the land, the common law excludes^
the admiralty court from it's jurifdilion j for, part belonging
properly to one cognizance and part to another, the common
or general law takes place of the particular '. Therefore,
Co. Litt. 260. Kob. 79. "^ 5 Rep. 106.
) S:e book I. ch. %. > Co. Litt. 261.
(4) See much learning rcfpefting the jurifdiftion of the court
f admiralty In tlie cafe of Le Caux v. Ederif Dovg. 572.
4 though
I
Ch. 7 Wrongs. 107
though pure maritime acquifitions, which are earned and
become due on the high feas, as feamen's wages, are one
proper objedt of the admiralty jurifdidion, even though the
contrail for them be made upon laud "" ; yet, in general, if
there be a contrail made in England and to be executed upon
the feas, as a charter party or covenant that a ihip fliall fail
to Jamaica, or fliall be in fuch a latitude by fuch a day j or
a contract made upon the fea to be performed in England, as
a bond made on fliipboard to pay money in London or the
like : thefe kinds of mixed contracts belong not to the admi-
ralty jurifdition, but to the courts of common law ". And
indeed it hath been farther holden, that the admiralty court
cannot hold plea of any contradt under fcal .
And alfo, as the courts of common law have obtained a
concurrent jurifdilion with the court of chivalry with regard
to foreign contrads, by iiippofing them made in England j
fo it is no uncommon thing for a plaintiiF to feign that a
contract, really made at fea, was made at the royal exchange,
or other inland place, in order to draw the cognizance of the
fuit from the courts of admiralty to thofe of Weftminfl:er-
hall P. This the civilians exclaim againft loudly, as inequi-
table and abfurd ; and fir Thomas Ridley' hath very gravely
proved it to be impoffible, for the fliip in which fuch caufe
of action arifes to be really at the royal exchange in Cornhill.
But our lawyers juftify this fiftion, by alleging (as before)
that the locality of fuch contrails is not at all eflential to the
merits of them ; and that learned civilian himfelf feems to
have forgotten how much fuch fictions are adopted and en-
couraged in the Roman law : that a fon killed in battle is
fuppofed to live for ever for the benefit of his parents ^j and
that, by the fidiion of pojiliminium and the Ux Cornelia, cap-
tives, when freed from bondage, were held to have never
been prifoners % and fuch as died in captivity were fuppofed
to have died in their own country .
" I Ventr. 146. View of tbeciy'illaw, b. 3. p. i. 3.
" Hob. 12. Hal. hift. C, L. 35. ' hft. 1. tit. 25.
Hob. 212. Fy.49. 15. 12. 6.
f^lnft. 134. ii/.49. 15. iS.
1 3 Where
io8^ Private Book III,
Where the admiral's court hath not original jurifdiflion
of the caufe, though there fhould arife in it a queftion that
is proper for the cognizance of that court, yet that doth not
alter nor take away the exclufive jurifdiftion of the common
law ^. And fo, vice verfay if it hath jurifdi6lion of the ori-
'gin^l, it hath alfo jurifdiftion of all confequential queftions,
though properly determinable at common law ". Wherefore,
among other reafons, a fuit for beaconage of a beacon Hand-
ing on a rock in the fea may be brought in the court of ad-
miralty, the admiral having an original jurifdil:ion over
beacons '*'. In cafe of prizes alfo in time of war, between
our own nation and another, or between two other nations,
which are taken at fea, and brought into our ports, the courts
of admiralty have an undifturbed and exclufive jurifdilion to
determine the fame according to the law of nations *.
The proceedings of the courts of admiralty bear much re-
femblance to thofe of the civil law, but are not entirely found-
ed thereon : and they likewife adopt and make ufe of other
laws, as cccafion requires ', fuch as the Rhodian laws and
the laws of Oleron ^. For the law of England, as has fre-
quently been obferved, doth not acknowlege or pay any de-
ference to the civil law confidered as fuch , but merely per-
mits it's ufe in fuch cafes where it judged it's determinations
equitable, and therefore blends It, In the prefent inftance,
with other marine laws : the whole being correied, altered,
and amended by a<Sls of parliament and common ufage j fo
that out of this compofition a body of juriiprudence is ex-
tradled, which owes it's authority only to It's reception here
by confent of the crown and people. The firft. procefs in
thefe courts is frequently by arreft of the defendant's perfon^ ;
and they alfo take recognizances or ftlpulation of certain
fidejuflbrs in the nature of bail % and In cafe of default may
Ccmb. 46a. y H'le, hift. C. L. 36. Co.;Litt. 11.
13 Rep. 53 2 Lev. 25. Hardr. 183. ^ Cktkt frax. cur. adm. 13.
* I Sid. 158. ^ Ibid. ir. I Roll. Abr. 531,
? 2 Show. 232. Comb. 474. Raym. 78. Lord Raym, ii86.
imprifori
Ch. 7. Wrongs. 109
imprifon both them and their principal ''. They may alfo
fine and imprifon for a contempt in the face of the court ".
And all this is fupported by immemorial ufage, grounded on
theneceflity of fupporting ajurifdilion fo ex ten five 'j though
oppofite to the ufual dodrines of the common law : thefe be-
ing no courts of record, becaufe in general their procefs is
much conformed to that of the civil law '.
IV. I AM next to confider fuch injuries as are cognizable
by the courts of the common law. And herein I fhall for
the prefent only remark, that all poffible injuries whatfoever,
that did not fall within the exclufive cognizance of either the
ccclefiaftical, military, or maritime tribunals, are for that very
reafon within the cognizance of the common law courts of
juftice. For it is a fettled and invariable principle in the laws
of England, that every right when withheld muft have a re-
medy, and every injury it's proper redrefs. The definition
and explication of thefe numerous injuries, and their refpec-
tive legal remedies, will employ our attention for many fub-
fequent chapters. But, before we conclude the prefent, I
fhall juft mention two fpecies of injuries, which will properly
fall now within our immediate confideration : and which are,
cither when juftice is delayed by an inferior court that has
proper cognizance of the caufe j or, when fuch inferior court
takes upon itfelf to examine a caufe and decide the merits
without a legal authority.
I. The firft of thefe injuries, refufal or neglefl of juftice,
is remedied either by writ of precede fi do or of mandamus, A
v/x\toi procedendo ad judicium^ iflues outof the court of chan-
cery, where judges of any fubordinate court do delay the par-
ties ; for that they will not give judgment, either on the one
fide or on the other, when they ought fo to do. In this cafe
a writ oi procedendo (hall be awarded, commanding them in
the king's name to proceed to judgment j but without fpeci-
* 1 Roll. Abr. 531. Godb. 193. a6o. * i Keb. 552.
1 Ventr. i. "^ Bro. Ahr, t, trror. tjj,
1 4 fylng
lop Private Book III.
fying any particular judgment, for that (if erroneous) may
C no ] be fet afide in the courfe of appeal, or by writ of error or
falfe judgment : and, upon farther negleft or refufal, the
judges of the inferior court may be punifhed for their con-
tempt, by writ of attachment returnable in the king's bench
or common pleas ^
A WRIT of mandamus is, in general, a command ifluing
in the king's name from the court of king's bench, and di-
refted to any perfon, corporation, or inferior court of judi-
cature within the king's dominions, requiring them to do
fome particular thing therein fpecified, which appertains to
their office an^ duty, and which the court of king's bench
has previoufly determined, or at leaft fuppofes to be confo-
nant to right and juftice. It is a high prerogative writ, of a
mod extenfivc remedial nature : and may be iffiied in fome
cafes where the injured party has alfo another more tedious
method of redrefs, as in the cafe of admiffion or reftitution to
an office : but it iffiies in all cafes where the party hath a
right to have any thing done, and hath no other fpecific
means of compelling it's performance. A mandamus therefore
lies to compel the admiffion or reftoration of the party apply-
ing, to any office or franchife of a public nature, whether
fpiritual or temporal ; to academical degrees; totheufeofa
meeting-houfe, k^c : it lies for the production, infpection,
or delivery, of public books and papers ; for the furrender of
the regalia of a corporation j to oblige bodies corporate to
affix their common feal ; to compel the holding of a court ;
and for an infinite number of other purpofes, which it is im-
poffible to recite minutely. But at prefent we are more par-
ticularly to remark, that it iflues to the judges of any inferior
court, commanding them to do juftice according to the
powers of their office, whenever the fame is delayed. For it
is the peculiar bufinefs of the court of king's bench to
fuperintend all inferior tribunals, and therein to inforce
the due exercifeof thofe judicial or minifterial powers, with
'F. N. B. 153, iS4i 240*
which
Ch.7 Wrongs. ho
which the crown or legiflature have invelled them : and this
not only by reftraining their excefles, but aifo by quickening
their negligence, and obviating their denial of juftice. A [ m J
mandamus may thgrefore be had to the courts of the city of
London, to enter up judgment S; to the fpiritual courts to
grant an adminiftration, to fwear a church-warden, and the
like. This writ is grounded on a fuggeftion, by the oath of
the party injured, of his own right, and the denial of juftice
below : whereupon, in order more fully to fatisfy the court
that there is a probable ground for fuch interpofition, a rule
is made (except in fome general cafes, where the probable
ground is manifeft) directing the party complained of to fhew
caufe why a writ of mandamus fhould not iflue : and, if he
(hews no fufficient caufe, the writ itfelf Is iflued, at firft in
the alternative, either to do thus, or flgnlfy fome rcafon to
the contrary ; to which a return, or anfwer, muft be made at
a certain day. And, if the inferior judge, or ether perfon to
whom the writ is direted, returns or fignifies an infufficient
reafon, then there iflues in the fecond place z peremptory mati-
damusy to do the thing abfolutely j to which no other return
will be admitted, but a certificate of perfeft obedience and
due execution of the writ. If the inferior judge or other
perfon makes no return, or fails in his refpet and obedience,
he is punifhable for his contempt by attachment. But, if
he, at the firft, returns a fufficient caufe, although it iliould
be falfe in fa6t, the court of king's bench will not try the
truth of the fadt upon affidavits ; but will for the prefent be-
lieve him, and proceed no farther on the mandamus. But then
the party injured may have an alion againll him for his falfe
return, and (if found to be falfe by the jury) fliall recover
damages equivalent to the injury fuftained ; together with a
peremptory mandamus to the defendant to do his duty (5). Thu8
much for the injury of neglel or refufal of juftice.
s RayiDi 214.
(5) See further upon the writ oi mandamus t p. 264, poll,
2. The
111 Private Book IIF.
2. The other injury, which is that of encroachment of
jurifdiftion, or calling one coram nonjudiccj to anfwer in a
court that has no legal cognizance of the caufe, is alfo a
grievance, for which the common law ha^ provided a remedy
by the writ oi prohibition.
r 112 3 -A- PROHIBITION is a M'rit ifluing properly only out of
the court of king's bench, being the king's prerogative writ ;
but, for the furtherance of juftice, it may now alfo be had
in fome cafes out of the court of chancery *, common pleas *,
or exchequer'' ; directed to the judge and parties, of a fuit in
any inferior court, commanding them to ceafe from the pro-
fecution thereof, upon a fuggeftion that either the caufe ori-
ginally, or fome collateral matter arifing therein, docs not
belong to that jurifdidlion, but to the cognizance of fome
other court. This writ may iflue either to inferior courts of
common law; as, to the courts of the counties palatine or
principality of Wales, if they hold plea of land or other mat-
ters not lying within their refpeftive franchifes^; to the
county-courts or courts -baron, where they attempt to hold
plea of any matter of the value of forty fliillings "' : or it may
be direfted to the courts chriftlan, the univerfity courts, the
court of chivalry, or the court of admiralty, where they con-
cern themfelves with any matter not within their jurifd id ion ;
as if the firft (hould attempt to try the validity of a cuftom
pleaded, or the latter a contradl made or to be executed within
this kingdom. Or, if, in handling of matters clearly within
their cognizance, they tranfgrefs the bounds prefcribed to
them by the laws of England ; as where they require two
witneffes to prove the payment of a legacy, a releafe of
tithes ", or the like ; in fuch cafes alfo a prohibition will be
awarded. For, as the fa6l of figning a releafe, or of adtual
* I P. Wms, 476. ' lord Raym. 1408.
^ Hob. 15. ^ Finch. L.451.
Palmer. 523. " C. J.Iiz. 666. Hob.
payment.
Ch. 7' Wrongs. 112
payment, is not properly a fplrltual queftlon, but only al-
lowed to be decided in thofe courts, becaufe Incident or ac-
ceffory to fome original queftion clearly within their jurif-
didlion ; it ought, therefore, where the two laws differ, to be
decided not according to the fpiritual, but the temporal law;
elfc the fame queftion might be determined different ways,
according to the court in which the fuit is depending: an im-
propriety, which no wife government can or ought to endure;
and which is therefore a ground of prohibition. And if ei- C II3 ]
ther the judge or the party fhall proceed after fuch prohibition,
an attachment may be had againft them, to punifh them for
the contempt, at the difcretion of the court that awarded it **;
and an adlion will lie againft them, to repair the party in-
jured in damages. ,
So long as the idea continued among the clergy, that the
ccclefiaftical ftatc was wholly independent of the civil, great
ftruggles were conftantly maintained between the temporal
courts and the fpiritual, concerning the writ of prohibition
and the proper objels of it ; even from the time of the con-
ftitutions of Clarendon, made in oppofition to the claims of
archbifhop Becket in 10 Hen. II. to the exhibition of cer-
tain articles of complaint to the king by archbifhop Bancroft
in 3 Jac. I. on behalf of the ccclefiaftical courts : from
which, and from the anfwers to them figned by all the judges
of "Weftminfter-hallP, much may be coUedled concerning the
reafons of granting and methods of proceeding upon prohibi-
tions. A fhort fummary of the latter is as follows. The
party aggrieved in the court below applies to the fuperior
court, fetting forth in a fuggeftion upon record the nature
and caufe of his complaint, in being drawn ad aliud examen^
by a juiifdidlion or manner of proccfs difallowed by the laws
of the kingdom : upon which, if the matter alleged appears
to the court to be fufHcient, the writ of prohibition immedr-
^tcly iffues ; commanding the judge not to hold, and the party
F. N. B. 40, 9 z inft. 60161?.
3 Jiol
113 Private Book III.
not to profecute, the plea (6). But fometimes the point maybe
too nice and doubtful to be decided merely upon a motion : and
then/ for the more folemn determination of the queflion, the
party applying for the prohibition is diredbed by the court to
declare in prohibition; that is, to profecute an adlion, by filing
a declaration, againil the other, upon a fuppofition or fiction
(which is not traverfable "J) that he has proceeded in the fuit
below, notwithftanding the writ of prohibition And if, upon
demurrer and argument, the court fhall finally be of opinion,
that the matter fuggefted is a good and fufficient ground of
r 114 1 prohibition in point of law, then judgment with nominal da
mages (hall be given for the party complaining, and the de-
fendant, and alfo the inferior court, fhall be prohibited from
proceeding any farther. On the other hand, if the fuperior
court fhall think it no competent ground for reftraining the
inferior jurifdi(lion, then judgment fhall be given againft
him who applied for the prohibition in the court above, and a
writ of confultation fliall be awarded ; fo called, becaufe, upon
deliberation and confultation had, the judges find the prohi-
bition to be ill founded, and therefore by this writ they return
the caufe to it's original jurifdidion, to be there determinedj
s Barn, Not. 410. 148.
(6) The general grounds for a prohibition to the ecclefiaftica!
conrts are, either a defeft of jurifdiftion or a defeft in the mode
of trial. If any facl be pleaded in the eourt below, and the par-
ties are at ifTue, that court has no jurifdiftion to try it, becaufe ft
cannot proceed according to the rules of the common law ; and in
fuch cafe a prohibition lies. Or where the fpiritual court has no
original jurifdtftion, a prohibition may be granted even after fen-
teuce. But where it has jurifdiftion, and gives a wrong judg-
ment, it is the fubjed matter of appeal and not of prohibition.
hord KenyoHy 3 T. R. 4.
But when a prohibition is granted after fentence, the want of
jurifdidion muft appear upon the face of the proceedings of the
fpiritual court. Jbkl. Cozvp. ^iz* See alfo 4 7. R. 382.
Cti. 7 Wrongs. 114
in the inferior court. And even in ordinary cafes, the writ
of prohibition is not abfolutely final and conclufive. For,
though the ground be a proper one in point of laiVf for
granting the prohibition, yet if the faB that gave rife to it
be afterwards falfified, the caufe (hall be remanded to the
prior jurifdition. If, for inftance, a cuftom be plead-
ed in the fpiritual court j a prohibition ought to go, be-
caufe that court has no authority to try it: but, if the
fat of fuch a cuftom be brought to a competent trial, and
be there found falfe, a writ of confultatmi will be granted.
For this purpofe the party prohibited may appear to the pro-
hibition, and take a declaration, (which muft always purfue
the fuggeftion,) and fo plead to iflue upon it; denying the
contempt, and traverfing the cuftom upon which the prohi-
bition was grounded : and, if that iflue be found for the de-
fendant, he fhall then have a writ of confultation. The writ
of confultation may alfo be, and is frequently, granted by the
court without any adlion brought ; when, after a prohibition
iflued, upon more mature confideration the court are of opi-
nion that the matter fuggefted is not a good and fufficient
ground to ftop the proceedings belov/. Thus careful has the
law been, in compelling the inferior courts to do ample and
fpeedy juftice; in preventing them from tranfgrefling their due
bounds; and in allowing them the undifturbed cognizance
of fuch caufes as by right, founded on the ufage of the king-
dom or aft of parliament, do properly belong to their jurif-
diftiyn.
u5 PaiVATE Book IIL
CHAPTER THE EIGHTH.
OF WRONGS, AND THEIR REMEDIES,
RESPECTING THE RIGHTS OF PERSONS.
THE former chapters of this part of our commentaries
having been employed in defcribing the feveral methods
o redrefling private vv^rongs, either by the mere al of the
parties, or the mere operation of 1?lw j and in treating of the
nature and feveral fpecies of courts ; together w^ith the cog-
nizance of wrongs or injuries by private or fpecial tribunals,
and the public ecclefiaftical, military, and maritime jurifdic-
tions of this kingdom ; I come now to confider at large, and
in a more particular manner, the refpeclive remedies in the
public and general courts of common law, for injuries or pri-
vate wrongs of any denomination whatfoever, not exclufively
appropriated to any of the former tribunals. And herein I
{hall, firft, define the feveral injuries cognizable by the courts
of common law, with the refpelive remedies applicable to
each particular injury : and (hall, fecondly, defcribe the me-
thod of purfuing and obtaining thefe remedies in the feveral
courts.
First then, as to the feveral injuries cognizable by the
courts of common law, with the refpeQive remedies applica-
ble to each particular injury. And, in treating of thefe, I
(hall at prefent confine myfelf to fuch wrongs as may be com-
mitted in the mutual intercourfe between fubjeft and fub-
jedl i which the king as the fountain of juftice is officially
boun4 toredrefs in the ordinary forms of law: refervingfuch
injuries
Ch. 8. Wrongs. ii6
injuries or encroachments as may occur between the crown
and the fubjeft to be diftinftly confidered hereafter, as the
remedy in fuch cafes is generally of a peculiar and eccentri-
cal nature.
Now, fince all wrong-may be confidered as merely a priva-
tion of right, the plain natural remedy for every fpecics of
wrong is the being put in pofleflion of that right, whereof
the party injured is deprived. This may either be efFefted by
a fpecific delivery or refloration of the fubjedl-matter in dif-
putc to the legal owner ; as when lands or perfonal chattels
are unjuftly withheld or invaded : or, where that is not a
pofiible, or at leaft not an adequate remedy, by making the
fufFerer a pecuniary fatisfacii^tion in damages ; as in cafe of a{^
fault, breach of contradl, ^c : to which damages the party
injured has acquired an incomplete or inchoate right, the in-
(lant he receives the injury^; though fuch right be not fully
afcertained till they are aflcfled by the intervention of the law.
The inftruments whereby this remedy is obtained (which arc
fometimes confidered in the light of the repiedy itfelf) are a
diverfity of fuits and aftions, which are defined by the mir-
ror'' to be "the lawful demand of one's right :" or as Brac-
ton and Fleta exprefs it, in the words of JnHinhn'^fjus pro-
fequendi injudicio quod alicui debet ut\
The Romans introduced, pretty early, fet forms for aftions
and fuits in their law, after the example of the Greeks; and
made it a rule, that each injury fhould be redreffed by it's pro-
per remedy only. ** AlioneSy fay the pandefts, compofttae
" funty quibus inter fe homines difceptarent ; quas aBiones., ne po-
*' pultis prout vellet injiititeret, certasfolennefqiie ejfe voluerunt^.**
The forms of thefe actions were originally prcferved in the
books of the pontifical college, as choice and ineftimable fc-
crets i till one Cneius Flavius, the fecretary of Appius Clau-
dius, ftole a copy and publiflied them to the people =. The
See book II. ch, 29, * Ff. 1. a. 2. 6.
* c. 2. I. , Cic. fra Muracna. Xi. de oral.
' Jnji. 4. 6./r. /. I.e. 41.
concealment
117 Private Book III.
concealment was ridiculous : but the eflablifhment of fome
ftandard was undoubtedly neceflary, to fix the true ftate of a
queflion of right ; left in a long and arbitrary procefs it
might be (hifted continually, and be at length no longer dif-
cernible. Or, as Cicero expreflcs it '^, ^'' funtjura^ fiintfor'
** mulaey de omnibus rebus conjlitutaey ne quis aut in genere in-^
** juriacy aut in ratione a&ionisy errare pojftt. Exprejfae enim
' funt ex uniufcujufque damnoy dolorey incommodoy calamitate,
** injuriay publicae a praetore formulae y ad quas privata lis ac-
** commodatury And in the fame manner our Bradlon,
fpeakiiig of the original writs upon which all our adlions are
founded, declares them to be fixed and immutable, unlefs by
authority of parliaments. And all the modern legiflators of
Europe have found it expedient, from the fame reafons, to fall
into the fame or a fimilar method. With us in England the
feveral fuits, or remedial inftruments of juftice, are from the
fubjedl of them diftinguifhed into three kinds j adlions /i^r-
fanaly realy and mixed.
Personal alions are fuch whereby a man claims a debt,
or perfonal duty, or damages in lieu thereof ; and, likewife,
whereby a man claims a fatisfaftion in damages for fome injury
done to his perfon or property. The former are faid to be
founded on contrails, the latter upon torts or wrongs : and
they are tht fame which the civil law calls ** aBiones in per^
*' fonamy quae adverfus eum intenduntur^ qui ex contractu vel
*' deliBo obligatus ejl aliquid dare vel concedere ''.'* Of the for-
mer nature are all adions upon debt or promifes ; of the lat-
ter all adlions for trefpaffes, nuifances, aflaults, defamatory
words, and the like.
Real adlions, (or, as they are called in the mirror '^yfeodal
aftions) which concern real property only, are fuch whereby
the plaintiff, here called the demandant, claims title to have
^ny lands or tenements, rents, commons, or other heredita-
^ Pro. Sht. Kojcio. . 8. ccnfenju et voluntate eerum. (I, 5, de ex
Sunt quaedam hrevia fcrmata fuptr ceptioniius. c. IJ, . aJ
cerlis cafilus decurfuf etdecommumcoiifi' ^ Ifift- i^-, 6, 15,
ko tolius regni af probata et conce'a, qiiae * C. 2, . 6.
fuldtm naUaunu! mutari pcttrint abjque
mentSy
Ch. 8. Wrongs.' itg
ments, in fee-fmiple, fee-tail, or for term of life. By thefii
alliens formerly all difputes concerning real cftatei were
decided ; but they are now pretty generally laid afide in
pradlice, upon account of the great nicety required in their
management, and the inconvenient length of their procefs :
a much more expeditious method of trying titles being fince
introduced, by other adlions perfonal and mixed.
Mixed a6lions are fuits partaking of the nature of the
other two, whereirf fome real property is demanded, and
alfo perfonal damages for a wrong fudained. As for iri-
ftance, an aclion of wafte : which is brought by him who
hath the inheritance, in remainder or reverfion, againft the
tenant for life, who hath committed wafte therein, to re-
cover not only the land wafted, which would make it
merely a real alion ; but alfo treble damages, in purfuance
of the ftatute of Gloucefter'', which is a pf/y^^w^/recompencej
and fo both, being joined together, denominate it a vuKed
a^lion.
Under thefe three heads may every fpedcs of remedy by
fuit or action in the courts of common law be comprized.
But in order efFeftually to apply the remedy, it is firft necef-
fary to afcertain the complaint. I proceed therefore now to
enumerate the feveral kinds, and to inquire into the refpec-
tive natures, of all private wrongs, or civil injuries, which
may be offered to the rights of either a man's perfon or his
property ; recounting at the fame time the refpe6live reme-
dies, which are furnifhed by the law for every infralion of
right. But I muft firft beg leave to premifc, that all civil
injuries are of two kinds, the one ivithout force or violence, as
Dander or breach of contract ; the other coupled ivith force
and violence, as batteries, or falfe imprifonment '. Which
latter fpecies favour fomething of the criminal kind, being
always attended with fome violation of the peace j for which
in ftridnefs of law a fine ought to be paid to the king, as
k 6 Ed. I. c. 5. Finch. L, 184.
Vol. III. K well
119 Private Book III.
well as a private fatisfalion to the party injured . And this
diftin^lion of private wrongs, into injuries with and ivith~
out force, we fliall find to run through all the variety of
which we are now to treat. la confidering of which, I (hall
follow the fame method that was purfued with regard to
the diftribution of rights : for as thefe are nothing elfe but
an infringement or breach of thofe rights, which we have
before laid down and explained, it will follow that this nega-
tive fyftem of wrongSy mud correfpond and tally with the
former pofitive fyftem, of rights. As therefore we divided "
all rights into thofe of perfons, and thofe of ihingSy fo we
rouft make the fame general diftribution of injuries into
fuch as affedl the rights of perfons^ and fuch as afFedl tlic
rights of property.
The rights of perfons, we may remember, were diftribut-
ed into ahfolute and relative : abfolutef which were fuch as
appertained and belonged to private men, confidered merely
as individuals, or (ingle perfons ; and relative^ which were
incident to them as members of fociety, and connefted to
each other by various ties and relations. And the abfotute
rights of each individual were defined to be the right of per-
fonal fecurity, the right of perfonal liberty, and the right of
private property, fo that the wrongs or injuries affecting
them muft confequently be of a correfpondent nature.
I. As to injuries which afFeft the perfonal fecurity of in-
dividuals, they are either injuries againft their lives, their
limbs, their bodies, their health, or their reputations.
1. With regard to the firfi: fubdivifion, or injuries afFel:-
ing the life of man, they do not fall under our prefent con-
templation ; being one of the moft atrocious fpecies of crimes,
the fubjet of the next book of our commentaries.
r 120 1 2> 3" The two next fpecies of injuries, afFeHng the limbs
or bodies of individuals, I fliall confider in one and the fame
view. And thefe may be committed, i . By /^r^a// and me-
" Finch. L. 198. Jcnk.Cent. 185. " See boakl. ch. i.
naces^
C^' 8. Wrongs. 120
naces of bodily hurt, through fear of which a man's bufinefs
IS interrupted. A menace alone, without a confequent in-
convenience, makes not the injury ; but, to complete the
wrong, there muft be both of them together . The remedy
for this is in pecuniary damages, to be recovered by aftion of
trefpafs vi et armis f ; this being an inchoate, though not an
abfolute violence. 2. By afiu/t ; which is an attempt or
oflFer to beat another, without touching him ; as if one lifts
up his cane, or his fill, in a threatening manner at another ;
or ftrikes at him, but mifles him ; this is an aflault, wfultus,
which Finch -J defcribes to be " an unlawful fetting upon
*< one's perfon." This alfo is an inchoate violence, amounting
confiderably higher than bare threats ; and therefore, though
no adual fufFering is proved, yet the party injured may have
redrefs by aclion of trefpafs vi et armis ; wherein he fhall re-
cover damages as a compcndition for the injury. 3. By bat-
tery : which is the unlawful beating of another. The leafl
touching of another's perfon wilfully, or in anger, is a bat-
tery ; for the law cannot draw the line between diiFerent de-
grees of violence, and therefore totally prohibits^the firfl: and
loweft flage of it : every man's perfon being facred, and no
other having a right to meddle with it, in any the flighteft
manner. And therefore upon a fimilar principle the Corne-
lian law de injurHs proliibited pulfation as well as verheration ;
diflinguifliing verberation, which was accompanied with pain,
from pulfation, which was attended with none ^ But battery-
is, in fome cafes, juftifiable or lawful ; as where one who hath
authority, a parent or matter, gives moderate corredlion to
his child, his fcholar, or his apprentice. So alfo on the prin-
ciple of felf-defence : for if one ftrikes me firft, or even only
aflaults me, I may ftrike in my own defence ; and, if fued for
it, may plead fon affault demtfne^ or that it was the plaintiff's
own original affault that occafioried it (i). So likewife in de- [ 121 ]
Flch. L. 202. Finch. L, 202.
P Regift. 104. 27 y4^ II. 7 Ediu. * Ff. 47. 10. 5.
W 24.
( I ) But in any criminal profecution by indidmcnt, or informa-
tion for an affault qr battery, the defendant may plead the general
^ 2 idue.
12 1 Private Book. lit.
fence of my goods or poflefllon, if a man endeavours to de-
prive me of them, I may juftify laying hands upon him to
prevent him ; and in cafe he perfifts with violence, I may-
proceed to beat him awayf. Thus too in the exercife of an
office, as that of church-vi^arden or beadle, a man may lay
hands upon another to turn him out of church, and prevent
his difturbing the congregation '. And, if fued for this or
the like battery, he may fet forth the whole cafe, and plead
that he laid hands upon him gently, moll'iter manus hnpojmt^
for this purpofe. On account of thefe caufes of juftification,
battery is defined to be the unlawful beating of another ; for
which the remedy is, as for aflault, by alion of trefpafs vi et
armis : wherein the jury will give adequate damages. 4. By
tuoundifig; which confifts in giving another fome dangerous
hurt, and is only an aggravated fpecies of battery. 5. By
inayhem : which is an injury ftill more atrocious, and confifts
in violently depriving another of the ufe of a member proper
for his defence in fight. This is a battery attended with
this aggravating circumftance, that thereby the party injured
is for ever difabled from making fo good a defence againft
future external injuries, as he otherwife might have done.
Among thefe defenfive members are reckoned not only arms
and legs, but a finger, an eye, and a foretooth % and alfo
fome others ". But the lofs of one of the jaw- teeth, the ear,
or the nofe, is no mayhem at common law ; as they can be
of no ufe in fighting. The fame remedial aftlon of trefpnfs
vi et armis lies alfo to recover damages for this injury, an in-
jury which (when wilful) rio motive can juftify, but necc/-
f I Finch. L. 203. * Finch. L. 204..
I Sid. ',01. I Hawk. P. C. ni.
iflue, and give in evidence that the perfon afTaulted or beat was
the firft aflailant, or that he firft made an attack upon the de-
fendant himfelf, his wife, his father,' fon, mafter, or perhaps,
fervant (fee p. 3. n. i. antt) ; and, upon producing fatisfac-
tory proof of this juilification, tlie defendant ought to be ac-
q^uitted by the jur).
aty
Ch. 8. W R O N G S. Ill
fary felf-prefervation (2). If the ear be cut ofF, treble damages
are given by ftatute 37 Hen. VIII. c. 6. though this is not
mayhem at common law. And here I mufl obferve that for
thefe four laft injuries, aflault, battery, wounding, and may-
hem, an indictment may be brought as well as an action j
and frequently both are accordingly profecuted ; the one at
the fuit of the crown for the crime againfl the pubHc ; the
other at the fuit of the party injured, to make him a repara- [ 122 3
tion in damages.
4. Injuries, afFeding a man's healthy are where by any
unwholefome praftices of another a man fuftains any ap-
parent damage in his vigour or conftitution. As by felling
him bad provifions or wine *' ; by the exercife of a noifome
trade, which infects the air in his neighbourhood " ; or, by
the negledl or unflcilful management of his phyfician, fur-
geon, or apothecary. For it hath been folemnly refolved >',
that mala praxis is a great mifdemefnor and offence at com-
mon law, whether it be for curiofity and experiment, or by
negleiS ; becaufe it breaks the trull which the party had
placed in his phyfician, and tends to the patient's deftruc-
tjon. Thus alfo, in the civil law ^, negle6l or want of {kill
in phyficians or furgeons, " culpae adnumerantur ; veluti ft
*' med'iCHS curatioriem dereliquerity male qitempiatn fecnerity nut
** perpei-am ei medicamentum dederit." Thefe are wrongs or
injuries unaccompanied by force, for which there is a re-
medy in damages by a fpecial action of trefpafs^ upon the
cnfe. This atlon, of trefpafsy or tranfgreflion, on the cafe^
* I Roll. Abr. 90. y Lord Raym. 214.
* 9 Rep. 52. flutt, 135. ^ JnJ}. j^. ^. 6. & J.
(2) One remarkable property is peculiar to the adlion for a
mayhem, o'lz. that the court in which the adtion is brought have
a difcretionary power to increafe the damages, if they think the
jury at the trial have not been fufficiently liberal to the plaintiff;
but this muft be done/uper vifuni vultteris, and upon proof that it
is the fame woiind, concerning which evidence was given to the
jury. I fVilf. 5. I Barnes, ic6.
K 3 is
I2a Private Book III.
is an unlverfal remedy, given for all perfonal wrongs and
injuries without force ; fo called becaufe the plaintiff's
whole cafe or caufe of complaint is fet forth at length in
the original writ *. For though in general there are me-
thods prcfcribed and forms of alliens previoufly fettled, for
redrefling thofe wrongs which moft ufually occur, and in
which the very aft itfelf is immediately prejudicial or injuri-
ous to the plaintiff's perfon or property, as battery, non-pay-
ment of debts, detaining one's goods, or the like ; yet where
[[ 123 J any fpecial confequential damage arifes which could not be
forefeen and provided for in the ordinary courfe of juflice, the
party injured is allowed, both by common law and the ftatute
of Weftm. 2. c. 24. to bring a fpecial aftion on his own cafe,
by a writ formed according to the peculiar cirumflances of
his own particular grievance ^ For wherever the common
law gives a right or prohibits an injury, it alfo gives a remedy
by a6lion '^ ; and therefore, wherever a new injury is done, a
nev^ method of remedy muft be purfued*^. And it is a fettled
diftindlion% that where an al Is done which is in itfelf an
immediate injury to another's perfon or property, there the re-
medy is ufually by an aftion of trefpafs vi et armis ; but where
there is no al done, but only a culpable omiflion j or where
the aft is not immediately injurious, but only by confeqiience
and collaterally ; there no aftion of trefpafs vi et armis will
lie, but an ation on the fpecial cafe, for the damages confe-
ijuent on fuch omifTion or zt.
5. Lastly; injuries afFefting a man's reputation or good
name are, firft, by malicious, fcandalous, and flanderous
' For example ; '' Rex vicecomltifa- *' provide appojuit, quod idem AdtfcBu
** lutem. Si Afecerit tejecurum de cla- " ipjiut B vifum ccuH pra'dilii totalitir
' more fuo prejcquendo, tunc pone per -vj- amifit, ad damnum ipjius A figinti li-
*' dium etj'al-vos plegics B quod Jit coram ' irarum, ut dicit. Et habeai ibi r.ctKiKa
^' jufiitiariiinojlris apudWeftmonaJiertum *' p/cgiofum ct hoc breve. Teftt rncipfo
*' irt oBahis janRi Micbaelis, ojictifi/rus " apud Weflmonajltrium, fi." ( Rcgijir,
< quare cum idem B ad dextrum oculum Brcv, 105.)
** tpfiui Acafualiter lacjum bene et compe~ > See.pag. 52.
*' tenter curandum apud 5, pro quadam ' I Salk. 20. 6 Mod. 54.
*' pecuniae jummapraemanibusjolutaaf^ . * Cro. Jac. 478.
"pmpJ!'et,idcmBcuramJuam circa ocu- * u Mod. jSo. Lord Raj;na. 14C2.
" lum (rasdi^um tarn negligettter et im- Stra. 635,
words.
Ch. 8. Wrongs. 123
luordsy tending to his damage and derogation. As if a man,
malicioufly and falfely utter any flander or falfe tale of ano-
ther i which may either endanger him in law, by impeach-
ing him of fome heinous crime, as to fay that a man hath
poifoned another, or is perjured '^ ; or which may exclude him
from fociety, as to charge him with having an infedHous dif-
eafe; or which may impair or hurt his trade or livelihood, as to
call a tradefman a bankrupt, a phyfician a quack, or a lawyer
a knaves (3). Words fpoken in derogation of a peer, a judge,
or other great officer of the realm, which are czXltA fcandalum
vtagtiattimy are held to be ftill more heinous ^ j and, though
they be fuch as would not be adtionable in the cafe of a com-
mon perfon, yet when fpoken in difgrace of fuch high and
refpedlable characters, they amount to an atrocious injury :
which is redrefled by an adtion on the cafe founded on many
' Finch. L. 185. e JUJ, ,86. > 1 Ventr. 60.
(3) When words, that arc aftionable in thcmfelves if tinex-
plained, are accompanied by qualifications and allufions, which
prove that the meaning of them is fuch, that even if they were
true, they would not fubjcdl the perfon of whom they are fpoken
to any punifhment or penalty, they are not flanderous ; as to fay a
man is a thief becaufe he has itolen a cat, the ftealing of which is
not a felony ; or to charge a lady with theft or murder, where the
accufation is intended as a compliment, and alludes only to the faf-
cinating or fatal influence of her beauty. There are only three
diforders which the law deems it fcandalous to report that a per-
fon labours under, viz. the plague, the leprofy, and the lues ve-
nerea. Com. Dig. As. Def. D. 28. Thcfe three maladies in an-
cient times were fo contagious and alarming that the perfon af-
fllclcd was obliged to be abandoned by his friends ; and when the
leprofy prevailed In this country, there was a peculiar wr/t de le-
profo amovemlo to remove a leper from fociety. The probability
that this inconvenience may refult from fuch a charge being the
principle which coniUtutes tlie flander, it has agreeably thereto
been decided that It is not aftionable to fay a perfon has had fuch
a clilordcr, the Infeftion of which may long have been removed.
2 r. R. 473-
K 4 antient
124 Private Book III,
antient ftatutes' ; as well on behalf of the crown, to inflil
the punifhment of imprifonment on the flandercr, as on behalf
of the party, to recover damages for the injury fuftained (4),
Words alfo tending to fcandalize a magiftrate, or perfon in a
public truft, are reputed more highly injurious than when
fpbken of a private man ''. It is faid, that formerly no ac-
tions were brought for words, unlefs the flander was fuch as
(if true) would endanger the life of the objedl of it K But,
Weftm. I. 5 Edw. I. c. 34. 2, Ric. ^ Lord Raym. 1369.
II. c. 5. la Ric. II. c. II. ' i Vent. i8.
(4) This aftion or public profecution, for it partakes of both,
for fcandalum nwgnatum, is totally different from the adlion of ilan-
der in the cafe of common perforls. 'Th.tfcanJa/ujn magnatum is re-
duced to no rule or certain definition, but it may be whatever the
courts In their difcretion fhall judge to be derogatory to the high
charafter of the perfon of whom it is fpoken ; as it was held to be
fcandalum magnaium to fay of a peer, " he was no more to be
' valued than a dog;" which words would have been perfeftly
harmlefs if uttered of any inferior perfon. Bull. N. P. 4. This
{iftion is' now feldom or never reforted to. By the two firft ftatutes
upon v.hich it is founded, (3 Ed. I. c. 34. and 2 R. II. ft. 2. c. 5.)
the defendant may be imprifoned till he produces the firft author
of the fcandal ; hence probably is the origin of tlie vulgar notion
that a perfon who has propagated a (lander may be compelled to
give up his author.
"But in common flanders, if a' perfon declares that he heard A
fay B was a traitor or thief, he is juftified, if B brings an adtiorj
iigainft him, if he pleads and can prove that A did fay fo ; but if
he aiTerts generally that he has heard fo without naming his au-
thor at the time, he cannot defend himfelf againft B's action by
pleading and proving that he actually was told fo. The reafon
afligrtcd in 12 Co. 134. is, that if the author had been named, his
credit might have been in fo low eftimation that B might have
fuiTered no injury from the flander. And Lord Kenyon adds : " It
*' is juft that, when a perfon repeats any flander againft another,
*/ he ftiould at the fame time declare from whom he heard it, in
f order that the party injured may fue the author of the flander.'*
too
Ch. 8. Wrongs. 124
too great encouragement being given by tins lenity to falfe
and malicious flanderers, it is now held that for fcandalous
words of the feveral fpecies before-mentioned, (that may en-
danger a man by fubjedling him to the penalties of the law,
may exclude him from fociety, may impair his trade, or may
affedt a peer of the realm, a magiftrate, or one in public
truft,) an adlion on the cafe may be had, without proving
any particular damage to have happened, but merely upon
the probability that it might happen. But with regard to
words that do not thus apparently, and upon the face of
them, import fuch defamation as will of courfe be injurious,
jt is neceflary that the plaintiff fliould aver fome particular da-
mage to have happened ; which is called laying his aftion
with a per quod. As if I fay that fuch a clergyman is a ba-
flard, he cannot for this bring any a6lion againfl; me, unlefs
he can fhew fome fpecial lofs by it ; in which cafe he may
bring his a6lion againfl: me, for faying he was a baflard, per
quod he loft the prefentation to fuch a living "". In like manv
ner to flander another man's title, by fpreadingfuch injurious
reports, as, If true, would deprive him of his ellate (as to
call the iflue in tail, or one who hath land by defcent, a ba-
ftard)is actionable, pi^ovided any fpecial damage accrues to
the proprietor thereby ; as if he lofes an opportunity of fell-
ing the land ". But mere fcurrility, or opprobrious words,^
which neither in themfelves import, nor are in fal attended
with, any injurious eftedls, will not fupport an adion. So
fcandals, which concern matters merely fpiritual, as to call a
man heretic or adulterer, are cognizable only in the ecclefi-
aftical court ; unlefs any temporal damage enfues, which [ I2i
may be a foundation for a per quod. Words of heat and paf-
fion, as to call a man rogue and rafcal, if produlive of no
ill confequcnce, and not of any of the dangerous fpecies be-
fore-mentioned, are not alionable : neither are words fpoken
iij a friendly manner, as by way of advice, admonition, or
concern, without any tiniSlure or circumftancc of ill will : for,
" 4 Rep. 17. I Lev. 248. Noy. 64. | Frecm. 277.
f Cro. Jac. 213. Cro. iX\z. 1<)'J.
in
125 PjiiVATE Book III.
in both thefe cafes, they are not malicioujly fpoken, which is
part of the definition of flander p (5). Neither (as was former-
ly hinted '^) are any refleling words made ufe of in legal pro-
ceedings, and pertinent to the caufe in hand, a fufiicient
caufe of adlion for flander ''. Alfo if the defendant be able
f Finch. L. i36. i Lev. 8z. Cro. 1 pag. 79.
Jac. 91. " Dyer. z^^. Cro. Jac. 90.
(5) The words fcoundrel, rafcal, villain, knave, mifcreant, liar,
fool, and fuch like general, terms of fcurrility, may be ufed with
impunity, and are part of the rights and privileges of the vulgar.
To conftitute legal fiander, the words mull impute a precife crime;
hence it is aftionable to fay a man is a highwayman, but it is not
fo, to fay he is worfe than a highwayman. G. Cooke, 160. 3 Wtlf.
184. This fubjecl has been fully difcuflcd by C. J. De Grey,
who lays down this pofition, " that there muft be fome certain or
** probable temporal lofs or damage to make words actionable :
" but to impute to a man the mere defe6l or want of moral virtue,
' moral duties or obligations, which renders a man obnoxious to
*' mankind, is not adlionable." And therefore he and the court
determined, that the following declaration concerning a member
of parliament at a county meeting, did not amount to a legal flan-
der, vi%. " As to inftvuting oiu' members to obtain redrefs, I am
" totally againfl that plan, for as to inftrufting Mr. O. we might
** as well inftruft the winds, and Hiould he even promife his afiiil-
* ance, I fhould not expeft him to give it us." 3 IVtlf. 177.
It is not actionable to fay of a perfon he is forfworn, or that he
has taken a falfe oath, for upon many occafions a perfon may be
guilty of falfe fwearing without being fubjeft to any temporal
punifhment. 6 T. R, 691. See the explanation of perjur)-^, 4 vol.
P- 137-
A verbal charge of incontinence and proftitution agalnft a
woman of modefly and honour, is not a flander cognizable in any
temporal court except in the city court, where the caufe of adtion
aj-ifes within the jurifdiclion of the city of London. See i vol,
p. 76. n. 9.
No adtlon can be maintained for words even attended with a
fpccial damage, if they are fpoken from friendfliip or juftice to '
another, and not from mahce towards the perfon who is the fub-
jeft
Ch. 8. Wrongs. 125
to juftify, and prove the words to be true, no a6lion will lie%
even though fpecial damage hath enfued : for then it is no
flander or falfe tale. As if I can prove the tradefman a bank-
rupt, the phyfician a quack, the lawyer a knave, and the
divine a heretic, this will deftroy their refpelive adtions : for
though there may be damage fulhcient accruing from it, yet,
if the fa^ be true, it is damnum ahjque injuria ; and where
there is no injury, the law gives no remedy. And this is
agreeable to the reafoning of the civil law ^ : " eum qui no-
*' centem infamat, non ejl aequiim et houum ob earn rem condem-
** nari ; delict a enim nocentium not a ejfe oportet et expedit."
A SECOND way of affefting a man's reputation Is by
printed or written libels, picflures, figns, and the like j which
fet him in an odious or ridiculous " light, and thereby dimi-
nifli his reputation. With regard to libels in general, there
are, as in many other cafes, two remedies ; one by indict-
ment and another by alion. The former for the public of-
fence ; for every libel has a tendency to the breach of the
peace, by provoking the perfon libelled to break it ; which
offence is the fame (in point of law) whether the matter con-
tained be true or falfe ; and therefore the defendant, on an in-
dictment for publifhing a libel, is not allowed to allege the
truth of it by way of juftification *, But in the remedy by ac-
* 4 Rep. 13. " 2 Show. 314.. 11 Mod. 99.
' Ff. 47. 10. 18. "5 Rep. 125.
jeft of them ; as if upon an enquiry being made a mafter Is
obUged to give an unfavourable charadlcr of a difcarded fervant-
I T.R. no.
The principal diillnftlons between a<flions for words which are
aflionablc in themfelves, and aftions for words which are not fo
without a fpcclal damage, are thefe, t/z. the firll by 2 1 J. I. c, 16.
muft be brought within two years, and if the damages are under
40 J. the plaintiff fhall recover cofls onl}'- to the extent of the da-
mages, but the latter may be brought at any time within fix years,
and a verdicl with any damages whatever will entitle the plaintiff
to full cofls. Bull. N. P.ll. See Efpinajfe^ tit. Slander.
tion
1^5 Private Book III.
tion on the cafe, which is to repair the party in damages for
125 3 the injury done him, the defendant may, as for words y^o/^^w,
juftify the truth of the fals, and (hew that the plaintiff has
received no injury at all ". V/hat was faid with regard to
words fpoken, will alfo hold in every particular with regard
to libels by writing or printing, and the civil alions confe-
quent thereupon (6): but as to figns or pidlures, it feems'necef-
* Hob. 253. n Mod. 59.
(^ When this was origiiially written by the learned Comment
tator, the important didinftion between libels and words fpoken
does not feem to have been fo fully eicabliihcd as ft was feme time
afterwards by the cafe of Villers v. Moufley, 2 IVilf. 403. t/z.
that whatever renders a man ridiculous, or lowers him in the elleem
and opinion of the world, amounts to a libel ; though the fame
expreflxons, . if fpoken, would not have been dcfam.ation : as to
call a perfon in writing an itchy old toad, was held in that cafe to be a
Hbel; although aswords fpoken they would not have been aftionable.
A young lady of quality lately recovered 4000/. damages' for
refleftionsupon her chaftlty publifhed in anewfpaper ; yet fhe could
have brought no aftion for the groflell afperfions which eould
have been uttered a.i^ainfl her honour.
There are authorities, that tinith is not a j unification In an ac-
tion for a libel, and a very learned writer feems to doubt, whether
fuch a plea would now be admitted by the courts, if the accufation
in the libel did not amount to an iudiftable offence: (3 IFoodd.iSz.)
but I am inclined to think that the contrary is the prevailing opi-
nion of the profeffions ; and that in every aftion for a libel, if fpe-
cific inftances can be ftated upon the record and proved by evi-
dence, fo as to fupport the general charge of the libel, the courts
would determine them to be a fuflicient jullification of the defend-
ant. 1 T. R. 748. And the chief excellence of the civil aftion
for a libel confills in this, that it not only affords a reparation for
the injury fuftained, but it is a full vindication of the innocence of
the perfon traduced.
If an aftion is brought for a libel written in a foreign language,
the orijnnal with a tvanflatioa muft be ftated m the declaration,
the tranflation alone will not be fufficicnt. 6. T. R. 162.
To fupport an aftion for a libellous fign or picture, the learned
judge fays, it is necelTary to fhcw, tfjift Jome fpcc'tai damage has
5 followed i
Ch. 8. Wrongs. 126
fary always to {hew, by proper innuendoes and averments of
the defendant's meaning, the import and application of the
fcandal, and that fome fpecial damage has followed ; other-
wife it cannot appear, that fuch libel by pilure was under-
ftood to be levelled at the plaintiff", or that it was attended
with any adionable confequences.
A THIRD way of deftroying or injuring a man*s reputa-
tion is by preferring malicious indictments or profecutions
againft him ; which, under the malic of juftice and public
fpirit, are fometimes made the engines of private fpite and
enmity. For this however the law has given a very adequate
remedy in damages, either by an alion of confpiracy f^ which
cannot be brought but againft two at the leaft ; or, which is
the more ufual way, by a fpecial aftion on the cafe for a falfe
and malicious prolecution ^. In order to carry on the former
(which gives a recompenfe for the danger to which the party
has been expofed) it is necefTary that the plaintiT fliould ob-
tain a copy of the record of his indiclmeyt and acquittal (7) ;
but, in profecuticns for felony, it is ufual to deny a copy of
the indictment, where there is any, the leaft, probable caufe
to found fuch profecution upon . For it would be a very great
difcouragement to the public juftice of the kingdom, if pro-
1 Finch. L. 305. * F. N. B. n6. Carth. 421. Lcrd Rayin. 453.
follonved', but I conceive there is no ground for tl.is opinion, and
that a pifture intended to make any one ridiculous is equally adtion-
able, as if the fame effeft had been produced by any other mode
of publication, though no damage can be proved.
An aftlon for a libel differs from an action for words, for
the former may be brought at any time within fix years, and any
damages will entitle the plaintiff to full cods.
See more upon libels, 4 vol. p. 1 50.
(7) In an action for a malicious profecution, where the plaintiff'
has been Indicted for a ft'.ony, it is neceffary to produce a copy of
the record granted by the court before which he was acquitted j
but the practice is otherwife in mifdemcanours, and in fuch a
cafe the action may be fuftained by the productioH of the origiuat
xecord of the atciuiltal. I Bl. Rep. 385.
fecutors>
126 Private Book III,
fecutorS) who had a tolerable ground of fufpicion, were lia-
able to be fued at law whenever their indidlnients mifcarried.
I '27 J ]3ut an alion on the cafe for a malicious profecution may be
founded upon an indictment, whereon no acquittal can be had;
as if it be reje6led by the grand jury, or be coratii nonjudice,
or be infufficiently drawn. For it is not the danger of the
plaintiff, but the fcandal, vexation, and expenfe, upon which
this action is founded *>. However, any probable caufe for
preferring it is fufficient to juftify the defendant (8).
II. We are next to confider the violation of the right of
perfonal liberty. This is efFe6led by the injury of falfe im-
prifonment, for which the law has not only decreed a punifh-
ment, as a heinous public crime, but has alfo given a private
reparation to the party ; as well by removing the actual con-
finement for the prefent, as, after it is over, by fubjedling
the wrongdoer to a civil alion, on account of the damage
fuftained by the lofs of time and liberty.
To conftitute the injury of falfe imprifonment there are
two points requifite : i. The detention of the perfon : and,
2. The unhiwfulnefs of fuch detention. Every confinement
of the perfon is an imprifonment, whether it be in a common
prifon, or in a private houfe, or In the (locks, or even by
-forcibly detaining one in the public ftreets '^. Unlawful, or
falfe, imprifonment confifts in fuch confinement or deten-
tion without fuflicient authority : which authority may arife
either from fome procefs from the courts of juftice, or from
fome warrant from a legal officer having power to commit,
under his hand and feal, and exprefling the caufe of fuch
commitment''; or from fome other fpecial caufe warranted,
^ lo Mod. 219, 220. Stra. 691. ' z Inft. 589. * Ibid. 46.
(8) The eflential ground of this aftion is, that a legal profecu-
tion was carried on without a probable caufe ; but this muft be
fubftantively and exprefsly proved, and cannot be implied. From
the want of probable caufe, malice may be, and moft commonly is,
implied. The knowlege of the defendant is alfo implied. From
the moft exprefs malice, the want of probable caufe cannot be
implied. Sutton v. jfohnflonei i T. R. 544.
for
Ch. 8. Wrongs. 127
for the neceflity of the thing, either by common law, or al:
of parliament ; fuch as the arrefting of a felon by a private
perfon without warrant, the imprefling of mariners for the
public fervice, or the apprehending of waggoners for mifbe-
haviour in the public highways '^. Falfe impvifonment alfo
may arife by executing a lawful warrant or procefs at an un-
lawful time, as on a Sunday^; for the (latutehath declared, j- j^g -i
that fuch feivice of procefs (hall be void (9). This is the injury.
Let us next fee the remedy : which is of two forts ; the one
removirig the injury, the other making fatisfaclion for it.
The means oi removing the adVual injury of falfe imprifon-
ment, are fourfold, i. By writ of mainprise. 2. By writ
de odio et atia. 3. By writ de homine replegiando. 4. By writ
of habeas corpus.
1. The writ of /rt/'/)n'zif, mamicapiioy is a writ direled *
to the fheriff, (either generally, when any man is imprifoned
for a bailable offence, and bail hath been refufed ; or fpc-
cially, when the offence or caufe of commitment is not pro-
perly bailable below) commanding him to take furetiesfor tlie
prifoner's appearance, ufually called mainpernorSy and to fet
him at large s. Mainpernors differ from bail, in that a man's
bail may imprifon or furrenderhim up before the ftipulated day
of appearance ; mainpernors can do neither, but are barely
fureties for his appearance at the day : bail are only fureties,
that the party be anfwerable for the fpecial matter for which
they ftipulate; mainpernors are bound to produce him to
anfwcr all charges whatfoever \
2. The writ de odio et atia was antiently ufed to be di-
reted to the ftieriff, commanding him to inquire whether a
prifoner charged with murder was committed upon juft caufe
of fufpicion, or mtxtX'j propter odium et atiam, for hatred and
Stat. 13 Geo III. c. 78. F. N. B. 250. i Hal. P.C. 141.
' Stat. 19 Car. II. c. 7, Salk. 78. Coke on bail and mainpr. ch. 10. \
5 Mod. 95. '' Co. iiid, ch. 3. 4 Inft. 179.
(9) -But the ftatute has excepted cafes of treafon, felony, and
breach of the peace, in which the execution of a bwful warrant or
procefs is allowed upon a Sunday.
15 ill-
128 Private Book III.
ill-will; and if upon the inquifition due caufe of fufpicion
did not appear, then there iffued another writ for the (herifF
to admit him to bail. This writ, according to Bratton ',
ought not to be denied to any mm ; it bein? exprefsly ordered
to be rhade out gratis^ without any denial, by magna carta^
c. 26. and ftatute Weftm. 2. 1 3 Edw. I. c. 29. But the ftatute
^ 129 ] of Gloceller, 6 Edw. I. c. 9. re drained it in the cafe of kill-
ing by mifadventure or felf-defence, and the ftatute 28 Edw.
111. c. 9. aboli(hed it in all cafes whatfoever : but as the fta-
tute 42 Edw. III. c. 1. repealed all ftatutes then in being,
contrary to the great charter, fir Edward Coke is of opinion *
that the writ de odb et atia was thereby revived,
3. The writ de homhie rep/egiando^ lies to replevy a man
cut of prifon, or out of the cuftody of any private perfon, (in
the fame manner that chattels taken in diftrefs may be reple-
vied, of which in the next chapter) upon giving fecirrity to
the (lierilF that the man ftiali be forthcoming to anfwer any
charge againft him. And, if the perfon be conveyed out of
the flieriff's jurifdi\ion, the fheriiF may return that he is
eloigned, elongatus ; upon which a procefs iflues (called a ca-
pias in ^uithernam ) to imprifon the defendant himfelf, with-
out bailor mainprize, till he produces the party. But this
writ is guarded with fo many exceptions", that it is no.t an
effedlual remedy in numerous inftances, efpccially where the
crown is concerned. The incapacity therefore of thefe three
remedies to give complete relief in every cafe hath almoft en-
tirely antiquated them, and hath caufed a general recourfe to
be had, in behalf of perfons aggrieved by illegal imprifon-
ment, to
4. The writ of habeas corpus ^ the moft celebrated writ in
the Engllfli law. Of this there are various kinds made ufe of
by the courts at Weftminfter, for removing prifoners from
one court into another for the more eafy adminiftration of
/, 5. tr. a. c. 8. rcjlrum, vel eafitalh juJiUiaru vojiii, vel
, * z Inft. 43- 55. 3' 5- f'o morte hiKisU, vel pro for ejf a tioflraf
t F. N. B. 66. tat fro aliquo ai'io re'toy quare J cundimt
Rajm. 474. cinjuetudirim Angliae ran Jit replegiahilis.
* ITifi ta^tus efi ferfpukle fratceftvm ( Rrg'flt. 11 )
juftice.
Ch. 8. ' Wrongs. 129
juftice. Such Is the iakas corpus ad refpondendumj when a
man hath a caufe of action againil one who is confined by
the procefs of fomc inferior court, In order to remove the
prifoner, and charge him with this new alIoa in the court
above . Such is that ad fatisfaciendum., when a prifoner hath
had judgment agnlnfl: him in an alion, and the plaintiff Is [ I30 ^
defirous to bring him up to fome fuperior court to charge him
with procefs of execution p. Such alfo are thofe ad proft-
qttenduw, tejlificandum^ deliberatidum., i^c. ; which iflue when
it is neceffary to remove a prifoner, in order to profecute or
bear teftimony in any court, or to be tried in the proper jurlf-
dilion wherein the fat was committed. Such is, laftly, the
common writ ad faciendum et recipienduniy which iflues out of
any of the courts of Weftminfter hall, when a perfon is fued
in fome inferior jurifdilion, and is defirous to remove the ac-
tion into the fuperior court ; commanding the inferior judges
to produce the body of the defendant, together with the day
and caufe of his caption and detainer (whence the writ is fre-
quently denominated an habeas corpus cum caiifa) to do and re-
ceive whatfoever the king's court fliall confider in that behalf.
This is a writ grantable of common right, without any mo-
tion in court '5, and it inftantly fuperfedes all proceedings in
the court below. But, in order to prevent the furreptitlous
difcharge of prifoners, it is ordered by ftatute i & 2 P. & M.
c. 13. that no habeas corpus (hall IfTue to remove any prifoner
out of any gaol, unlefs figned by fome judge of the court out
of which it is awarded. And, to avoid vexatious delays by
removal of frivolous caufes, it is enafted by ilatute 21 Jac I.
c. 23. that, where the judge of an inferior court of record is
<i harrifter of three years (banding, no caufe (l\all be removed
from thence by habeas corpus or other writ, after iflue or de-
murrer deliberately joined : that no caufe, if once remanded
to the inferior court by writ of procedendo or otherwife, (hall
tver afterwards be again remove*! : and that no caufe fliall be
rtmaved at all, if the debt or damages laid in the declaration
do not amount to the fum of five pounds. But an'' expedient
2 Mod. 19S. i ^foll. 30^.
-VxJL. 111. L having
13 Private ^ Book IIL
having been found out to elude the latter branch of the fta-
tute, by procuring a nominal plaintiff to bring another aclioit
for five pounds or upwards, (and then by the courfe of the
court, the habeas corpus removed both alions together,) it is
therefore enabled by ftatute 1 2 Geo. I. c. 29. that the inferior
t 1^1 3 court may proceed in fuch a\ions as are under the value of five
pounds, notwithftanding other alions maybe brought againft
the fame defendant to a greater amount. And by ftatute 19
Geo. in. c. 70. no caufe, under the value of ten pounds,
fhall be removed by habeas corpus^ or otherwife, into any fu-
perior court, unlefs the defendant, fo removing the fame, ihall
give fpecial bail for payment of the debt and cofts.
BoT the great and efficacious writ, in all manner of ille-
gal confi:iement, is that of habeas corpus adfubjicietidutn : di-
rected to the perfon detaining another, and coinmanding hint
to produce the body of the prifoner, with the day and caufc
of his caption and detention, ^^/y^r/Vwf/wrz, fiibjlclendutny et
recipiendnmj to do, fubmit to, and receive vi'hatfoever the
judge or court awarding fuch writ fhall confider in that be-
half'. This is a high prerogative writ, and therefore by tl>c
common law ifluing out of the court of king's bench not only
in term-time, but alfo during the vacation', by a Jiat from
the chief juftice or any other of the judges, and running inta
all- parts of the king's dominions : for the king is at all tinies
entitled to have an account, why the liberty of any of his fub-
jefts is reftrained ", wherever that reftraint may be inflidled.
If it iffiies in vacation, it is ufually returnable before the judge
himfelf who awarded it, and he proceeds by himfelf thereon '
unkfs the term fhould interrene, and then it may be returned
in courf . Indeed, if the party were privileged in the courts
of common pleas and exchequer, as being (or fuppofed to be)
an officer or fuitor of the court, an habeas corpus ad fubji
' St. Trials, viii. 142. that year on a Saturday. Th3 Thurf*
^TX^pluriti habeas corpus i'wtdei to day after was therefore the 30th of No-
BerwkkrTt43Eliz. (eited4.Burr.856 ) vember, two days after the explratioa
V^as tejie^il die Jo^'is f>rx'' fo^. qulnderC f the term.
Janfii Martini. It appears, by refer- " Cro. Jac. 54.3.
ring to the dominical letter of that year, " 4 Burr. 856.
that this ju'mdent (Nov. 25.) happened ^ Itld. 462. $42. 606. '
6 (iendum
Ch. 8, Wrongs, iji
citndum might alio by common law have been awarded from
thence * ; and, if the caufe of imprifonment were palpably
illegal, they might have difcharged him f : but, if he were
committed for any criminal matter, they could only have re- r J22 1
manded him, or taken bail for his appearance in the court of
king's bench '^ ; which occafioned the common pleas for fomc
time to difcountenance fuch applications. But fince the men-
tion of the king's bench and common pleas, as co-ordinate
in this jurifdiclion, by ftatute 16 Car. I. c. 10. it hath been
holden, that every fubjel of the kingdom is equally entitled
to the benefit of the common law writ, in either of thofe
ourts, at his option '. It hath alfo been faid, and by very
refpe(Stable authorities", that the like habeas corpus may ifluc
out of the court of chancery in vacation : but, upon the
famous application to lord Nottingham by Jenks, notwith-
ftanding the moft diligent fearches, no precedent could be
found where the chancellor had iflued fuch a writ in vaca.
tion *=, and therefore his lordlhip refufed it.
In the king*s bench and common pleas it is nfetelTary to
apply for it by motion to the court **, as in the cafe of sll othet
prerogative writs [certiorarif prohibition, mandamusy l^fc.J
which do not ilTue as of mere courfe, without fhewing fomc
probable caufe why the extraordinary power of the crown Is
called hi to the party's afliftance. For, as was argued by lord
chief juftice Vaughan', " it is granted on motion, becaufe
* it cannot be had of courfe ; and there is therefore no nt"
** cejftiy to grant it j for the court ought to be fatisfied that
*' the party hath a probable caufe to be delivered." And this
fecms theniorc rcafonablc, becaufe (when once granted) the
perfon to whoiti it is directed can retuni no fatisfadlbry ex-
cufe for not bringlrig dp the body of the prifoirtfer'. So that
if it ilfUed of mere Courfe, without (bowing to the court of
1 liift. 55. 4 Inft. a90. % Hl. > 4 Inft. jSi. i Hi. P. C. 147.
P. C. 144. 2 Ventr. ax. Lord. Kott. MSS. Rep. Juljr 1 6/6.
' Vaiigh. 155. * i fAod. co6. t Lev. i.
* Carter. S2I. a Jon. ij. BuflicU'i Cf;. a Jia. IJ.
2 Mod. I j8. Woodi Cife, C, B. ' Cro. Jtc. 5434
Hil. uCet. 111.
J:52 Private Book IIL
judge fbmc reafonable ground for awarding It, a traitor or
felon under fentence of death, a foldier or mariner in the
king's fervice, a wife, a child, a relation, or a domeftic,
confined for itifanity or other prudential reafons, might ob-
[ 133 ] tain a temporary enlargement by fuing out an hcsL^us corpus,
though fure to be remanded as foon as brought up to the
court. And therefore fir Edward Coke, when chief juftice,
did not fcruple in 13 Jac. I. to deny a habeas carpus to
one confined by the court of adnjiralty for piracy ; there*ap-
pearing, upon his own {hewing, fufficient grounds to confine
him . On the other hand, if a probable ground be fhewn,
that the party is imprifoned without juft caufe '', and there-*
fore 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 n>aft that is committed, or detained
" in prifon, or otherwifeteftrained, though it be by the com-
* mand of the king, the privy council, or any other '."
In a former part of thefe commentaries ^ we expatiated at
large on the perfonal liberty of the fubjeft. This was fhewn
to be a natural inherent right, which could not be furrendered
or forfeited unlefs by the commiffion of fome great and atro-
cious crime, and which ought not to be abridged in any cafe
without the fpecial permiflion of law. A d66lrine coeval
"with the firft rudiments of the Englifh conftitutioji ; and
-handed down to us from our Saxon anceftors, notwithftand-
"ing ail their ftruggles with the Danes, and the violence of the
Norman conqueft : aflcrted afterwards and confirmed by the
conqueror himfelf and his defcendants : and though fometimes
a little impaired by the ferocity of the times, and the ocea-
fional defpotif^ of jealous or ufurping princes, yet eftabhfhed
:< the firmeft bafis by the provifions of magna cartay and a
long fucceflion of ftatutes enaiSted under Edward III. To af-
fert an abfolute exemption frcni imprifonment in all cafes, is
inconfiftent with every idea of law and political fociety ; and
in the end would deftroy all civil liberty, by rendering it's
proteQioa impoflible rbut the glory of the Englifti law con-
3 BuHlr. Z7. See aMb i Roll. ' Com. Journ. j Apr. 1628.
Rep. T38. ^ Book. I. ch, i.
7.inft. 6jj.
Ch, 8. Wrongs, 133
fifts in clearly defining the times, the caufes, and the extent^
when, wherefore, and to what degree, the imprifonment of
the fubje6l may be lawful. This it is, which induces the ab- C ^34 1
folute neceflity of exprefling upon every commitment the rea-
son for which it is made : that the court upon an habeas corpus
may examine into it's validity; and according tothe. cir-
cumftances of the cafe may difcharge, admit to bail, or re-
mand the prifoner.
And yet, early in the reign of Charles I, the court of
king's bench, relying on fome arbitrary precedents (and thofe
perhaps mifunderftood) determined' that they could not upou
an habeas corpus t\t\i&x bail or deliver a prifoner, though com-
mitted without any caufe afligne-d, in cafe he was committed
by the fpecial command of the ting, or by the lords of the
privy council. This drew on a parliamentary inquiry, and
produced x\\t petition ef rights 3 Car. I. which recites this il-
legal judgment, and enals that no freeman hereafter fhall be
fo imprifoned or detained. But when, in the following year,
Mr. Selden and others were committed by the lords of the
council, in purfuance of his majefty's fpecial command, un-
der a general charge of " notable contempts and ftirring up
" fedition againfl the king and government," the judges de-
layed for two terms (including alfo the long vacation) to de-
liver an opinion bow far fuch a charge was bailable. And,
when at length they agreed that it was, they however annexed
a condition of finding furetles for the good behaviour, which
ftill protra<3:ed their imprifonment, the chief juHice, fir Ni-
cholas Hyde, at the fame time declaring "", that if they
** were again remanded for that caufe, perhaps the court
*' would not afterwards grant a habeas corpus^ being already
** made acquainted with the caufe of the imprifonment."
But this was heard with indignation and aftonifiiment by
every lawyer prefcntj according to Mr.Selden's own" account
' State Tr. vii. 1^6. " rmdum f>alam prcnuntiaTit ffui fttn-
"' Ibid. 240. per Jimdh) fobii ftrpctuo in p'flerum
" " Eiiam judicum tunc primariut, vifi " dtntgaridum. liluod, ut tdiojijjimum jw
illud factremui, refcripn iliiut foitn/iSy " r'n frodigium, jcittitior-hm hic univeifit
** qui libertttlit perj^nalit bmnimtdat -vin " cenfiium." (yindit. Mar, clauf. edit,
** dtx leg'timui tfiftrt //i', ujum mni- A. D. 1653 )
.L3 o
1^5 Private Book IlL
of the matter, whofc refentment was not cpoled at the dif-
tance of four and twenty years.
These pitiful evafions gave rife to the flatute i6 Car. I.
c. ID. 8. whereby it is enacted, that if any perfon be
corpmitted by the king himfelf in perfon, or by his privy
council, or by any of the members thereof, he Oiall have
granted unto him, without any delay upon any pretence
w|iatfoever, a writ of habeas corpus^ upon demand or motion
made to the court of king's bench or common pleas ; who fhall
thereupon, within three court days after the return is made,
examine and determine the legaHty of fuch commitment, and
do what to juftice ftiall appertain, in delivering, bailing, or
remanding fuch prifoner. Yet dill in the cafe of Jenks, be-
fore alluded to ", who in 1676 was committed by the king in
council fpr a turbulent fpeech at Guildhall ?., new (hifts and
devifes were made ufe of to prevent his enlargement by law ;
the chief juftice (as well as the chancellor) declining to award
a writ of habeas corpus ad fubjiciendum in vacation^ though at
laft he thought proper to award the ufual writs ad deliberau-
dum, iffc. whereby the prifoner was difcharged at the Ol^
Bailey. Other abufes had alfo crept into daily pralice,
which had in fome meafure defeated the benefit of this great
conftitutional jremedy. Thp party imprifonijig was at liberty
to delay his obedience to the firft writ, and might wait till a
fecond and a third, called ^n alias and a pluriesy were iflued,
before be produced the party: and many other vexatious
' (hifts were pralifed to detain ftate-prifoners in cuftody. But
whoever will attentively confider the Englifh hiftory may ob-
ferve, that the :3agrant abufe of any power, by the cro\yn qr
it's miniQers, has always been produdiye of a ftrugglej
which either difcovers the exercife of that power to be con-
trary to law, or (if legal) rellrains it fpr the future. Thjs
was the cafe in the prefent inftance. The opprefiion of an
obfcure individual gave birth to the.hmous habeas corpus al^,
3 1 Car, II. c. 2. which is frequently cpnfidered as another
pag. 1 32. 9 State Trials, vll. 471.
magnq
Ch. S. W R N G s, 135
magna carta '^ of the kingdom ; and by confequcnce and ana-
logy has alfo in fubfequent times reduced the general method
f proceeding on thefe writs (though not within the reach of
that ftatute, but iiTuing merely at the common law) to the
true llandard of law an-d liberty (to).
The ftatute itfelf enals, i. That on complaint and rc-
<jueft in writing by or on behalf of any perfon committed and
charged with any crimey (unlefs committed for treafon or fe-
lony expreffed in the warrant j or as acceflbry, or on fufpi-
cion of being acceflbry, before the fa<l:, to any petit-treafon
or felony , or upon fufpicion of fuch petit-treafon or felony,
plainly exprefTed in the warrant ; or uniefs he is conviified or
charged in execution by legal proccfs,) 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, lliall (un-
lefs the party has negledted for two terms to apply to any
court for his enlargement) award a habeas corpus for fuch pri-
foner, returnable immediately before himfclf or any other of
the judges ; and upon the return made ftiall difcharge the
party, if bailable, upon giving fecurlty to appear and anfwer
s Sec book I. ch, x.
(10) Bifliop Burnet relates a circumftance refpedUng the haleas
ttrpus adt, which is more curious than credible ; but though we
cannot be induced to fuppofe that this important ftatute was ob-
tained by a jeft and a fraud, yet the llory proves that a very formida-
ble oppolition was made to it at that time- " It was carried (fays
he) by an odd artifice in the houfe of lords. Lord Grey and
** lord Norris were named to be the tellers, lord Norris being a
man fubjedl to vapours, was not at all times attentive to what he
*' was doing, fo a very fat loid coming in, lord Grey counted him
for ten as a jeft at lirft, but feeing lord Norris had not obfcrved
* It, he went on with this mifreckoning of ten, fo it was re-
* ported to the houfe, and declared that they who were for the
* bill were the majority, though it indeed went on the other iide;
< and by thii means the bill paft." 1 Burnet, H'ljl. Ch. II. 485
L 4 to
136 Private Book III.
to the accufation in the proper court of judicature. 2. That
fuch writs (hall be indorfed, as granted in purfuance of this
al, and figned by the. perfon awarding them. 3. That the
writ (hall be returned and the prifoner brought up, within a
limited time according to the ciiftance, not exceeding in any
cafe twenty days. 4. That cfEcers and keepers neglecting
to rnake due returns, or not delivering to the prifoner or his
agent within fix hours after demand a copy of the warrant of
commitment, or fhifting the cuftody of a prifoner from one
to another, without fufficient reafon or authority, (fpecifie4
in the aft,) Ihall for the firft ofTence forfeit ico /. and for the
fecond offence 200/. to the party grieved, and be difabied to
hold his ofBce. 5. That no peffon, once delivered by habeas
corpusj {hall be recommitted for the fame ofFpnce, on penalty
of 50G /. 6. That every perfon committed for treafon or fe-
lony fliall, if he requires it the firft week of the next term, or
the firft day of the next fefljon of syer and terminer, be indiled
L ^37 3 ^"^ ^^^' term or feffion, or elfe admitted to bail ; unlefs the
king's witnefies cannot be produced at that time : and if ac-
quitted, or if not indicted and tried in the fecond term or
feffion, he ihall be difcharged from his imprifonment for fuch
imputed offence : but that no perfon, after the aflizes fliall be
open for the county in which he is detained, (liall be re-
moved by habeas corpus^ till after the aflizes are ended j but
ihall be left to the juftice of the judges of affize. 7. That any
fuch prifoner may nrove for and obtain his habeas corpiis, as
well out of the chancery or exchequer; as out of the king's
bench or common pleas; and the lord chancellor or judges
denying the fame, on fight of the warrant or oath that the
fame is refufed, forfeit fcverally to the party grieved the fum
of 500 /. 8. That this writ of habeas corpus fiiall run into the
counties palatine, cinque ports, and other privileged places,
and the illands of Jerfey and Guernfey. 9. That no inha-
bitant of England (except perfons contrafting, or convifts
praying, to be tranfported ; or having committed fome capi-
tal offence in the place to which they are fent) fhall be fent
prifoner to Scotland, Ireland, Jerfey, Guernfey, or any places
beyond the feas, within 01 without the king's dominions: on
pain
Ch. 8. Wrongs. 137
pain that the party committing, his advifers, aiders, and af-
fiftants, (hall forfeit to the party grieved a fum not lefs than
500/. to be recovered with treble cofts ; fliall be difabled to
bear any office of truft or profit ; fliall incur the penalties of
praemunire ; and Ihall be incapable of the king's pardon.
This is the fubftance of that great and important ftatute :
which extends (we may obferve) only to the cafe of commits
ments for fuch criminal charge, as can produce no inconve-
nience to public juflice by a temporary enlargement of the
prifoner : all other cafes of unjuft imprifonment being left to
the habeas corpus at common law. But even upon writs at
the common law it is now expe<Sled by the court, agreeable to
antient precedents " and the fpirit of the al: of parliament,
that the writ fhould be immediately obeyed, u-ithout waiting
for any aiias or plurics ; otherwife an attachment will iiTue.
By which admirable regulations, judicial as well as parlia- [ iqg T
mentary, the remedy is now complete for removing the injury
of unjuft and illegal confinement. A remedy the more necef-
fary, becaufe the oppreflion does not always arife from the
ill-nature, but fometimes from the mere inattention, of go-
vernment. For it frequently happens in foreign countries,
(and has happened in England during temporary fufpenlions'
of the ftatute) that perfons apprehended upon fufpicion have
fufFered a long imprifonment, merely becaufe they were for-
gotten (ii).
' 4 Burr. 856. See vol. I. pag. 136.
(11) Befides the efficacy of the writ of habeas corpus in liberat-
ing the fubjeft from illegal confinement in a public prifon, italfo ex-
tends it's influence to remove every unjuft reftraint of perfonal
freedom in private life, though impofed by a hufband or a father; but
when women or infants are brought before the court by a habeas
corpus, the court will only fet them free from an unmerited or un-
reafonable confinement, and will not determine the validity of a
marriage, or the right to the guardianfhip, but will leave them at
liberty to chufe where they will go : and if there be any reafon to
apprehend that they will be fcized in returning from the court,
they will be fcnt home under the protedion of an officer. But if
a child
iji Private Book IlT,
The fdUsfaHors remedy for this Injury of falfe imprifoiv-
ment^ is by an ai;ion of trefpafs vi et armisy ufually called
an alion of falfe imprifonment ; which is generally, and al-
nioft unavoidably, accompanied with a charge of aflault and
battery alfo : and therein the party fhall recover damages for
the injury he has received ; and alfo the defendant is, as for
all other injuries committed with force, or vi et arm'uy liable
to pay a fine to the king for the violation of the public peace.
m. With regard to the third abfolute right of Individu-
als, or that of private property, though the enjoyment of it,
when acquired, is flri\ly a perfonal right : yet as it's na-
ture and original, and the means of it's acquifition or lofs,
fell more direlly under our fecond general divlfion, of the
rigUs of things ; and as, of courfe, the wrongs that afFet
thefc rights rauft be referred to the correfponding divifion in
the prefent book of our commentaries ; I conceive it will be
more commodious and eafy to confider together, rather than
in a feparate view, the injuries that may be offered to the en-
joymenty as well as to the rightty of property. And therefore
1 (hall here conclude the head of injuries afFedlingthe abfolute
rights of individuals.
We are next to contemplate thofe which affcdl their reh'
five rights j or fuch as are incident to perfons confidered as
members of fociety, and conneled to each other by various
r |5g "j tics and relations : and, in particular, fuch injuries as may
be done to perfons under the four following relations ; huf-.
band and wife, parent and child, guardian and ward, mailer
and fervant.
I. Injuries that may be offered to a perfon, confidered
as a hu/bandf are principally three : ahduHiony or taking away
a child is too young to have any dlfcretion of it's own, then the
court will deliver it into the cullody of it's parent, or the perfon
who appears to be it's legal guardian. See 3 Burr. 1434, where
all the prior cafes are confidered by lord Mansfield.
If an equivocal return is made to a habeas corpus j the court will
immcdialtly grant an attachment. 5 7*. R. 8^
a man^s
Ch. 8. Wrong s. 139
a man's wife ; adultery^ or criminal converfation with her ;
and beatlttg or otherwife nbufing ber. 1 . As to the firft fort,
*bdu^'tQn or taking her away, this may be either by fraud and
perfuafion, or open violence : though the law in both cafes
fuppofes force and conftraint, the wife having no power to
confent \ and therefore gives a remedy by writ of rav'ijbmenty or
alion of trefpafs vi et armis, de uxore rapt a et abduHa ^ This
alion lay at the common law ; and thereby the hufband fhall
recover, not the pofleffion " of his wife, but damages for
taking her away: and by ftatute Weft. i. 3 Edw. I. c. 13.
the offender ft-iall alfo be imprifoned two years, and be fined
at the pleafure of the king. Both the king and the hufband
may therefore have this aftion *; and the hufband is alfo en-
titled to recover damages in an action on the cafe againft fuch
as perfuade and entice the wife to live feparate from him with-
out a fufficient caufe *, The old law was fo ftri6l in this
point, that, if one's wife miffed her way upon the road, it
was not lawful for another man to take her into his houfe,
unlefs (he was benighted and in danger of being loft or
drowned ^ : but a ftranger might carry her behind him on
horfeback to market, to a juftice of the peace for a warrant
againft her huft)and, or to the fpiritual court to fue for a di-
vorce ^, 2. Adultery^ or criminal converfation with a man's
wife, though it is, as a public crime, left by our laws to the
coercion of the fpiritual courts 5 yet, confidered as a civil
injury, (and furely there can be no greater,) the law gives a
fatisfation to the hufband for it by a(^ion of trefpafs v; et
armh againft the adulterer, wherein the damages recovered
are ufually very large and exemplary. But thefe are properly r j^q t
increafed and diminifhed by circumftances " ; as the rank and
fortune of the plaintiff and defendant ; the relation or con-
nedlion between themj the fedudlion or otherwife of thewifc^
founded on her previous behaviour and chara<Sleri and the
hufband's obligation by fettlement or otherwife to provide for
thofe children, which he cannot but fufpel to be fpurious.
In this cafe, and upon indi<^ments for polygamy, a marriage
* F. N. B. S9. T Bro. j^ir. t. trrffaft. 33.
1 In. 434. w m^ t UiJ. iof. 44.0-
Lw itrafifrita. 74. Law ^{nifi^riui- a6,
in
14^ Private Book III.
in faci muft be proved ; though generally, in other cafes, re-
putation and cohabitation are fulHcient evidence of mar-
Tiage''-(I2). 3. The third injury is that of beating a man's wife,
'' Burr. 2057.
(12) Evidence may be given in jnitigation of damages, that
the hufband had criminal connections with otiier women, or that
hit was not accuftomed to treat his wife with tenoernefs and affec-
-tion, or Irhat they did not Hve together ypon terms of harmony or
.cordiality, for the jury muft collect, from a coufideration of fuch
circumftanees, the extent of the wound which is given to the huf-
band's feelings and happinefs. It is now fettled, that if the jury
fiiould be convinced that the hufband coafented to the infamy of
his wife, they ought to find a yerdiCt for the defendant. 4 T. R.
651. This is founded either upon the maxim volenti nonjit injuria^
or upon the confideration that the plaintiff as a profligate particeps
crimmis, appears under too unfavourable circumftanees to receive
any countenance or proteftion in a court of juttice. But if the
hufband's conduft does not prove aftual confent, but only that
degree of negligence or levity, which probably contributed to the
leduclion of his wife, it will not deprive him of a verdi6t, however
it may leiTcn ihe damages. But he can maintain no a<?tion if he
lives .entirely feparated from his wife in confequence of a mutual
agreement ; for the gU or foundation of the aftion is held to con-
fill in the hufband's lofs of the comfort and fociety of his wife.
sT.R.ssi-
The judges have declared, that in all aftions of this fort it is
the peculiar province of the jury to eftimate what pecuniary repa-
ration ought to be granted ; and they have refufed to grant a new
trial for exceflive damages, where a verdicl was given for 5000 /.
under circumftanees wihich were fuch, that one learned judge was
of opinion they amounted to evidence of confent, and that a ver-
dift ought to have been given for the defendant. 4 T. R. 651.
However reluctant the judges may appear to become the arbi-
trators of the price of adultery, yet that dehcacy perhaps ought not
to be extended to a verdidt ; which from the manifefl circum*
ftances of the cafe caanot poffibly be reconciled with any fair and
rational meafure of juflice.
/ This aftion for criminal cotiverfation having in it a mixture of
penal profecution, fufficient evidence mufl be produced to fatisfy
the jury of the aiftual marriage, and the identity, of the parties.
Doug. 16^.
or
Ch. 8. Wrongs. 140
or otherwlfe ill-ufing her -, for which, if it be a common aC-
fault, battery, or imprifonmeHt, the law gives the ufual re-
medy to recover damages, by alion of trefpafs vi et armis,-,
which mufl; be brought in the names of the hufband and wife
Jointly : but if the beating or other maltreatment be very en-
ormous, fo that thereby the hufband is deprived for any time-
of the company and aihftance of his wife, the law then gives
him a ffpardie remedy by an alion of trefpafs, i nature
of an adiion upon the cafe, for this ill-ufage, per quod con-
fortium annftt ; in which he ftiall recover a fatisfaftion in
damages '^.
II. Injuries that may be offered to a perfon confidered
in the delation of a parent were likewife of two kinds : i. Ab-
dnfiioHy or taking his children avi-ay ; and 2, Marrying his
fon and heir without the father's confent, whereby during
the continuance of the military tenures he loft the value of
his marriage. Biit this laft injury is now ceafed, together
with the right upon which it was grounded : for, the fathet
being no longer entitled to the value of the marriage, the
marrying his heir does him no fort of injury, for which a
civil action will lie. As to the other, of abduftion or taking
away the children from the father, that is alfo a matter of
doubt whether it be a civil injury, or no; for, before the
abolition of the tenure in chivalry, it was equally a doubt
whether an af^ion would He for taking and carrying away
any other child befides the heir ; fome holding that it would [ 141 j
not, upon the fuppofition that the only ground or caufe of
action was lofing the value of the heir's marriage; and others
holding that an action would lie for taking away any of the
children, for that the parent hath an intercft in them all, to
provide for their education "*. If tlierefore before the aboli-
tion of thefe tenures it was an injury to the father to take
iiWay the reft of his children, as well as his heir, (as I aiti
inclined to think it was,) it ftlll remains an injury, and is re-
mediable by a writ of ravipmenty or action of trefpafs vi et
< Cro.|iie. 901. 539. < Cro. Eliz. 77c. ,
armit.
141 Private Book IJI,
crmisf de Jilioj veljU'iay rapto vel ahduiJo '\ In tlie fame man-
ner as the hufband may have it, on account pi the abduc-
tion of his wife.
III. Of a fimilar nature to the laft is the relation oi guar"
dian and ivard\ and the like actions tnutatis mutandis y as are
given to fathers, the guardian alfo has for recovery of da-
mages, when his ward is ftolen or ravifhed away from him ^
i\nd though guardianfliip in chivalry is now totally aboliftied,
which was the only beneficial kind of guardianfhip to the
guardian, yet the guardian in focage was always* and is ftill
entitled to an ation of ravijhmetity if his ward or pupil be
taken from him r but then he muft account to his pupil for
the damages which he fo recovers ^ And, as guardian in
focage was alfo entitled at common law to a writ of right of
nvardf de cujiodia tcrrae et haeredisy in order to recover the
pofleffion and cullody of the infant', fo I apprehend that he
is ftill entitled to fue out this antiquated right. But a more
fpeedy and fummary method of redrefling all complaints rela-
tive to wards and guardians hath of late obtained by an appli-
cation to the court of chancery; which is the fupreme guar-
dian, and has the fuperintendant jurifdilion, of all the in-
fants in the kingdom. And it is exprefsly provided by flatute
12 Car. II. c. 24. that teftamentary guardians may maintain
an aflion of ravilhment or trefpafs, for recovery of any of
^ 142 3 their wards, and alfo for damages to be applied to the ufe and
benefit of the infants '^.
IV. To the relation between mnjier and fervanty and the
rights accruing therefrom, there are two fpecies of injuries
incident. The one is, retaining a man's hired fervant be-
fore his time is tfxpired ; the other is beating or confining him
in fuch a manner that he Is not able to perform his work. As
to the firft, the retaining another perfon's fervant during the
time he has agreed to ferve his prefent mafter ; this, as it is.an
F. N. B. 90. " Hale on F, N. B. 1391.
Jb-d. 139. F.N. B. ib\d.
mi, k a P. Wni. icj.
ungentle*
Ch. 8. W R o N o s.
142
ungentlemanlikc, fo It is alfo an illegal acl. For every maf-
ter has by his contrail purchafed for a valuable confideratioii
the lervice of his domeftics for a limited time ; the inveigling
or hiring his fervant, which induces a breach of this contral^
is therefore an injury to the mafter ; and for that injury the
law has given him a remedy by a fpecial adion on the cafe :
and he may alfo have an aftion again ft the fervant for the
non-performance of his agreement '. But, if the new mafter
was not apprized of the former contral:, no alion lies againft
/jtnt'^f unlefs he refufes to reftore the fervant upon demand( 1 3 ).
The other point of injury, is that of beating, confining, or
difabling a man's fervant, which depend.', upon the fame
principle as the laft ; viz. the property which the mafter has
by his contrail acquired in the labour of the fervant. In this
cafe, befides the remedy of an adlion of battery or imprifon-
ment, which the fervant himfelf as an individual may have
againft the aggreflbr, the mafter alfo, as a recompenfe for
liis immediate lofs, may maintain an action of trefpafs vi et
armis ; in which he muft allege and prove the fpecial damage
he has fuftained by the beating of his fervant, per quod fervi-
t'lum amiftt " j and then the jury will make him a proportion-
able pecuniary fatisfaftion. A fimilar praflice to which, we
find alfo to have obtained among the Athenians ; where maf-
ters were entitled to an a<Slion againft fuch as beat or ill-
treated their fervants " (i/^)*
1 F. N. B 167. 9 Rep. 113. 10 Rep/310.
Jbid. Winch. 51. Pott. Anti^u. b. 1. c. 26.
(13) But an aftlon lies for receiving or continuing to employ
the fervant of another after the fecond mafter has notice that he is
the fervant of another, though he was not apprized of that cir-
cumftance when he hired him. 6 T. R. 221.
{ 14) It appears to be a remarkable bmilfion in the law of Eng-
land, which with fuch fcrupulous folicitude guards the rights of in-
dividuals, and fccurcs the morals and good order of the commu-
nity, that it (hould have afforded fo little proteftion to female chaf-
lity. It Is true that it has defended it by t1ic piiniflmient of death
from force and violence, but ha3 left it expoL'd to perhaps greater
(^.iflger figm the artifice and folicitationi of leduition. In no caft
vrhatsrer,
143 Private Book III.
We may obferve that in tliefe relative injuries, notice is
only taken of the wrong done to the fuperior of the parties
whatever, unkfs fiie has had a promife of marriage, can a woman
hcrfelf obtain any reparation for the injury {he has fuftained from
the feducer of her virtue. And even where her weaknefs and cre-
dulity have been impofed upon by the moil foleinn promifes of
marriage, unlefs they have been overheard *t>r made in writing,
{he cannot recover any compenfatlon, being ,incapable of giving
evidence In her own caufe. Nor can a parent maintain any ac-
tion in the temporal courts againil the perfon who has done this
wrong to his family, and to his honour and happinefs, but by
Hating and proving, that from the confcquences of the feduftion
his daughter is lefs able to aflift him as a fervant, or that the fe-
ducer in the purfuit of his daughter was a trefpafier upon his pre-
mifes. Hence no aftion can be maintained for the feduftion of
a daughter, which is not attended with a lofs of fervice or an in-
jury to property. Therefore, in that aftion for feduftion which is
in moft general ufe, viz. a per quod fervitium amifif, the father
mufl; prove that his daughter, when feduced, actually affilled in fome
degree, however inconfiderable, in the houfewifery of his family ;
and that (he has been rendered lefs ferviceable to him by her
pregnancy : or the aftion would probably be fuftained upon the
evidence of a confumption or any other diforder, contrafte'd by
the daughter, in confequence of her feduftion. or of her fhame and
forrow for the violation of her honour. It is immaterial what is the
age of the daughter, but it is neceffary that at the time of the feduc-
tion fhe fhould be living in, or be confidered part of, her father's fa-
mily. 4 Burr. 1 878. 3 Wilf. 1 8. And Mr.J. Wilfon, in a cafe upon
the northern circuit, was of opinion, that a young woman who was
upon a vifit at a relation's houfe, and was there feduced, might be
confidered, in fupport of this afticn, as in the fervice of her father,
or as part of his family. In this aftion, as the dawghter does not
neceffarlly receive any part of the damages recovered, fhe is a
competent witnefs, and is generally produced to prove the fa ft
of the fcdudtion. But in fuch cafes, as in a6lions for adultery,
the damages arc eflimated from the rank and fituation of the
parent, or from the degree of affllAion which, under all the cir-
Gumftances, he may be fuppoftd to fuffer. It flionld fecm that
this action may be brought by a grandfather, brother, uncle, aunt,
or any relation under the protection of whom, in loco farentjf,
7 woman
Ch. 8. W R o J* c s. 14^
related by the breach and dlfTolution of either the relation itfelf
or at ieaft the advantages accruing therefrom j while the lofa
of the inferior by fuch injuries is totally unregafded. Ona
reafon for which may be this : that the inferior hath no kind
of property in the company, care, or affiftance of the fuperior,
as the fuperior h held to have in thofe of the inferior ; and
therefore the inferior can fufFer no lofs or injury. The wife
Cannot recover damages for beating her hufband, for fiie hath
no feparate intereft in ariy thing during her coverture. The
child hath no property in his father or guardian j as they have
in Jiim, for the fake of giving him education and nurture*
Yet the wife or the child, if the hufband or parent be flain,
have a peculiar fpecies of criminal profecution allowed them,
in the nature of a civil fatisfadlion ; which is called an appeal^
and which will be confidered in the next book. And fothe
fcrvant, whofe mailer is difabled, does not thereby lofe
his maintenance or wages, itt had rio piroperty in his maf-
te'r i and, if he receives his part of the ftipulated contract,
he fuffers no injury, and is therefore entitled to no alion,
for any battery or imprifonment which fuch mailer may
happen to endure.
woman rcfides ; efpeeially if the cafe btS fuch that fhe can bring no
alion lierfelf; butthecourts would not perinit aperfontobepunifh-
ed twice by exemplary damages for the fame injury. 2 T. R. 4.
Another ation for fedu6tion is a common aftion for trefpafs,
which may be brought when the feducer has'iilegally entered the fa-
ther's houfe ; in which aftion the debauching his daughter maybe
ftatedand proved as an aggravation of the trefpafs. i T. It. 166.
In this aclion the feduclion may be proved, though it may net
have been followed by the confequences of pregnancy or the lofs of
fervice. But thefe arc the only adlions which have been extended
by the modern ingenuity of t'h courts, to enable an unhappy parent
t recover a recompcnfe, under certain circumftanecs, for the injur/
kc has futlalncd by the fcduiliaii oflii* daughter.
Vol. III. U
i44i Private Book III.
GHAPTER THE NINTH.
GF INJURIES TO PERSONAL
PROPERTY,
IN the preceding chapter we conGdered the wrongs or in-
juries that affe^ed the rights of perfons, either confidered
as individuals, or as related to each other } and are at pre-
fent to enter upon the difcuffion of fuch injuries as afFet the
rights of property, together with the remedies which the law
has given to repair or redrefs them.
And here again we mufl follow our former divifion * of
property into perfonal and real : perfonal^ which confifts in
goods, money, and all other moveable chattels, and things
thereunto incident \ a property, which may attend a man's
perfon wherever he goes, and from thence receives it's deno-'
mination : and real property, which confifts of fuch things
as are permanent, fixed, and immoveable ; as lands, tene-
ments, and hereditaments of all kinds, which are not an-
nexed to the perfon, nor can be moved from the place in
which they fubfift,
r i^^ J -PiRST then we are to confider the injuries that may be
oiFered to the rights of perfonal property; and, of thefe, firft
the rights of perfonal property in pojfejporjy and then thofc
that are in aBicm only"*,
See Book II, ch, 2. ' Book II. eh. 25.
l.-Trf
Ch. 9. ' Wrongs. 14^'
I. The rights of perfonal property in poffefftoti are liable to
two fpecies of injuries : the amotion or deprivation of that
pofleflion ; and the abufe or damages of the chattels, while the
pofleffion continues in the legal owner. The former, or
deprivation of pofTeflion, is alfo divifible into two branches
the unjuft and unlawful taking them away ; and the unjuft
detiiining them, though the original taking might be lawful,
I. And firft of an unlawful taking. The right of pro-
perty in all external things being folely acquired by occu-
pancy, as has been formerly dated, and preferved and tranf-
ferred by grants, deeds, and wills, which are a continuation
of that occupancy; it follows as a neceflary confequence, that
when I once have gained a rightful poflefrion of any goods or
chattels, either by a juft occupancy or by a legal transfer,
whoever either by fraud or force difpoflefles me of thera is
guilty of a tranfgreffion againft the law of fociety, which is
a kind of fecondary law of nature. For there mufl be an end
of all focial commerce between man and-man, unlefs private
pofTeflions be fecured from unjuft invafions : and, if an ac-
qu'ifition of goods by either force or fraud were allowed to
be a fufficient title, all property would foon be confined to the
mbft ftrong, or the moft cunning ; and the weak and fimple-
minded part of mankind (which is by far the moft numerous
divifion) could never be fecure of their pofleflions.
The wrongful taking of goods being thus moft clearly an
inmry, th6 next confideration is, what remedy the law of
England has given for it. And this is, in the firft place, the
reflitution of the goods themfelvcs fo wrongfully taken, with [ t^f; t
damages for the lofsfuftaincd by fuch unjuft invafion; which
is eflefted by alion of replevin : an inftitution, which the
mirror '^ afcribes to Glanvil, chief juftice to king Henry the
fecond. This obtains only in one inftance of an unlawful
taking, that of a wrongful diftrefs ; and this and the afti'oa
of detinue (of which I ftiall prefently fay more) arc almoft:
* C. 2.- 6.
i' - M2 the
146 Private Book III.
the only alions, in which the aftual fpecific pofTefTion of
the identical perfonal chattel is reftored to the proper owner.
For things perfonal arc looked upon by the law as of a na-
ture fo tranfitory and perifhable, that it is for the moft part
impoflible either to afcertain their identity, or to reftorc
them in the fame condition as when they came to the hands
of the wrongful pofleflbr. And, fince it is a maxim that
*' lex neminem cogit ad vanoy feu impq/fibiliay' it therefore
contents itfelf in general with reftoring, not the thing itfelf,
but a pecuniary equivalent to the party injured ; by giving
him a fatisfaclion in damages. But in the cafe of a dijlrefs^
the goods are from the firft taking in the cuftody of the law^
and not merely in that of the diftrcinor ; and therefore they
may not only be identified, but alfo reftored to their firft
pofleffor, without any material change in their condition.
And, being thus in the cuftody of the law, the taking them
back by force is looked upon as an atrocious injury, and de-
nominated a refcousy for which the diftreinor has a remedy
in damages, either by writ of refcous **, in cafe they were
going to tlie pound, or by writ de parco fraEloy or pound-'
hreach % in cafe they were actually impounded. He may
alfo at his option bring an aftion on the cafe for this injury:
and ftiall therein, if the diftrefs were taken for rent, recover
treble damages ^ The term, refcousy is likewife applied to
the forcible delivery of a defendant, when arrefted, from the
officer who is carrying him to prifon. In which circum-
ftances the plaintiff has a fimilar remedy by a<Slion on the
cafe, or of refcous ^ : or, if the ftieriff makes a return of fuch
T '47 ] ^^fi<^"^ fo the court out of which the procefs iffued, the re-
fcucr will be puniflied byattachment ''.
An allon of replevin, the regular way of contcfting the
> validity of the tranfalion, is founded, I faid, upon a diftrefs
taken wrongfully and without fufficient caufe : being a re-
delivery of the pledge ', or thing taking in diftrefs, to the
*F. N. B. lot.
8 6 Mod- an.
IbiA. 100,
" Cro. Jao. 419. Salk. 58*?.
f Stit. 2 W. & M. ScfT. I. c, 5.
See pag. 13.
9*
owner
Ch.9. Wrongs. 147
owner; upon his giving fecurity to try the right of the
diftrefs, and to reftore it if the right be adjudged againft
himj : after which the diftreinor may keep it, till tender
made of fufficient amends : but muft then redeliver it to the
owner ''. And formerly, when the party diftreined upon iu-
tended to difpute the right of the diftrefs, he had no other
procefs by the old common law than by a writ of replevin,
replegiari facias ' ; which iflued out of chancery, command-
ing the IherifFto deliver the diftrefs to the owner, and after-
wards to do juftice in rcfpedl of the matter in difpute in hi$
own county court. But this being a tedious method o
proceeding, the beafts or other goods were long detained
from the owner, to his great lofs and damage '". For which
reafon the ftatute of Marlbridge " direds, that (without
fuing a writ out of the chancery) the IherifF immediately^
opon plaint to him made, fhall proceed to replevy the
goods. And, for the greater eafe of the parties, it is far-
ther provided by ftatute i P. & M. c. 12. that the fherifF
(hall make at leaft four .deputies in each county, for the fole
purpofs of making replevins. Upon application therefore,
either to the (heriffor one of his faid deputies, fecurity is to
be given, in purfuance of the ftatute of Wcftm. 2. 13 Ed\v. I.
c. 2. f . That the party replevying will purfue his action
againft the diftreinor, for which purpofe he puts in plegios de
profequendof or pledges to profecute ; and, 2. That if the
right be determined againft him, he will return the diftrefs
again *, for which purpofe he is alfo bound to find plegios de
retorno habendo. Befides thefe pledges, the fufficiency of [ *'
which is difcretionary and at the peril of the fheriff, the fta-
tute II Geo. II. c. 19. requires that the officer, granting a
replevin oxx. a diftrefs for rent, Ihali take a bond with two
furcties in a fym of double the value of the goods diftreined,
conditioned to profecute the fuitwith efFel: and without de-
lay, and for return of the goods; which bond fhall be af-
figned to the avowant or perfon )r.aking cognizance, on re-:
3 Co. Utt. 145. * 2 Inft. 139.
k 8 Rep. 147. ^ 52 Hen. lil. c. ai.
\ F. N. B. 6Sf
M 3 quell
148 Private Book III.
queft made to the officer ; and, if forfeited, may be fued in
the name of the affignee. And certainly, as the end of all
diflrefTes is only to compel the party didreined upon to fatisfy
the debt or duty owiug from him, this end is as well anfwered
by fuch fufficicnt furefies as by retaining the very diftrefs,
which might frequently occafion great inconvenience to the
owner ; and that the law never wantonly inflils. The (heriff",
on receiving fuch fccurity, is immediately, by his officers,
to caufe the chattels taken in dillrefs to be reftored into the
pofllllion of the party didreined upon ( i ); unlefs the diftreinor
plaims a property in the goods fo ta^en. For if, by this me-
'thod of dillrefs, the diftreinor happens to come again into
poflelhon of hi own property in goods which before he had
loft, the law allows him to keep them, without any refer-
' ence to the manner by v^hich he thus has regained poflefr
iion ; being a kind of perfonal remitter". If therefore the
^iHrcinor claims any fuch property, the party replevying muit
fue out a wx'it'de pro^rietaie probandfii in which the flierifFi^
to try, by an inquert, in whom the property previous to the
diftrefs fubfiftcd p. And if it be found to be in the diftreinor,
the flierifr can proceed no farther; but muft return the claim
of property to the court of king's bench or common pleas, to
be there farther profecutcd, if thought advifeable, and there
^inajly detefmiped '^^
But if no claim of property be put in, or if (upon trial)
the (heriff's inqueft determines it againft the diftreinor j then
the ilicrifF ig fo replevy the goods (making ufe of even force,
C HO 3 ^^ ^^^^ diftreinor makes refiftance') in cafe the goods be found
within his county. But if the diftrefs be carried out of the
county, or popcealpd, then the flieriff.m^y return that the
" See pag. 19. 1 Co. Litt. 145. fipcb. L. 450*
P Finch. L. 316. f -2 Inft. 193.
( I ) If goods arc taken in diftrpfs for rent and are replevied, the
landlord vsho diflraincd has no lien upon the goods, but his only
fcmtdy is uppp tjip replevjji-bpnd. j Bro. 4?7.
goods.
Ch. 9. "Wrongs. 149
goods, or beads, are eloignedy elongatoy carried to a diftance,
to places to him unknown : and thereupon the party replevy-
ing (hall have a writ oi capias in nvithernam^ in vetito, (or, more
properly, repetitOy) namio, a term which fignifies a fecond or
reciprocal diftrefs % in lieu of the first which was eloigned.
It is therefore a command to the flieriff to take other goods
of the diftreinor, in lieu of the diftrefs formerly taken, and
eloigned, or withheld from the owner '. So that here is now
diftrefs againft diftrefs ; one being taken to anfwer the other,
by way of reprifal ", and as a puniftiment for the illegal be_
haviour of the original diftreinor. For which reafon goods
taken in ivithernam cannot be replevied, till the original dif-
trefs is forthcoming ",
But, in common cafes, the goods are delivered back to
the party replevying, who is then bound to bring his aftion
of replevin ; which may be profecuted in the county court,
be the diftrefs of what value it may ^. But either party may
remove it to the fuperior courts of king's bench or common
pleas, by writ of recordari or pone^f the plaintiff at pleafure,
the defendant upon reafonable caufe ^ -, and alfo, if in the
courfe of proceeding any right of freehold comes in queftion,
the (herifF can proceed no farther ^; fo that it is ufual to carry
it up in the firft inftance to the courts of Weftminfter-hall.
Upon this aiion brought, and declaration delivered, the [ 'S^ 3
diftreinor, who is now the defendant, makes avowry , that
Smith's commonw. b. 3. c. 10. who gave a univerfal challenge to difpute
% Inft. J41. Hickes's Thefaur. 164, with any perfon in any fcience : in omni
* F. N. B. 69. 73. fdb'di, et de quoitbet ente. Upon which
" In the old northern languages the Mr. Morefent him this queftion "rri
word wiriernaw is ufed as equivalent to *^ averia carucae, capta in vetitt namio,
refrijals, (Stiernhook, de jure fueont *' Jint irrepUgibilia ," whether beafts of
/. 1. c. 10.) the plough, taken in ivithernam, are
" Raym. 475. The fubftance of this incapable of being replevied, (Hoddefd.
rule compofed the terms of that famous c. 5.)
queftion, with which fir Thomas More ^ S Inft. 139.
(when a ftudent on his travels) is faid to * a Inft. 23.
have puizled a pragmatical profeflbr in ^ F. N. B. 69, 70*
the univerfity of Bniges in Flanders; ' Finch. L. 317.
M4 is.
150 Private BopK III.
is, he av9tvi taking the diftrefs in his own right, or the right
of his wife'} and fets forth the reafon of it, as for rent
arrere, damage done, or other caufe : or elfe, if he juftifies
in another's right as his baiUfF or fervant, he is faid to make
cognizance ; that is, he acknowUges the taking, but infifts that
fuch taking was legal, as he aled by the command of one
who had a right to diftrein : and on the truth and legal merits
of this avowry or cognizance the caufe is determined. If it
be determined for the plaintiff, -uh. that the diftrefs wa
wrongfully taken j he has already got his goods back into his
own pofl'effjon, and {hall keep them, and moreover recover
damages '', But if the defendant prevails, by the default or
nonfuitof the plaintiff, then he fhall have a writ W^ retoriio
habendof whereby the goods or chattels (which were diftrein-
fd and then replevied) are returned again into his cuflody;
to be fold, or otherwife difpofed of as if no replevin had
been made, And at the common law, the plaintiff might
have brought another replevin, and (o infinitum to the. in-
tolerable vexation of the defendant. Wherefore the ftatute
of \yeftm. 2. c 2. reflrains the plaintiff, when nonfuited,
from fuing out any frefh replevin ; but allows him z Judicial
writ, iiruing out of the original record, and called a writ of ,
Jecond deliverancsy in order to have the fame diftrefs again
delivered to hirii, on giving the like fecurity as before. And, ,
if the plaintiff be a fecond time nonfuit, or if the defendant
Jias judgment upon verdit or demurrer in the firft replevjni
he (hall have a writ of return irreplevifable ; after which no
writ of fecond deliverance fliall be allowed '. But in cafe of a
diftrefs for rent arrere, the writ of fecond deliverance is in
effect '' taken away by ftatute 17 Car. II. c. 7. which direts
that, if the plaintiff be nonfuit before iffue joined, then upon
fuggeftion made on the record in nature of an avowry or cog-
nizance; or if judgment be given againft him on demurrer,
then, without any fuch fuggeftion, the defendant may have a
1^ ici ] writ to inquire into the value of the diftrefs by a jury, an4
1 Saund. 195. * a Inft. 340.
fc F.N.B. 69. * I Ventx. fc^.
ftiaU
Ch. 9. Wrongs. 151
(hall recover the amount of it in damages, if lefs than the
arrear of rent ; or, if more, then fo much as (hall be equal
^o fuch arrear, with cofts : or, if the nonfuit be after iflue
joined, or if a yerclil be againft the plaintiff, then the jury
impannelied to try the caufe (hall aflefs fuch arrears for the
-defendant : and if (in any of thefe cafes) the diftrefs be in-
/iifiicicnt to anfwer the arrears diftreined for, the defendant
may take a farther diftrefs or diftreiTes '. But otherwife, if,
pending a replevin for a former diftrefs, a man diftreins again
for the fame rent or fervice, then the party is not driven to
^is alionof replevin, but (hall have a writ oi recaption ^^ and
recover damages for the defendant the rc-diftreinor's contempt
of the procefs of the law.
In like manner, other remedies for other unlawful takings
of a man's goods confilt only in recovering a fatisfadlipn ia
damages. As if a man takes the goods of another out of his
alual or virtual poflefllon, without having a lawful title fo
to do, it is an injury ; which, though it doth not amount
to felony unlefs it be done atiimo furandiy is neverthelefs a
tranfgreflion, for which an alion ( trefpafs vi et armis will
lie ; wherein the plaintiff (hall not recover the thing itfelf,
but only damages for the lofs of it. Or, if committed with-
out force, the party may, at his choice, have another remedy
in damages by ation ol trover and converftcn, of which I ihall
prefently fay more.
1. Deprivation of pofTefTion may alfo be by an unjuft
detainer of another's goods, though the original taking was
lawful. As if I diftrein another's cattle damage-feafant, and
before they are impounded he tenders me fulBcient amends;
now, though the original taking was lawful, my fubfequent
detainmenifof them after tender of amends is wrongful, and
he (hall have ah alion of replevin againft me to recover them^:
in which he ftiall recover damages only for the detention and not
for the r<?/)/;c, becaufe the original taking was lawful. Or, If C '5^ 3
J lend a than a horfe, and he afterwards refufes to reftore it,
Stat. 17 Car. II. c, 7. F N, B, 69.
' F>N.B. 71.
this
T^z Private Book III.
this injury confifts in the detaining, and not in the original
taking, and the reguhir method for me to recover pofleflion, is
by a6lion of detinue **. Jn this aft ion, of detinue, it is neceflary
to afcertain the thing detained, in fuch a manner as that it may
be fpecifically known and recovered. Therefore it cannot
be brought for money, corn, or the like ; for that cannot bfe
known from other money or corn ; unlefs it be in a bag or a
i'ack, for then it may be diftinguiflvably marked. In order
therefore to ground an al:ion of detinue, which is only for the
detaining, thefe points are neceffary ^: i. That the defendant
came lawfully into pofleflion of the goods, as either by delivery
to him, or finding them , 2. That the plaintifl'have a property;
3. That the goods themfelves be of fome value ; and 4. That
they be afcertained in point of identity. Upon this the jury,
if they find for the plaintifi^, aflefs the refpeftive values of the
feveral parcels detained, and alfo damages for the detention.
And the judgment is conditional; that the plaintifl^ recover
the faid goods, or (if they cannot be had) their refpelive
values, and alfo the damages for detaining them J. But there
is one difadvantage which attends this alion ; viz. that the
defendant is herein permitted to wage his law, that is, to ex-
culpate himfelf by oath '', and thereby defeat the plaintiff^ of
his remedy : which privilege is grounded on the confidence
originally repofed in the bailee by the bailor, in the borrower
by the lender, and the like ; from whence arofe a flirong
prefumptive evidence, that in the plaintiff^'s own opinion the
defendant was worthy of credit. But for this reafon the
alion itfelf is of late much difufed, and has given place to
the a6lion of trover.
This aftion of trover and converfion was in it's original
an a6lion of trefpafs upon the ^afe, for recovery of damages
againll fuch pcrfon as hzd found another's goods, and refufed
to deliver them on demand, but converted them to his own
;{ ^53 3 ufe ; from which finding and converting it is called an adion
oi trover zndi converfion. The freedom, of this adion from
> F.N.B. 138. i Co. Ent. 170. Cro. Jac. 68i.
I Co. Lilt. z86, * Co. Lkt. 295.
wager
Gh. 9- Wrongs. 153
wager of law, and the lefs degree of certainty requlfite in de-
fcribing the goods ', gave it fo confiderable an advantage
over the alion of cltiinue, that by a fi<Slion of law alious of
trover were at length permitted to be brought again (I any
man who had in his poflefllon by any means whatfoevcr the
perfonal goods of another, and fold them or ufed them with-
out the confent of the owner, or refufed to deliver them when
demanded. The injury lies in the converfion : for any man
may take the goods of another into pofleffion, if he finc^s
them ; but no finder is allowed to acquire a property therein,
unlefs the owner be for ever unknown "^ : and therefore he
muft not convert them to his own ufe, which the law prg-
fumes him to do, if he refufes to i-eftore them to the owner :
for which rcafon fuch refufiil alone \Sf prhnafaciacy fulHcient
evidence of a converfion ". The fal of the finding, or ird~
rjer, is therefore now totally immaterial ; for the plaintiff
needs only to fugged (as words of form) tliat he loft fuch
goods, and that the defendant found them : and, if he proves
that the goods are his property, and that the defendant had
them in his pofleflion, it is fufficient. But a converfion muft
be fully proved ; and then in this a6lion the plaintiff (hall
recover damages, equal to the value of the thing converted,
but not the thing itfelf ; which nothing will recover but at)
^dlion of detinue or replevin.
As to the damage that may be oflered to things perfonal,
while in the poflcflion of the owner, as hunting a man's deer,
(hooting his dogs, poifoning his cattle, or in any wife taking
from the value of any of his chattels, or making them in ^
worfe condition than before, thefe are injuries too obvious to
jieed explication. I have only therefore to mention the rc-
jnedies given by the law to redrefs them, which are in two
(hapes ; by adtion of irefpafs vi et armisy where the act is in
itfelf immediately injurious to another's property, and there-
fore neceflarily accompanied with fome degree offeree ; and [ j^^ "1
by fpecial action on the cafe^ where the zOi is in itfelf indiffe-
rent, and the injury only covfe^uetttialy and therefore arifing
> Salic. 654. iO Rep. 56.
P Sfc bouii. I. cb. 8. ))ook II. cb. \, and 26.
:;; without
154 Private Book III,
%vithout any breach of the peace. In both of which fuits the
plaintiff (hall recover damages, in proportion to the injury
which he proves that his property has fuftained. And it is
not material whether the damage be done by the defendant
himfelf, or his fervants by his direftion j for the adlion will
lie againft the matter as well as the fcrvant ", And, if a man
keeps a dog or other brute animal, ufed to do mifchief, as
by worrying fheep, or the like, the owner muft anfwer for
the confequences, if he Ifnows of fuch evil habit ^ (2).
II. Hitherto of Injuries affeling the right of things
perfonal, m poJfelJion. We are next to confider thofe which
regard things in aBion only ; or fuch rights as are founded
on, and arife from contracls : the nature and feverai divifions
of which were explained in the preceding volume 't. The
violation, or non-performance, of thefe contracts might be
extended into as great a variety of wrongs, as the rights which
we then confidered: but I fliall now confider them in a more
comprehenfive view, by here making only a twofold divifion
of contrafts ; ifiz. contracts exprefsy and contrails implied :
and pointing out the injuries that arife from the violation of
each, with their refpedtive remedies.
Express contrafts include th^ree diftindl fpccies ; debts,
covenants, and promifes.
Noy's Max. c. 44. 1 See book II. ch. 30.
F Cro. Car. 254. 487.
(2) But the owner is not anfwerable for the firft mifchief done
by a dog, a bull, or other tame animal, Bull, N. P. 77. Yet if h^
ftould carry his dog into a field, where he himfelf is a trefpafler,
and the dog fhould kill fiieep, this, though the firft offence, might
I conceive be ftated and proved as an aggravation of the trefpafs.
But where a fierce and vicious dog is kept chained for the de-
fence of the premifes, and any one incautioufly, or not knowing
of it, (hquld go fo near it ^s to be injured by it, no aftion can be
maintained by the perfon injured, though he was feekfng the
owner, with whom he had bufintfs. Bates v. Cro/liej M. T. 1798,
in the King's Bench.
Ch.9. Wrongs. 154
I. The legal acceptation of debt is, a fum of money due
by certain and exprefs agreement : as, by a bond for a deter-
minate fum; a bill or note ; a fpecial bargain; or a rent referved
en a leafe ; -where the quantity is fixed and fpecific, and
does not depend upon any fubfequent valuation to fettle it.
The non-payment of thefe is an injury, for which the proper
remedy is by action of debt % to compel the performance of
the contrail and recover the fpecifical fum due^ This is the C '55 1
ihonefl and fureft remedy ; particularly vv^here the debt arifes
upon a fpecialty, that is, upon a deed or inftrument under
feal. So alfo, if I verbally agree to pay a man a certain price
for a certain parcel of goods, and fail in the performance, an
adlion of debt lies againft me j for this is alfo a deterntinate
contraft : but if I agree for no fettled price, I am not liable
to an alion of debt, but a fpecial adlion on the cafe, accord-
ing to the nature of my contraft. And indeed aflions of
debt are now feldom brought but upon fpecial contrafts under
feal ; wherein the fum due is clearly and precifely exprefled :
for, in cafe of fuch an alion upon a fimple contrail, the plain-
tiff labours under two difficulties. Firft, the defendant ha?
here the fame advantage as in an alion of detinue^ that of
waging his law, or purging himfelf of the debt by oath, if
he thinks proper K Secondly, in an aUon of debt the plain-
tiff mufl prove the whole debt he claims, or recover nothing
at all. For the debt is one fingle caufe of alion, fixed and
determined ; and which therefore, if the proof varies from the
claim, cannot be looked upon as the fame contrail whereof
the performance is fued for. If therefore I bring an adlion
of debt for 30 /. I am not at liberty to prove a debt of 20 /. and
recover a verdil thereon ' ; any more than if I bring an
ation of detinue for a horfe, I can thereby recover an ox (3).
for I fail in the proof of that contraft, which my adlion or
' F. M. B. 1 19. * Bro. Le y gager. 93. Dyer. 219,
See appendix, No HI, 1. a Roll. Abr. 706. x Show^ 115.
f 4 Rep. 94.
(3) But it is now determined that, in an aftion of debt upon
a fimplc contrat, the plaintiff may recover a lefs fum than is ftated
in his writ or declaration, i Hen. Bl, 249. 2 BU Rep. 1221.
complaint
155 Private Booiclil.
complaint has alleged to be fpecific, exprefs, and determinate.
But in an action on the cafe, on what is called an indemtatus
ajfumpftty which is not brought to compel a fpecific perform-
ance of the contral, but to recover damages for its non-
performance, the implied ajfum^tty and confequently the
damages for the breach of it, are of their nature indetermi-
nate; and will therefore adapt and proportion themfclves to
*' the truth of the cafe which fhall be proved, without being
confined to the precife demand dated in the declaration. For
f 156 ] if any debt be proved, however lefs than the fum demanded,
the law will raife a promife pro tanto^ and the damages will
of courfe be proportioned to the aflual debt. So that I may
declare that the defendant, leing indebted to mc in 30/, under'
took or promifed to pay it, but failed ; and lay my damages
arifing from fuch failure at what fum I pleafe : and the jury
will, according to the nature of my proof, allow me either
the whole in damages, or any inferior fum. And, even in
a3;ions of debty where the contract is proved or admitted, if
the defendant can (hew that he has difcharged any part oi it,
the plaintiff fliall recover the refidue".
The form of the writ of debt is fometimes in the debet and
detihety and fometimes in the detinet only : that fs, the writ
ftates, either that the defendant owes and unjuflly detains the
debt or thing in queftion, or only that he unjuftly detains it.
It is brought in the debet as well as detinety when fued by one
of the original contraling parties who perfonaily gave the
credit, againll the other who perfonaily incurred the debt, or
againft his heirs, if they are bound to the payment ; as by the
obligee againfl the obligor, the landlord againft the tenant,
isfc. But, if it be brought by or againft an executor for a debt
duE to or from the teftator, this not being his own debt, fhall
befued for in thea'fZ/V/f/only"'. So alfoif the action befcrgoods,,
for corn, or an horfe, the writ fliall be In ihe'detinet only ; for
nothing but a fum of money, for which I (or my anceftors in
my name) have perfonaily contradled, is properly confidered
as hiy debt. And indeed a writ of debt in the detinet only, for
1 Roll. Rep. 257. Salic. 664. * F; N. B. iiy.
*^"'> *i goods
Ch. 9- Wrongs.' 15^6:
goods and chattels, Is neither more nor lefs than a mere writ -
of detinue: and is followed by the very fame judgment ".
2. A COVENANT alfo. Contained in a deed, to do a direcl
a(l or to omit one, is another fpecies of exprefs contrads, the
violation or breach of which is a civil injury. As if a. man
covenants to be at York by fuch a day, or not to exercife a
trade in a particular place, and is not at York at the time -
appointed, or carries on his trade in the place forbidden, thefe ^
are direl breaches of his covenant-, and may be perhaps [ 157 J
greatly to the difadvantage and lofs of the covenantee. The
remedy for this is by a writ of covenant ^ : which direls the
flierifF to command the defendant generally to keep his cove-
nant with the plaintiff (without fpecifying the nature of the
covenant) or fliew good caufe to the contrary : and if he
continues refractory, or the covenant is already fo broken
that it cannot now be fpecifically performed, then the fubfe-
quent proceedings fet forth with precifion the covenant, the
breach, and the lofs which has happened tliereby ; whereuport
the jury will give damages, in proportion to the injury
fuftained by the plaintiff, and occafioned by fuch breach of .
the defendant's contrail.
There Is one fpecies of covenant, of a different nature
from the reft ; and that is a covenant real^ to convey or dif-
pofe of lands, which feems to be partly of a perfonal and
partly of a real nature ^ For this the remedy is by a fpecial
writ of covenant, for a fpecific performance of the contraft,
concerning certain lands particularly defcribed in the writ.
It therefore direfls the (he riff to command the defendant,
here called the deforciant, to keep the covenant made be-
tween the plaintiff and him concerning the identical lands in
queftion : and upon this procefs it is that fines of lands are
ufually levied at common law * ; the plaintiff, or perfon to
whom the fine is levied, bringing a writ of covenant, la
whicli he fuggefts fome agreement to have been made between
him and the deforciant, touching thofe particular lands, for
thc^ completion of which he brings this a6lion. And, for the
* Raft. Entr. 174. z Hal. on F. N. B, 146.
^ I, f. N, B. 145. See book II. cb. ai. ^
'*^ end
iSi Private Book IIL
end ttf this fuppofed difference, the fine or Jinalis concordia \i
made, whereby the deforciant (now called the cognizor) ac-
knowkges the tenements to be the right of the plaintiff, now
called the cognizee. And moreover, as leases or years were
formerly confidered only as contrals '' or covenants for the
enjoyment of the rents arid profits, and not as the Conveyance
of any real intereft in the land, the antient remedy for the
f 158 1 leffee, if ejeted, was by a writ of covenant^ againft the leffor,
to recover the term (if in being) and damages, in cafe the
oufter was committed by the ledx)r fiimfelf : or, if the ternt
was expired, or the oufter was committed by a (lranger,claim-
ing by an elder title, then to recover damages only ^.
No pcrfon could at common law take advantage of any co-
Tcnant or condition, except fuch as were parties or privies
thereto j and, of 'courfe, no grantee or aflignee of any rever-
sion or rent. To remedy which, and more effetually to fe-
cure to the king's grantees the fpoils of the monafteries then
newly diffolved, the ftatute 32 Hen. VIII. c. 34. gives the
alCgnee of a reverfion (after notice of fuch affignriient '') the
fame remedies againft the particular tenant, by entry or aftionj
for wafte or other forfeitures, non-payment of rent, and non-
performance of conditions, covenants, and agreements, as the
afllgnor himfelf might have had , and makes him equally
liable, on the other hand, for ads agreed to be performed by
the aflignoT, except in the cafe of warranty.
3. A PROMISE is in the nature of a \"erbal covenant, and
wants nothing but the folemnity of writing and fealing to
make it abfolutely the fame. If therefore it be to do any ex-
plicit 3(9:, it is an exprefs contract, as much as any covenant ;
and the breach of it is an equal injury. The remedy indeed
is not exadlly the fame : fince, inftcad of an aflion of cove-
nant, there only lies an ation upon the cafe, for what ia
called the afumpftt or undertaking of the defendant; the
failure of performing which is the wrong or injury done to
* See book II. ch,^. * Co. Lkt zx^. Moor. 8/6. Cro
Bro.jiir. t.cwtnant. 33. F. N.B.' Jac, 145.
76. ^
Ch. 9 Wrongs. 158
the plaintiff, the damages whereof a jury are to ellimate and
fettle. As if a builder promifes, undertakes, or aflumes to
Caius, that he will build and cover his houfe within a time
limited, and fails to do it ; Caius has an atlion on the cafe
againft the builder, for this breach of his exprefs promife,
undertaking, ox'affumpftt : and fhall recover a pecuniary fa-
tifaftion for the injury fuftained by fuch delay. So alfo in
the cafe before-mentioned, of a debt by Gmple contrail, if the
debtor promifes to pay it and does not, this breach of promife C 159 3
entitles th^ creditor to his adlion on the cafe, inftead of being
driven to an aclion of debt ". Thus likewife a promlflbry
note, or note of hand not under feal, to pay money at a day
certain, is an exprefs ajjumpfit ; and the payee at common
law, or by cuftom and act of parliament the indorfee ", may
recover the value of the note in damages, if it remains un-
paid. Some agreements indeed, though never fo exprefsly
made, are deemed of fo important a nature, that they ought
not to reft in verbal promife only, which cannot be proved
but by the memory {which fometimes will induce the per-
jury) of witnefles. To prevent which, the ftatute of frauds
and perjuries, 29 Car. II. c. 3. ena^s, that in the five follow-
ing cafes no verbal promife (hall be fufficient to ground an
action upon, but at the leaft fome note or memorandum of it
(hall be made in writing, and figned by the party to be
charged therewith : i. Where an executor or adminiftrator
promifes to anfwer damages out of his own eftate. 2. Where
a man undertakes to anfwer for the debt, default, or mifcar-
riage of another. 3. Where any agreement is made, upon
confideration of marriage. 4. Where any contraft or fale
is made of lands, tenements, or hereditaments, or any intereft
therein. 5. And, laftly, where there is any agreement that
is not to be performed within a year from the making there-
of. In all thefe cafes a mere verbal aJJumpfit is void (4).
4 Rep. 92. f See book II. ch. 30.
(4) Thefe provlfions In the ftatute have produced many de-
cifions both in the courts of law and equity.
It is determined, that if two perfons go to a fliop, and one
orders goods, and the other fays, " if he does not pay I will, or I
Vol. ly. N will
159 Private Book III.
From thefe exprefs contrails the tranfition Is cafy to thofc
that are only implied by law. Which are fuch as reafon and
'* will fee yon paid," he is not bound unlefs his engagement is
reduced into writing. In all fuch cafes the queftlon is, who is the
buyer, or to whom the credit is given, and who is the furety ; and
that queftion, from all the circumftances, muft be afcertained by
the jury : for if the perfon for whofe ufe the goods are furnifhed
be liable at all, any promife by a third perfon to difcharge the debt
muft be in writing, otherwife it is void. 2 7*. R. 8o. H. Bl. Rep.
120. Mutual promlfes to marry need not be in writing, but the
ftatute relates only to agreements made in confideration of the
marriage. A leafc not exceeding three years from the making
thereof, and in which the rent referved amounts to two thirds of
the improved value, is good without writing ; but all other parol
leafes or agreements for any intereft in lands, have the effedl of
eftates at will only. Bull. N. P. z'jg. All declarations of trufts,
except fuch as refult by implication of law, muft be made in writ-
ing. 29 Car. II. f. 3. /. 7. & 8.
If a promife depends upon a contingency, which may or may
not fall within a year, it is not within the ftatute ; as a promife to
pay a fum of money upon a death or marriage, or upon the return
of a fhip, or to leave a legacy by will, is good by parol; for fuch a
promife may by poffibility be performed within the year. 3 Burr,
1278. I &alk. 280. 3 Salk. 9. l^c.
With regard to the contradls for goods of the value of 10/.,
fee 2 vol. 448. n. 6. & 7.
But a court of equity will decree a fpecific performance of a ver-
bal contraft, when it is confefTcd by a defendant in his anfwer,
or when there has been a part performance of it ; as by pay-
ment of part of the confideration money, or by entering and
expending money upon the eftate, for fuch afts preclude the
party from denying the exiftence of the contra<5l, and prove
that there can be no fraud or perjury in obtaining the executioa
of it.
If one party only figns an agreement, he is bound by it ; and If
an agreement is by parol, but it Is agreed it ftiall be reduced into
writing, and this is pt evented by the fraud of one of the parties,
performance of it will be decreed. 2 ^ro. 564, 5, 6. See 3 /^ooa'.
Lea. Ivii. and Fonblanque Tr. ofEq. b. i. c. 3./. 8. &-9, where this
fubjedl is fully and learnedly difcuffed.
5 juftice
Ch. g. W R o N d s. 15^.
iufticc dictate, and which therefore the laW prefumes thaf
every man has contradled to perform ; and, upon this pre-
fumption makes him anfwetabie to fuch perfons, as fufFet
by his non-performaiice*
Of this nature, are, firfl, fuch as are neceffarily ittiplied by
the fundamental conftitution of government, to which every
man is a contradling party. And thus it is that every perfon
is bound and hath virtually agreed to pay fuch particular fums [ ido ]
of money, as are charged on him by the fentence, or aiTefled
by the interpretation, of the law. For it is a part of the
original contral, entered into by all mankind who partake
the benefits of fociety, to fubmit in all points to the muni-
cipal conftitutions and local ordinances of that ftate, of
which each individual is a member. Whatever therefore
the laws order any one to pay, that becomes inftantly a debt,
which he hath beforehand contraled to difcharge. And
this implied agreement it is, that gives the plaintiff a right
to inftitute a fecond aftion, founded merely on the general
contrafl, in order to recover fuch damages or fum of money,
as are aflefled by the jury and adjudged by the court to be
due from the defendant to the plaintiff in any former aftion.
So that if he hath once obtained a judgment againfl: another
for a certain fum, and negle61:s to take out execution there-
upon, he may afterwards bring an adlion of debt upon this
judgment", and fliall not be put upon the proof of the ori-
ginal caufe of alion ; but upon lliewing the judgment once
obtained, dill in full force, and yet unfatisfied, the law im-
mediately implies, that by the original contract of fociety the
defendant hath contracted a debt, and is bound to pay it.
This method feems to have been invented, when r^fl/adtions
were more in ufe than at prefent, and damages were permitted
to be recovered thereon; in. order to have the benefit of a
writ of capias to take the defendant's body in execution for
thofe damage^, which procefs was allowable in an atiort of
K I Roll. Abr. 600, 601. *
N a debt
i6o ' Private Book III,
debt (In confequence of the (latute 25 Edw. III. c. 17.) but
not in an alion real. Wherefore, fince the difiife of thofe
real aftions, adlions of debt upon judgment in perfonal fuits
have been pretty much difcountenanced by the courts, as
being generally vexatious and oppreffive, by haraffing the de-
fendant vrith the cofts of two actions inftead of one.
On the fame principle it is, (of an implied original con-
tradl to fubmit to the fules of the community whereof we
are members,) that a forfeiture impofed by the bye-.laws and
[ 161 ] private ordinances of a corporation upon any that belong to
the body, or an amercement fet in a court-leet or court-baron
upon any of the fuitors to the court (for otherwife it will not
be binding **) immediately create a debt in the eye of the law :
and fuch forfeiture or amercement, if unpaid, work an injury
to the party or parties entitled to receive it j for which the
remedy is by zQlon of debt*.
The fame reafon may with equal juflice be applied to all
penal ftatutes, that is, fuchadls of parliament whereby a for-
feiture is infliled for tranfgrefhng the provifions therein
enadled. The party offending is here bound by the funda-
mental contrai of fociety to obey the diredlions of the le-
giflature, and pay the forfeiture incurred to fuch perfons as
the law requires. The ufual application of this forfeiture is
cither to the party aggrieved, or clfe to any of the king's fub-
je6ts in general. Of the former fort is the forfeiture infliled
by the ftatute of Winchefter ^ (explained and enforced by
feveral fubfequent Itatutcs ') upon the hundred wherein a
man is robbed, which is meant to oblige the hundredors to
make hue and cry after the felon ; for, if they take him, they
ftand excufcd. But otherwife the party robbed is entitled to
profecute them by a fpecial adlion on the cafe, for damages
equivalent to his lofs. And of the fame nature is the adlion
* Liw of ni/ifrius. 155. ' 27 Elia, c. 13. 29 Car. II. c. 7.
> 5 Rep. 64. Hob. 179. 8 Geo, tl. c. 16. 22 Geo. II. c. 24.
^ 13 Edw. I. c. I,
given
Ch. 9. Wrongs. 161
given by ftatute 9 Geo. I. c. 22. commonly called the black
adl, againft the inhabitants of any hundred, in order to make '
fatisfaOion in damages to all perfons who have fuffered by
tlie oflences enumerated and made felony by that a<^. But,
more ufually, thefe forfeitures created by ftatute are given at
large, to any common informer ; or, in other v^ords, to any
fuch perfon or perfons as will fue for the fame: and hence
fuch alions are called popular adlions, becaufe they are given
to the people in general . Sometimes one part is given to
the king, to the poor, or to fome public ufe, and the other
part to the informer or profccutor ; and then the fuit is called
a qui tarn aftion, becaufe it is brought by a perfon " qui [ 162 j
" tarn pro domino rege^ isfc. quamprofe ipfo in hac parte fequi^
" turT If the king therefore himfclf commences this fuit,
he (hall have the whole forfeiture ". But if any one hath be-
gun a qui tani, or popular adlion, no other perfon can pur-
fue it J and the verdicl pafled upon the defendant in the firft
fuit is a bar to all others, and conclufive even to the king him-
felf. This has -frequently occafioned offenders to procure
their own friends to begin a fuit, in order to foreflall and
prevent other aQions ; which pralice is in fome meafure
prevented by a ilututc made in the reign of a very fharp-
fighted prince in pei>al laws, 4 Hen. VII. c. 20. which enatls,
that no recovery, otherwife than by verditl, obtained by col-
lufion in an action popular, fhall be a bar to any other action
profecuted bona fide. A provifion, that feems borrowed from
the rule of the Roman law, that if a perfon was acquitted of
any accufation, merely by the prevarication of the accufer,
anew profecution might be commenced againft him.
A SECOND clafs of implied contrails are fuch as do not
arife from the exprefs determination of any court, or the po-
fitive dire<n:ion of any ftatute \ but from natural reafon, and
the juft conftru(fliou of law. Which clafs extends to all
prefumptive undertakings or ajfumpfits ; which though never
perhaps actually made, yet conftantly arife from this general
n See book II. ch- 29. * Ff. 47. 15. 3.
a Hawk. P. C. z68.
N 3 implication
iCi Private Book III.
implication and intendment of the courts of judicature, that
every man hath engaged to perform what his duty or juilice
requires. Thus,
1. If I employ a perfon to tranfadl: any bufinefs for me,
or perform any work, the law implies that I undertook or
aflumed to pay him fo much as his labour deferved. And if
I iieglecl to make him amends, he has a remedy for this
injury by bringing his a6lion on the cafe upon this implied
ajfumpftt ; wherein he is at liberty to fuggeft that I promifed
to pay him fo much as he reafonably deferved, and then to
r j^q -j aver that his trouble was really worth fuch a particular fum,
which the defendant has omitted to pay. But this valuation
of his trouble is fubmitted to the determination of a jury ;
who will aflefs fuch a fum in damages as they think he
really merited. This is called an ajfumpfit on a quantum
meruit.
2. There is alfo an Implied njfumpjit on a quantum valehat^
which is very fimilar to the former ; being only where one
takes up goods or wares of a tradefman, without exprefsly
agreeing for the price. There the law concludes, that both
parties did intentionally agree, that the real value of the
goods fliould be paid ; and an aiSlion on the cafe may
be brought accordingly, if the vendee refufts to pay that
value.
3. A THiRd fpecies of implied ajpimpftts is when one has
had and received money belonging to another, without any
valuable confideration given on the receiver's part : for the
law conftrues this to be mpney had and received for the ufe
of the owner only ; and implies that the perfon fo receiving
promifed and undertook to account for it to the true pro-
prietor, Apd, if he unjuftiy detains it, an atlion on the
cafe lies againft him for the breach of fuch implied promifc
and undertaking ; and lie will be ma'de to repair the owner
in damages, equivalent to what he has detained in violation of
Cuch his promifc. This is a ver^ extenfive and beneficial re-
medy,
Ch. 9. Wrongs. 163
medy, applicable to almoft every cafe wher6 the defendant
has received monev which ex aequo et bono he ought to refund.
It lies for money paid by miftake or on a confideration which
happens to fail, or through impofition, extortion, or oppref-
fjon, or where any undue advantage is taken of the plaintiff's
fjtuation ^.
4. Where a perfon has laid out and expended his own
money for the ufe of another, at his requeft, the law implies
a promife of repayment, and an adion will lie on this
5. Likewise, fifthly, upon a flated account between two i<54 1
merchants, or other perfons, the law implies that he againft
whom the balance appears has engaged to pay it to the other;
though there be not any aftual promife. And from this im-
plication it is frequent for aftlons on the cafe to be brought,
declaring that the plaintiff and defendant had fettled their
accounts together, injtmul computaJJ'tnty (which gives name
to this fpecics of nffitvipftt^) and that the defendant engaged
to pay the plaintiff the balance, but has fince negledled to
do it. But if no account has been made up, then the legal
remedy is by bringing a writ oi accouftty de computo^ ; com-
manding the defendant to rendera juft accountto the plaintiff,
or fliew the court good caufe to the contrary. In this action,
if the plaintiff" fucceeds, there are two judgments; the firft
4Burr. 1012. 'F. N. B. 116. *
* Carth. 446. a Keb. 99.
(5) If a furety in a bond pays the debt of the principal, he
may recover it back from the principal in an aftion of ajfumpfu^
for fo much money paid and advanced to his ufe ; yet in ancient
times this aftion could not be maintained ; and it is faid, that the
firft cafe of the kind, in which the plaintiff fuccceded, was tried
before the late Mr. J. Gould at Dorchefter. But this is perfeS^ly
confiftent with the equitable principles of an ajfxwpft, 2 T, R.
105.
N 4 is.
164 Private Book III.
Is, that the defendant do account (qncd computet) before
auditors appointed by the court; and, when fuch account is
finifhed, then the fecond judgment is, that he do pay the
plaintiff fo much as he is found in arrear. This adtion, by
the old common law', lay only againfl the parties themfelves,
and not their executors ; becaufe matters of account refted
folely in their own knowlege. But this dtizCty after many
fruitlefs attempts in parliament, was at laft remedied by (la-
tute 4 Ann. c. 16. which gives an aftion of account againfl
the executors and adminiflrators. But however it is found
by experience, that the moft ready and efFeftual way to fettle
thefe matters of account is by bill in a court of equity, where
a difcovery may be had on the defendant's oath, without re-
lying merely on the evidence which the plaintiff may be able
to produce. Wherefore actions of account, to compel a
man to bring in and fettle his accounts, are now very feldom
ufed ; though, when an account is once ftated, nothing is
more common than an adtion upon the implied ajfumpfit to
pay the balance.
r j5r T 6. The lafl clafs of contrails, implied by reafon andcon-
flrudtion of law, arifes upon this fuppofition, that every one
who undertakes any office, employment, trufl, or duty, con-
trals with thofe who employ or entrufl him, to perform it
with integrity, diligence, and fkill. And, if by his want
of either of thofe qualities any Injury accrues to individuals, '
they have therefore their remedy in damages by a fpecial ac-
tion on the cafe. A few inflances will fully illuflrate this
matter. If an officer of the public Is guilty of negleft of
duty, or a palpable breach of it, of non-feafance or of mif-
feafance ; as, if the flieriff does not execute a writ fent to
him, or if he wilfully makes a falfe return thereof; in both
thefe cafes the party aggrieved fhall have an alion on the cafe^
for damages to be afTefTed by a jury'. If a fherifFor gaoler
fuffcrs a prifoner, who is tsken upon mefne proccfs (that
Co. Lite. 50, * Mpor. 4.31. 11 Rep. 09,
18*
Ch. 9. Wrongs. 165
is, during the pendency of a fuk) to cfcape, he is liable to
an aOi'ion on the cafe ". But if, after judgment, a gaoler or
a (heriff permits a debtor to cfcape, who is charged in execu-
tion for a certnin fum ; the debt immediately becomes his
own, and he is compellable by adlion of debt, being for a
fum liquidated and afcertained, to fatisfy the creditor his
whole demand: which dodlrine is grounded^ on the equity
of the ftatutes of Weftm. 2.13 Ed w. I. c. 1 1 . and 1 Ric. II.
c. 1 2. An advocate or attorney that betray the caufe of their
client, or, being retained, negleft to appear at the trial, by
which the caufe mifcarries, are liable to an a6lion on the cafe,
for a reparation to their injured client " (6). There is alfo
in law always an implied contraft with a common inn-keeper,
to fecurehis guefts goods in his inn; with a common carrier
or bargemaftcr, to be anfwerable for the goods he carries (7) ;
Cro. Eliz. 6Z5. Comb. 69. " Finch. L. io8.
* Bra. Abr.t.purliament. 19. 2 Inft. 38a.
(6) It has been held, tliat an a6tIon could not be maintained
againft an advocate for neglefting to appear at the trial, by which
the caufe mifcarried. The client nuift rely only upon his advo-
cate's honour. But in fuch a cafe I conceive if complaint was
made to the court in which the advocate pradlices, it would cen-
furi* him, or perhaps difbar him.
(7) In the cafe of Forwards. Piitard, i T. R. 27. it was de-
termined that the carrier was liable for a lofs occafioned by a fire,
w])ich the jury exprefsly found was not owing to any negligence
on the part of the carrier ; and Lord Mansfield declared, that '* by
" the cuftom of the realm, that is, by the common law, a carrier
" is in the nature of an infurer. It is laid down, that he is liable
* for every accident, except by the aft of God or the king's
** enemies. Now whet is the aft of God ? I confider it to mean
" fomething in oppofition to the aft of man, for every thing is
** the aft of God that happens by his permiffion ; every thing,
" by his knowledge. But to prevent litigation, coUufion, and
" the necefiity of going into circumftances impoflible to be un-
** ravelled, the law prefumes againft the carrier, unlefs he ftiews
** it was done by the king's enemies, or by fuch aft as could not
" happen
165 Private Book III.
with a ccmmon farrier, that he fhoes a horfe well, without
laming him ; with a common taylor, or other workman, that
** happen by the intervention of man, as ftorms, lightning, and
* tempefts. If an armed force come to rob the carrier of the
* good?, he is h'able j and the true reafon is, for fear it may give
** room for collufion, that the mailer may contrive to be robbed
* on purpofe and fliare the fpoih"
The fame is the law refpefting- carriers on navigable rivers or
the high feas, fubjecl to reftrlftions by two acts of parliament.
The 7 Geo. II. c. 15. provides that, if the lofs arifes by the em-
bezzlement or diflionefty of the mailer or any of the mariners
in the fhip, tlie owner fhall only be liable to the amount of the
value of the fhip and freight. 1 T. R. 18.
The 26 Geo. III. c. 86. Hill farther provides, that the fiiip.
owners fhall not be linble for a lofs occafioned by a robber)' or
embezzlement committed by any perfon whatever without their
privity beyond the value of the fnip and the freight.
And it exempts them from all liability to anfwer for a lofs oc-
cafioned by fire, and alfo in the cafe of a robbery of gold, filver,
cratches, and precious ilones, unlefs the proprietor declare to the
mafler or fhip-owners in writing the nature and value of fuch arti-
cles. But Hill many cafes occur, which the fhip-owners think fo
tard upon them, that they hav^ made frequent attempts, but
vitbont fuccef, to prevail upon the Icgiflature to give them far-
ther relief.
The rate of carriage being not only a compenfation for labour
and the expence incurred, but alfo a premium of infurance for the
fafe delivery of the goods entrufted to the care of the carrier, he
may therefore make a fpeclal contracl, by giving notice that he
will not l>e anfwcrable for money or other valuable articles above
a certain fum unlefs he has notice of them, and is paid an ex"-
traordinary fum for the infurance. But the carrier mull pnn'c
Bfvticc of this to the owner of the goods, in order to defend him-
fclf in an adtion, by proving that fuch notice was fluck up in a
confpicuous part of the office, when the owner brought his goods,
or that it was advertized in a Newfpapcr, which he was accuftom-
ed to read ; but the practice is now.fo general, or perhaps unr-
eifal, with the proprietors of ftagc-coaches, that the jury will
prefume that the owner of the article carried had notice upon the
fiighteft
Ch. 9. Wrongs. 165
he performs his bufinefs in a workmanlike manner : in which
if they fail, an alion on the cafe lies to recover damages for
fuch breach of their general undertaking y. But if I employ [ 166 y
a perfon to tranfadt any of thefe concerns, whofe common
profcflion and bufinefs it is not, the law implies no fuch ge-
neral undertaking ; but, in order to charge him with damages,
a^m/ agreement is required. Alfo, if an inn-keeper, or
other victualler, hangs out a fign and opens his houfe for tra-
vellers, it is an implied engagement to entertain all perfons
who travel thnt way ; and upon this univerfal ajjumpjit an
adlion on the cafe will He againfl: him for damages, if he
without good reafon refufes to admit a traveller ^ If any
one cheats mc with falfe cards or dice, or by falfe weights and
meafures, or by felling me one commodity for another, an
atStion on the cafe alfo lies againll him for damages upon
the contraft which the law always implies, that every tranf-
alion is fair and hone ft ^. In contradls like wife for fales,
it is conftantly underftood that the feller undertakes that the
commodity he fells is his own ; and if it proves otherwife,
an adlion on the cafe lies againfl him, to exadl damages for
this deceit. In contrails for provifions it is always implied
that they are wholefome ; and, if they be not, the fame re-
medy may be had, Alfo if he, that felleth any thing, doth
upon the fale warrant it to be good, the law annexes a tacit
contrail: to this warranty, that if it be not fo, he (hall make
compenfation to the buyer: elfe it is an injury to good faith, '
for which an alion on the cafe will lie to recover damages '*.
The warranty muft be upon the fale ; for if it be made after ^
and not at the time of the fale, it is a void warranty == : for it is
then made without any confideration j neither does the buyer
y 1 1 Rep. 54. 1 Saund. 324. '' F. N. B. 94.
"^ 1 Ventr. 3^3. ' Finch. L. 1S9.
JO Rep. 56.
fllghteft evidence of this nature. And the court of common pleat
have determined, that if a perfon, who has notice of fuch condi-
tions, ftnJs his goods without paying the extraordinary premium,
he is guilty of a fraud, and if they are lofl, he fliall not recover
even to the. extend of 5/. or the fum limited. 4 Burr. 2398.
\ Um. Bl 29S.
then
i66 Private Book III.
then take the goods upon the credit of the vendor. Alfo the
warranty can only reach to things in being at the time of the
warranty made, and not to things in future: as, that a horfe
is found at the buying of him j not that he will be found two
years hence (8). But if the vendor knew the goods to be un-
found, and hath ufed any art to difguife them <*, or if they
are in any fhape different from what he reprefents them to be
[ *i65 J to the buyer, this artifice (hall be equivalent to an exprefs
. warranty, and the vendor-is'anfwerable for their gcodnefs.
A general warranty will not extend to guard againft defeds
that are plainly and obvioufly the ov]et of one's fenfes, as if
a horfe be warranted perfed, and wants either a tail or an
car, unlefs the buyer in this cafe be blind. But if cloth is
warranted to be of fuch a length, when it is not, there an
atlion on the cafe lies for damages ; for that cannot be dif-
cerned by fight, but only by a collateral proof, the meafuring
it *. Alfo if a horfe is warranted found, and he wants the
fight of an eye, though this fcems to be the objed of one's
fenfes, yet as the difcernment of fuch defeds is frequently
matter of (kill, it hath been held that an alion on the cafe-
lieth, to recover damages for this impofition '.
Besides the fpecial adion on the cafe, there is alfo a pe-
culiar remedy, intitled an adion of tf^m/g, to give damages
in fome particular cafes of fraud ; and principally where one
man does any thing in the name of another, by which he is
deceived or injured '> ; as if one brings an aOion in another's
name, and then fuffers a non-fuit, whereby the plaintiff be-
comes liable to cofts : or where one obtains or fuffers a
* 2 Roll. Rep. 5. F. N. B 95.
Finch. L. 1&9. * Liw of nifi p,ius. xo.
'Salk.6ii. ^
(8) There feems to be no reafon or principle, why, upon a fuf-
ficient confideration, an exprefs warranty that a horfe fhould con-
tinue foMnd for two years, (hould not be valid. Lord Mansfield
declared, in a cafe In which the fentence in the text was cited, there
" is uo doubt but you may warrant a future event." Doug. 707.
'5 fraudulent
Ch. 9. W R.O N G s. *t6$
fraudulent recovery of lands, tenements, or chattels, to the
prejudice of him that hath right. As when by collufion the
attorney of the tenant makes default in a real adlion, or where
the (herifF returns that the tenant was fummoned when he
was not fo, and in either cafe he lofes the land, the writ of
deceit lies again ft the demandant, and alfo the attorney or the
(heriff and his officers ; to annul the former proceedings and
recover back the land '. It alfo lies in the cafes of warranty
before-mentioned, and other perfonal injuries committed
contrary to good faith and honefty ''. But an a<f!lion en the
cafcy for damages, in nature of a writ oi deceit j is more ufually
brought upon thefe occafions ^. And indeed it is the only *
remedy for a lord of a manor, in or out of antlent de-[ *i66 3
mcfne, to reverfc a fine or recovery had in the king's courts
of lands lying within his jurifdidion ; which would other-
wife be thereby turned into frank fee. And this may be
brought by the lord againft the parties and cejiny que ufe of
fuch fine or recovery ; and thereby he fhall obtain judgment
not only for damages (whiclj^are ufually remitted) but alfo
to recover his court, and jurifdilion over the lands, and to
annul the former proceedings ".
Thus much for the non-performance of contrails exprefs
or implied; which includes every poffible injury to what is
by far the moft confiderable fpecles of perfonal property; vi^.
that which conGfts in adlion merely, and not in pofleffion.
Which finilhes our inquiries into fuch wrongs as may be
offered to perfonal property, with their feveral remedies by
fuit or adiion.
* Booth, re^ af^ions, Z51. Raft. "" 3 Lev. 419.
Ent. zai 222. Secpag. 405. " Raft. Entr. 100. h, 3 Ler. 415*
* F. N. B. 98. , Lutw. 711. 749.
* Booth. 253 Co. Entr. 8.
1(57 Private Book IIL
CHAPTER THE TENTH.
OF INJURIES TO REAL PROPERTY,
AND FIRST OF DISPOSSESSION, OR
OUSTER OF THE FREEHOLD.
T COME now to confider fuch injuries as afFeft that fpe-
^ cies of property which the laws of England have deno-
minated real ; as being of a more fubftantial and perma-
nent nature, than thofe tranfitory rights of which perfonal
chattels are the objedl.
Real injuries then, or injuries afFeling real rights, are
principaMy fix j i. Oufter; 2. Trefpafs; 3. Nufance ;
4. Wafte ; 5. Subtralion ; 6. Difturbance.
Ouster, or difpofTeflion, is a wrong or injury that carries
with it the amotion of pofleflion : for thereby the wrong-
doer gets ioto the adtual occupation of the land or heredita-
ment, and obliges him that hath a riglit to feek his legal
remedy; in order to gain poll'effion, and damages for the in-
jury fuftained. And fuch oufter, or difpofleflion, may either
be of the freeloIJj or oi chattels real. Oufter of the freehold is
efFeded by one of the following methods, i. Abatement ;
2. Intrufionj 3. Difleifin; 4. Difcontinuance ; 5. Deforce-
ment. All of which in their order, and afterwards their
refpsdlive remedies, will be confidered in the prefent chapter.
I. And, firft, an abatement is where a perfon dies felfed of
an inheritance, and before the heir or devifee enters, a ftranger
who
. ll.ltaiU f/uueit.
/./l./l.ii.iy..:-iil/:.
r-J.ii fli^j c^r.jK.
Ch. lO. Vy^ R O N G s. i69
who has no right makes entry, and gets pofleflion of tlie free-
hold : this entry of him is called an abatement, and he him-
felf is denominated an abator *. It is to be obfervexi that
this cxpreflion, oi abatifig, which is derived from the French,
and fjgnifics to quafh, beat down, or cieilroy^ is ufed by our
law in three fenfes. The firft, which fetms to be the pri-
niitive fcnfe, is that of abating or beating down a nufance,
of wliich we fpoke in the beginning of this book '^ ; and in
a like fenfc it is ufed in ilatute Weftm. r. 3 Edw. I. c. 17.
where mention is made of abating a caftle or fortrefs j in
which cafe it clearly fignifies to pull it down, and level ii
with the ground. The fecond fignification of abatement is
that of abating a writ or adiion, of which we fliall fay more
hereafter : here it is taken figuratively, and fignifies the over-
throw or defeating of fuch writ, by fome fatal exception to
it. The lafl fpccies of abatement is that we have now before
us; which is alfo a figurative exprefTion to denote that the
rljjhtful pofleHion or freehold of the heir or devifee is over-
thrown by the rude intervention of a flranger.
This abatement of a freehold is fomewhat fimilar to an
immediate occupancy in a (late of nature, which is efFetSled
by taking pofTcffion of the land ths fame inllant that the prior
occupant by his death rellnquiflies It. But this, however
agreeable to natural juftice, confidering man merely as an
individual, is diam.etrlcally oppofite to the law of fociety, and
particularly the law of England: which, for the prefervatiou
of public peace, hath prohibited as far as polTble all acqui-
fitions by mere occupancy : and hath direled that lar.ds, oa
the death of the prcfcnt poffcfTor, fiiould immediately vcft
cither in fome perfon, expj-efsly named and appointed by the
Ucceafed, ns his devifee ^ or, on default of fuch appointment,
in fuch of his next relations as the law hath feledlcd and
pointed out as his natural reprefentative or heir. Every
entry therefore of a mere flranger by way of intervention '
between the ancellor and heir or perfon ne\t entitled, which
Finch. L, 195. j-a/e 5.
keeps
1^9 Private Book III.
keeps the heir or devlfee out of pofleffion, is one of the higheft
injuries to the right of real property.
2. The fecond fpecies of injury by oufter, or amotion
of pofleflion from the freehold, is by intrufton : which is the
entry of a ftranger, after a particular eftate of freehold is de-
termined, before him in remainder or reverfion. And it
happens where a tenant for term of life dieth feifed of certain
lands and tenements, and a ftranger entereth thereon, after
fuch death of the tenant, and before any entry of him in re-
mainder or reverfion '^. This entry and interpoCtion of the
ftranger differ from an abatement in this ; that an abatement
is always to the prejudice of the heir, or immediate devifee;
an intrufion is always to the prejudice of him in remainder
or reverfion. For example : if A dies feifed of lands in fee-
Cmple, and, before the entry of B his heir, C enters thereon,
this is an abatement ; but if A be tenant for life, with re-c
mainder to B in fee-fimple, and, after the death of A, C
enters, this is an intrufion. Alfo if A be tenant for life on
leafe from B, or his anceftors, or be tenant by the curtefy,
or in dower, the reverfion being vefted in B ; and after the
death of A, C enters and keeps B out of pofleflion, this is
likewife an intrufion. So that an intrufion is always imme-
diately confequent upon the determination of a particular
eftate ; an abatement is always confequent upon the defcent
or devife of an eftate in fee-fitpple. And in either cafe the
injury is equally great to him whofe pofleflion is defeated by
this unlawful occupancy.
3. The third fpecies of injury by oufter, or privation of
the freehold, is by dijfeifm. Difleifin is a wrongful putting
out of him that "is feifed of the freehold ^. The two former
fpecies of injury were by a wrongful entry where the pofl^eflion
was vacant ; but this is an attack upon him who is in alual
poflTeflion, and turning him out of it. Thofe were ian oufter
from a freehold in law ; this is an oufter from a fr> ehold in
deed. Difleifin may be efleledeitherincorporeal inheritances,
Co. Litt. 277. F.N.B. 203, 204. < Co. Litt. 277.
or
Ch. 10. Wrongs. 170
or Incorporeal. Difleifin of things corporeal, as of houfes,
lands, ^c. muft be by entry and aQual difpofleffion of the
freehold * ; as if a man enters either by force or fraud into
the houfc of another, and turns, or at leaft keeps, him or his
fervants out of pofltiTion. Difleifin of incorporeal heredita-
ments cannot be an actual difpofleflion ; for the fubjeft itfelf
is neither capable of aQual bodily pofleflion, nor difpoflefTion:
but it depends on their refpedlive natures, and various kinds;
being in general nothing more than a difturbance of the owner
in the means of coming at, or enjoying them. With regard
to freehold rent in particular, our antient law-books ^ men-
tion five methods of working a difleifin thereof: i. By <?-
clofure; where the tenant fo enclofeth the houfe or land, that
the lord cannot come to diftrein thereon, or demand it: 2. By
forejialkry or lying in wait : when the tenant befetteth the
way with force and arms, or by menaces of bodily hurt af-
frights the leflbr from coming : 3. By refcous ; that is, either
by violently retaking a diftrefs taken, or by preventing the
lord with force and arms from taking any at all : 4. By re-
plevin ; when the tenant replevies the diflirefs at fuch time
when his tent is really due : 5. By denial: which is when
the rent being lawfully demanded is not paid. All, or any of
thefe circumftances amount to a difl'eifin of rent; that is, they
wrongfully put the owner out of the only pofleflion, of which
the fubjet- matter is capable, namely, the receipt of It. But
all thefe diflTeifins, of hereditaments incorporeal, are only fo
at the eledion and choice of the party injured ; if, for the
fake of more eafily trying the right, he is pleafed to fuppofe
himfelf dlfleifed ^. Otherwife, as there can be no aQual
difpofleflion, he cannot be compulfively dlflieifed of any in-
corporeal hereditament.
And fo too, even In corporeal hereditaments, a man may
frequently fuppofe himfelf to be difl'eifed, when he is not fo
in fact, for the falce of entitling himfelf to the more eafy and
commodious remedy of an aflife of novel dijfeifm, (which will
be explained in the fequel of this chapter,) infliead of being
* Co. Litt. iSi. f Litt. 588, 589.
' Finch. L. 165, 166. Litt. 237, ^c.
X^oL. III. O driven
iji Private Book IIL
driven to the more tedious proccfs of a writ of entry 5. The
true injury of compulfive difleifin feems to be that of difpof-
fefling the tenant, and fubftituting onefelf to be the tenant of
the lord in his (lead j in order to which in the times of pure
feodal tenure the confent or connivance of the lord, who
upon every defcent or alienation perfonally gave, and who
therefore alone could change, the feifm or inveftiture, feems
to have been coufidered as neceflary. But when in procefs of
time the feodal form of alienations wore off, and the lord was
no longer the inftrument of giving aftual feifin, it is probable
that the lord's acceptance of rent or fervice, from him who
had difpoflefled another, might conftitute a complete difleifin.
Afterwards, no regard was had to the lord's concurrence,
but the difpofleflbr himfelf was confidered as the fole difl'eifor :
and this wrong was then allowed to be remedied by entry
only, without any form of law, as againft the diflcifor him-
felf; but required a legal procefs againft his heir or alienee.
And when the remedy by aflife was introduced under Henryll,
to redrefs fuch difleifins as had been committed within a few
years next preceding, the facility of that remedy induced
others, who were wrongfully kept out of the freehold, to
feign or allow themfelves to be difleifed, merely for the fake
of the remedy.
These three fpecies of injury, abatement^ intrufton, and
dtjfeifm, are fuch wherein the entry of the tenant ab initio, as
well as the continuance of his pofleflion afterwards, is un-
lawful. But the two remaining fpecies are where the entry
of the tenani was at firft lawful, but the wrong confifts in
the detaining of pofleflion afterwards.
4. Such is, fourthly, the injury of difcontinuatice ; Which
happens when he who hath an eftate-tail, maketh a larger
eftate of the land than by law he is entitled to do** : in which
cafe the eftate is good, fo far as his power extends who made
it, but no farther. As if tenant in tail makes a feoffment
in fee-fimple, or for the life of the .feoffee, or in tailj all
Uingb, farv, e, 7, ^ Burr. 110. * Finsh. L. 190.
14 which
Ch. lo. Wrongs. 172
which are beyond his power to make, for that by the com-
fnon law extends no farther than to make a leafe for his own
life; in fuch cafe the entry of the feoffee is lawful during the
life of the feoffor ; but if he retains the poffefTion after the
death of the feoffor, it is an injury, which is termed a dif-
continuance ; tlie antient legal eftate, which ought to have
furvived to the heir in tail, being gone, or at leaft fufpended,
and for a while difcontinued. For, in this cafe, on the death
of the alienors, neither theiieir in tail, nor they in remainder
or reverfion expedlant on the determination of the eflate-tail,
can enter on and pofTefs the lands fo aHenated. Alfo, by the
common law, the alienation of an hufband who was feifed in
tlie right of his wife, worked a difcontiimance of the wife's
eflate : till the ftatute 32 Hen. VIII, c. 28. provided, that
no al by the hufband alone fhall work a difcontinuance of,
or prejudice, the inheritance or freehold of the wife ; buf
that, after his death, fhe or her heirs may enter on the lands
in queftion. Formerly alfo, if an alienation was made by a
fole corporation, as a bifhop or dean, without confent of the
chapter, this was a difcontinuance ', But this is now quite
antiquated by the difabling ftatutes of i Eliz. c. 19. and
13 Eliz. c. 10. which declare all fuch alienations abfolutely
void ab ifiitioi and therefore at prefeut no difcontinuance can
be thereby occafioned,
5, The fifth and lafl fpecies of injuries by oufler or pri-
vation of the freehold, where the entry of the prefent tenant
or poffefTor was originally lawful, but his detainer is now
become unlawful, is that by deforcement. This, in it*s mofl ex-
tenfive fenfe, is nomen generaljjjlnnnn ; a much larger and more
comprehenfive exprefhon than any of the former: it then
fignifylng the holding of any lands or tenements to which
another perfon hath a right''. So that this includes as well an
abatement, an intrufion, a difTeifin, or a difcontinuance, as
any other fpecies of wrong whatfoever, whereby he that hath
right to the freehold is kept out of pofTefhon. But, as contra-
iiftinguifhed from the former, it is only fuch a detainer of the
' F. N. B. 194. k Co. Lite. a77.
O 2 freehold,
173 Private Book III,
freehold, from him th: -: ,.: 'i the right of property, but never
had any poflefTion under .' .t right, as falls within none of
the injuries which we have before explained. As in cafe
where a lord has a feignory, and lands efcheat to him prop'
ter defe&um fangmnisi but the feifm of the lands is withheld
from him : here the injury is not abatement^ for the right vefts
not in the lord as heir or devifee, nor is it wtrufion, for it vefts
not in him who hath-the remainder or reverfion ; nor is it dif-
Jeijuiy for the lord was never feifed ; nor does it all bear the
nature of any fpecies of dtfcont'wnatice -, but, being neither of
thefe four, it is tlierefore a deforcement '. If a man marries a
woman, and during the coverture is feifed of lands, and
alienes, and dies; is difleifed, and dies; or dies in pofleflion \
and the alienee, difleifor, or heir, enters on the tenements
and doth not aflign the widow her dovi^er ; this is alfo a de-
forcement to the widow, by withholding lands to which fhc
hath a right "". In like manner, if a man leafe lands to ano-
ther for term of years, or for the life of a third perfon, and
the term expires by furrender, efflux of time, or death of the
cejluy que vie ; and the leflee or any ftranger, who was at the
expiration of the term in pofleflion, holds over, and refufes
to deliver the pofleflion to him in remainder or reverfion, this
is likewife a deforcement ". Deforcements may alfo arife
upon the breach of a condition in law ; as if a woman gives
lands to a man by deed, to the intent that he marry her, and
he will not when thereunto required, but continues to hold
the lands : this is fuch a fraud on the man's part, that
the law yill "ot allow it to deveft the woman's right of pof-
fefllon J though, his entry being lawful, it does divert the
alual poflTefllon, and thereby becomes a deforcement". De-
forcements may alfo be grounded on the difability of the party
deforced : as if an infant do make an alienation of his lands,
and the alienee enters and keeps pofleflion ; now, as the alien-
ation is voidable this pofleflion as againfl: the infant (or,
in cafe of his deceafe, as againft his heir) is after avoidance
wrongful, and therefore a deforcement p. The fame happens,
' F. N. B. 143. 205, 6, 7. See book II. c. 9. pag. 151. ^^
Ibid. 8. 147. " F. N. B. 205.
Finch. L. 263, F, N B. 201. p Finch. L. 264. F, N, B. 192.
when
Ch. 10. Wrongs. 174
when one of nonfane memory alienes his lands or tenements,
and the alienee enters and holds poflefTion, this may alfo be
a deforcement "J. Another fpecies of deforcement is, where
two perfons have the fame title to land, and one of them en-
ters and keeps pofleflion againft the other: as where the an-
cellor dies feifed of an eftate in fee-fimple, which defcends
to two fifters or coparceners, and one of them enters before
the other, and will not fuffer her filler to enter and enjoy her
moiety i this is alfo a deforcement '. Deforcement may alfo
be grounded on the non-performance of a covenant real ; as
if a man, feifed of lands, covenants to convey them to ano-
ther, and neglels or refufes fo to do, but continues poflef-
fion againft him; this poffeffion, being wrongful, is a de-
forcement' : whence, in levying a fine of lands, the perfon,
againft whom the fidlitious alicn is brought upon a fuppofcd
breach of covenant, is called the deforciant. And, laftly, by
way of analogy, keeping a man by any means out of a free-
hold office is conftrued to be a deforcement ; though, being
an Incorporeal hereditament, the deforciant has no corporeal
poffeffion. So that whatever injury (w^ithholding the pof-
feffion of a freehold) is not included under one of the four
former heads, is comprized under this of deforcement.
The feveral fpecies and degrees of injury by ottfler being
thus afcertained and defined, the next confideration is the
remedy : which is, univerfally, the rejlitution of delivery of
pojftffon to the right owner *, and, in fome cafes, damages alfo
for the unjuft amotion. The methods, whereby thefe reme-
dies, or either of them, may be obtained, are various.
I. The firft is that extrajudicial and fummary one, which
we nightly touched in the firft chapter of the prefent book %
of entry by the legal owner, when another perfon, who hath
no right, hath previoufly taken poffeffion of lands or tene-
ments. In this cafe the party entitled may make a formal,
but peaceable, entry thereon, declaring that thereby he takes
poffeffion*, which notorious al of ownerffiip is equivalent to
a feodai inveftiturc by the lord ^ ; or he may enter on any
1 Finch. lh\d. F. N. B. ao2. ' See pag. 5.
' Finch. L. 293. 194. f. N. B. 197. Sec book II. sh. 14. pag. 209.
F. N. B. 146.
Q 3 pan
1-75 Private Book III.
part of it in the fame county, declaring it to be in the name
of the whole " : but if it lies in different counties he muft
make different entries ; for the notoriety of fuch entry or
claim to the pares or freeholders of Weftmorland, is not any
notoriety to the pares or freeholders of Suflex. Alfo if there
be two diffeifors, the party diiTcifed muft make his entry on
both ; or if one difleifor has conveyed the lands with livery to
two diftinl feoffees, entry mufl be made on both"" : for as
their feifin is diftinl, fo alfo muft be the a6t which devefts
that feifin. If the claimant be deterred from entering by me-
naces or bodily fear, he may make claim, as near to the eftate
as he can, with the like forms and folemnities : which claim
is in force for only a year and a day ". And this claim, if
it be repeated once in the fpace of every year and day, (which
is called continual claim,) has the fame effedl with, and in all
refpefts amounts to, a legal entry ^. Such an entry gives a
man feifin ^, or puts into immediate pofTcflion him that hath
right of entry on the eftate, and thereby makes him complete
owner, and capable of conveying it from himfelf by either
defcent or purchafe.
This remedy by entry takes place in three only cf the five
fpecies of oufter, viz. abatement, intrufion, and diffeifin * :
for, as in thefe the original entry of the wrongdoer was un-
lawful, they may therefore be remedied by the mere entry of
him who hath right. But, upon a difcontinuance or de-
forcement, the owner of the eftate cannot enter, but is driven
to his adtion: for herein the original entry being lawful, and
thereby an apparent right of poflefHon being gained, the law
will not fuffer that right to be overthrown by the mere zSi or
entry of the claimant. Yet a man may enter "* on his tenant
by fufferance : for fuch tenant hath no freehold, but only a
bare poffelTion ; which may be defeated, like a tenancy at
will, by the mere entry of the owner. But if the owner
thinks it more expedient to fuppofe or admit' fuch tenant to
Litt. 417. Co. Litt. 15.
Co. Litt. 252. Ibid. Z37, Z38.
Litt. 422. * See book II. pag. io.
y IL'id, 419. 413, , 5 Co. Lilt. 57
hav
Ch. lo. Wrong s." iy6
have gained a tortious freehold, he is then remediable by^
writ o( entry J ad tcrmifium qui prneteriit.
On the other hand, in cafe of abatement, intrufion, or dif-
feifin, where entries are generally lawful, this right of entry
may be to/Zed^ that is, taken away, by defcent. Defcents,
which take away entries'^, are when any one, feifed by any
means whatfoever of the inheritance of a corporeal heredita-
ment, dies, whereby the fame defcends to his heir : in this
cafe, however feeble the right of the anceftor might be, the
entry of any other peri'on who claims title to the freehold is
taken away ; and he cannot recover poffeflion againft the heir
by this fummary method, but is driven to his alion to gain
a legal feifin of the eftate. And this, firft, becaufe the heir
comes to the eftate by al of law, and not by his own zQ. ;
the law therefore protects his title, and will not fufFer his
poffeflion to be develled, till the claimant hath proved a better
right. Secondly, becaufe the heir may not fuddenly know
the true ftate of his title ; and therefore the law, which i
ever indulgent to heirs, takes away the entry of fuch claimant
as neglected to enter on the anceftor, who was well able to
defend his title ; and leaves the claimant only the remedy of
an aflion againft the heir *. Thirdly, this was admirably
adapted to the military fpirit of the feodal tenures, and tended
to make the feudatory bold in war; fince his children could
not, by any mere entry of another, be difpofieffed of the
lands whereof he died feifed. And, laftly, it is agreeable to
the dictates of reafon and the general principles of law.
For, in every complete title ^ to lands, there are two
things neceffary, the poflelfion or fetfin, and the right or
property therein e : or, as it is exprefl'ed in Tlttz, Juris et
feiftnae conjunEiio ". Now, if the poffeflion be fevered from
the property, if A has theyV/T proprieiatis, and B by fomc un-
lawful means has gained poffeffion of the lands, this is an
injury to A ; for which the law gives a remedy, by putting
* Litt. ^ 385413. * Mirror, c. 2. 17.
* Co. Litt. 137. ' /. 3. f. 15. 5.
5 Sec book II. cb, 13.
O 4 him
177 Private Book III.
him in^ofleffion, but does it by different means according to
the circumftances of the cafe. Thus, as B, who was him-
felf the wrongdoer, and hath obtained the poffeflion by either
fraud or force, hath only a bare or naked pojfejjlon, without
any fliadow of right ; A therefore, who hath both the right
of property and the right of poffeflion, may put an end to his
title at once, by the fummary method of entry. But, if B
the wrongdoer dies feifed of the lands, then B's heir advances
one ftep farther towards a good title : he hath not only 2,bare
poffeflion, but alfo an apparentyW pojfejftonis^ or right of pof-
feflion. For the law prefumes, that the poffeffion, which is
tranfmitted from the anceflior to the heir, is a rightful pof-
feffiOn, until the contrary be (hewn : and therefore the mere
entry of A is not allowed to evil the heir of B ; but A is
driven to his adlion at law to remove the poffeflion of the
heir, though his entry alone would have difpoffeffed the an-
peftor.
So that in general it appears, that no man can recover pof-
feffion by mere entry on lands, which another hath by defcent.
Yet this rule hath fome exceptions ', wherein thofe reafons
ceafe, upon which the general doctrine is grounded ; efpe-
cially if the claimant were under any legal difabilities, during
the life of the ancefl:or, either of infancy, coverture, impri-
fonment, infanity, or being out of the realm : in all which
cafes there is no negleft or laches in the claimant, and there-
fore no defcent flial! bar, or take away his entry ''. And this
title of taking away entries by defcent, is ftiill farther nar-
rowed by the ft.atute 32 Hen. VIII. c. 33. which enats, that
if any perfon diffeifes or turns another out of poffeflion, no
defcent to the heir of the diffeifor fliall take away the entry of
him that has right to the land, unlefs the difleifor had
peaceable poffeffion five years next after the diffeifin. But the
ftatute extendeth not to any feoffee or donee of the diffeifor,
mediate or immediate ' : becaufe fuch a one by the genuine
feodal conftitutions always came into the tenure folemnly
' See the particular cafes mtntioned laiv of tenurtt.
Vy Littleton, b. 3. ch. 6. the principles ''Co. Lift. 246*
; which are well explained >o CUbtrt't ' Wid. 256.
and
Ch. lo. Wrongs. 17^
and with the lord's concurrence, by adual delivery of feifin,
that is, open and public inveftiture. On the other hand, It is
enaded by the ftatute of limitations, 21 Jac. I. c. 16. that no
entry fliall be made by any man upon lands, unlefs within
twenty years after his right (hall accrue. And by ftatute
4 & 5 Ann. c. 16. no entry (hall be of force to fatisfy the
faid ftatute cf limitations, or to avoid a fine levied of lands,
unlefs an aQIon be thereupon commenced within one year
after, and profecuted with efFedl.
Upon an oufter, by the difcontinuance of tenant in tail,
we have faid that no remedy by mere entry is allowed ; but
that, when tenant in tail alienes the lands entailed, this takes
away the entry of the iflue in tail, and drives him to his action
at law to recover the pofleflion "". For, as in the former
cafes the law will not fuppofe, without proof, that the an-
ceftor of him in poflefiion acquired the eftate by wrong ; and,
therefore, after five years peaceable pofTelTion, and a d^efcent
caft, will not fuffer the pofleflion of the heir to be difturbed
by mere entry without alion; fo here, the law will not fup-
pofe the difcontinuor to have aliened the eftate without power
fo to do, and therefore leaves the heir in tail to his alion at
law, and permits not his entry to be lawful. Bcfides, the
alienee, who came into pofleffion by a lawful conveyance,
which was at leaft good for the life of the alienor, hath not
only a bare pofleflion, but alfo an apparent right oi poflcfTion ;
which is not allowed to be devefted by the mere entry of the
claimant, but continues in force till a better right be (hewn,
and recognized by a legal determination. And fomething
alfo perhaps, in framing this rule of law, may be allowed to
the inclination of the courts of juftice, to go as far as they
could in making eftates-tail alienable, by declaring fuch alien*
ations to be voidable only and not abfolutely void.
In cafe of deforcements alfo, where the deforciant had ori-
ginally a lawful pofl!eflion of the land, but now detains it
wrongfully, he ftill continues to have the prcfumptive/rww
" Co. Litt. 325,
facie
179 Private Book III.
facie evidence of right \ that is, pofleflion lawfully gained.
Which poflefiion {hall not be overturned by the rpere entry
of another; but only by the demandant's (hewing a better
rbht in a courfe of law.
o
This remedy by entry muft be purfued, according to fta-
tute 5 Ric. 11. ft. I.e. 8. in a peaceable and eafy manner ;
and not with force or ftrong hand. For, if one turns or
keeps another out of poflcHion forcibly, this is an injury of
both a civil and a criminal nature. The civil is remedied by
imanediate reftitution ; which puts the antient poffeffbr in
J^niu quo ; the criminal injury, or public wrong, by breach
of the king's peace, is puniftied by fine to the king. For by
tlie ftatute 8 Hen. VI. c. 9. upon complaint made to any
j;ulliceof the peace, of a forcible entry, with ftronghand, on
lands or tenements ; or a forcible detainer after a peaceable
entry ; he Ihall try the truth of the complaint by jury, and,
upon force found, fliall reftore the poiTeffion to the party fo
put out ; and in fuch cafe, or if any alienation be made to
defraud the pofleflbr of his right, (which is like wife declared
to be abfolutely void,) the offender {hall forfeit, for the force
found, treble damages to the party grieved, and making fine
and ranfom to the king. But this does not extend to fuch as
endeavour to keep poffelhon maJiufortif after three years peace-
sble enjoyment of cither themfelves, their anceftors, or thofe
under v/hom they claim ; by a fubfeqnent claufe of the fame
itatute, enforced by ftatute 31 Eiiz. c. 11.
II. Thus far of remedies, where the tenant or occupier
f the land hath gained only a mere pojfejfton.^ and no apparent
ihadow of right. Next follow another clafs, which are in
ufe where the title of the tenant or occupier is advanced one
ftep nearer to pcrfedlio'n ; fo that he hath in hifri not only a
bare pofltlTion, which may be deftroyed by a bare entry, but
A{o. Tin apparent right of pajfi'lfiattf which cannot be removed
but by orderly courfe of law ; in the procefs of which it muft
be fhe wn that though he hath at prefent pofleflfiou and therefore
hath
Ch. 10. Wrongs. 180
hath the prefumptive right, yet there is a right of pofTefhon,
fuperior to his refiding in him who brings the action.
These remedies are either by a writ of entry, or an nj/ife :
which are adions merely poffljfory : ferving only to regain
tliat pofleflion, whereof the demandant (that is, he who
fues for the land) or his anceftors have been unjuftly de-
prived by the tenant or pofleflbr of the freehold, or thofe
under whom he claims. They decide nothing with refpedt
to the right of property : only relloring the demandant to that
ftate or fituation, in which he was (or by law ought to have
been) before the difpofleflion committed. But this without
any prejudice to the right of ownerlhip ; for, if the difpoflef-
for has any legal claim, he may afterwards exert it, notwith-
ftanding a recovery againft him in thefe poiTcffbry actions.
Only the law will not fuffer him to be his ovin judge, and
either take or maintain pofleflion of the lands, until he hath
recovered them by legal means" : rather prefuming the right
to have accompanied the antient feifin, than to refide in one
who had no fuch evidence in his favour.
1. The firft of thefe poflefllbry remedies is by -writ of entry j
which is that which difproves the title of the tenant or poflTef-
for, by fliewing the unlawful means by which he entered or
continues poflefhon ". The writ is direted to the flierifF,
requiring him to '* command the tenant of the land that he
** render (in l^ax'my praecipe quod reddat J to the demandant the
*< land in queftion, which he claims to be his right and in-
** heritance ; and into which, as he faith, the faid tenant had
** not entry but by (or after) a difllifin, intrufion, or the like,
*< made to the faid demandant, within the time limited by
* law for fuch adlions : or that upon refufal he do appear in
'* court on fuch a day, to fliew wherefore he hath not done
* it P." This is the original procefs, the praecipe^
upon which all the reft of the fuit is grounded : wherein
it appears, that the tenant is required, cither to'deUver
Mirr. C.4. 24. P See Tol. II. append. N V. i/
* Fioch.L. 161.
feifin
i8i Private Book III.
feifin of the lands, or to (hew caufe why he will not. This
Caufe may be either a denial of the fa6l, of having entered by
or under fuch means as arc fuggefted, or a juftification of his
entry by reafon of title in himfelf or in thofe under whom he
makes claim : whereupon the pofTeffion of the land is award-
ed to him who produces the cleareft right to poflefs it.
In our antient books we find frequent mention of the de-
grees wxihin which writs of entry are brought. If they be
brought againfl the party himfelf that did the wrong, then
they only charge the tenant himfelf with the Injury ; " non
** habuk ingrejfum nifi per intruftonem quam ipfe fecit :" But
if the intruder, difleifor, or the like, has made any alienation
of the land to a third perfon, or it has defcended to his heir,
that citcumftance muft be alleged in the writ, for the aftion
muft always be brought againft the tenant of the land ; and
the defect of his pofleflbry title, whether arifing from his
own wrong or that of thofe under whom he claims, muft
be fet forth. One fuch alienation or defcent makes the
firft 'I degree, which is called the per, becaufe then the form
of a writ of entry is this i that the tenant had not entry
but i>y the original wrongdoer, who alienated the land, or
from whom it defcended, to him : '* non habuit ingrejfum
ni/i per Guilielmumy qui fe in itlud intriiftt^ et illud teuenti
* dimiftt ^" A fecond alienation or defcent makes another
degree called the per and cui ; becaufe the form of a writ of
entry, in that cafe, is, that the tenant had not entry, but
by or under a prior alienee, ta whom the intruder demifed
it ; " non habuit ingrejfum y niji per RicarduWy cui Guilielmus
" illud dimiftt t ?"'\A ^'^ ^^^"^ intru/tt ." Thefe degrees thus
ftatc the original wrong, and the title of the tenant who
claims under fuch wrong. If more than two degrees (that
is, two alienations or defcents) were pafi;, there lay no writ
of entry at the common law. For, as it was provided, for the
s Finch. L. z6z. Booth indeed (of the /j^r and cf. But the dift'ereace if
real afticasiji.) makes the firft degree immaterial,
to confjft in the original wrong done, Booth. i8i.
the fecond in the/w, and the tKrd b * Fincht L.Z63. F.NiB.203,204.
quietnefs
Ch. lo. Wrongs. 182
quietnefs of men's Inheritances, that no one, crcn though
he had the true right of pofleffion, (hould enter upon hina
who had the apparent right by defcent or otherwlfe, but he
was driven to his ivrit of entry to gain poiTeflion ; fo, after
more than two defcents or two conveyances, were pafled, the
demandant, even though he had the right both of pofleffion
and property, was not allowed this pojpjfory alion ; but was
driven to his writ of right, a long and final remedy, to punifh
his negleft in not fooner putting in his claim, while the de-
grees fubfifted, and for the ending of fuits, and quieting of
all controverfies '. But by the ftatute of Marlbridge,
52 Hen. III. c. 30. it was provided, that when the number
of alienations or defcents exceeded the ufual degrees, a new
writ (hould be al'owed without any mention of degrees at all.
And accordingly a new writ has been framed, called a writ
of entry in the po/i, which only alleges the injury of the
wrongdoer, without deducing all the intermediate title from
him to the tenant : ftating it in this manner j that the te-
nant had iK)t entry unlefs aftery or fubfequent to, the oufler
or injury done by the original difpofleflbr ; " tion habuit
** ingrejfum n'tft poft intruftonem quam Gui/ielmus itt illud
" fecit ;" and rightly concluding, that if the original title was
wrongful, all claims derived from tlience muft participate of
the fame wrong. Upon the latter of thefe writs it is (the
writ of entry fur dijfeifin in the pof) that the form of our
common recoveries of landed eftates v is ufually grounded ;
which, we may remember, were obferved in the preceding
volume " to be fictitious adlions brought againft the tenant
of the freehold (ufually called the tenant to the praecipe, or
writ of entry) in which by collufion the demandant recovers
the land.
This remedial Inftrument, of writ of entry, is applicable
to all the cafes of oufter before-mentioned, except that of dif-
continuance by tenant in tail, and fome peculiar fpecies of
deforcements. Such is that of deforcement of dower, by not
afligning any dower to the widow within the time limited by
2 Inft. 153. < Book n. ch. 21.
^ See book II. apptnd. N^V.
15 law;
183 Private Book llli
law ; for which fhe has her remedy by writ of doiver unde
nihil hahet^. But if (he be deforced of part only of her
dower, fhe cannot then fay that nihil habet; and therefore fhe
may have recourfe to another a(Slion, by writ of right of
doiver: which is a more general remedy, extending either to
part or the whole -, and is (with regard to her claim) of the
fame nature as the grand writ of right, whereof we fliall pre-
fently fpeak, is with regard to claims in fee-fimple ^. On
the other hand, if the heir (being within age) or his guar-
dian, affign her more than (he ought to have, they may be
remedied by a writ of admeafurement of dower ^. But in ge-
neral the writ of entry is the univerfal remedy to recover pof-
fefllon, when wrongfully withheld from the owner. It were
therefore endlefs to recount all the feveral divifions of writs of
entry, which the different circumftances of the refpeftive de-
mandants may require, and which are furniftied by the laws
of England^: being plainly and clearly chalked out in that
mod antient and highly venerable collection of legal forms,
the regijlrum omnium hrevium, or regifter of fuch writs as arc
fuable out of the king's courts, upon which Fitzherbert's
natura brevium is a comment ; and in which every man who
* F. N. B. 147. aliened her eftate, 4. The writ<i(/w-
" Ibid. 1 6. tnunem legem t (J^iJ. 207.) for the revere
y F. N. B. 148. Finch. L. 314. iioner, after the alienation and death of
Sit. Wefttti. I. 13 Ed. I. c. 7. the particular tenant for life. 5. The
* See Bradon. /. 4. tr, 7. c. 6. wms in cafu frovifo zrni in covjimili caju :
4- Britton. c. 114. fol.264. The ('/^ii^. 205,206.) which lay not aifccw-
moft ufual were, i. The writs of entry munem legem, but arc given by ftat.GIoc.
Jur diiifin, and o( intrujion : (F. N. B. 6 Edw. I. c.7. andWeftm-a. 13 Edw.
191.203.1 which are brought to remedy J. c. 24. for the reverfioner after the
either of thofefpecies of oufter. 2. The arenation, but dur!ng the life, of the
writs oidumfuit infra attatem, and dum tenant in dower or other tenant for life.
fuitnon compos mcn:is: (Ibid. igz. 202.) 6. The writ ad termir.um qui fraetcriit :
which lie for a perfon offuU age, or cne (Ibid. 201.) for the reverfioner, wheri
who hath recovered his underftanding, the pofleffion is withheld by the leflee
after having (when under age or infane) or a ftranger, after the determination
aliened his lands; or for the heirs of of a leafe for years. 7. The writ
fuch alienor. 3, The writs of cui in cauja matrimonii fraelocutii:( Ibid. zo^,)
vita, and cuiantedivortir.m: (Ibid. tg^. for a woman who giveth land to a
204.) for a woman, when a widow or man in fee or for life, to the intent
divorced, whofe hulband during the co- that he way marry her, and he doth
irerture (cuiin vita fua, vel cui ante di- nnt. And the like in cafe of other dc-
vtrliuaif ij>fa antradieere nenpotuit) bath forcements.
is
Ch. lo. Wrongs. 184
is injured will be fure to find a method of relief, exactly
adapted to his own cafe, defcribed in the compafs of a fc^
lines, and yet without the omiffion of any material circum-
ftance. So that the wife and equitable provifion of the fta-
tute "Weftm. 2. 13 Edw. 1. c. 24. for framing new writs
when wanted, is almoft rendered ufelefs by the very great
perfeclion of the antient forms. And indeed I know not
whether it is a greater credit to our laws, to have fuch a
provifion contained in them, or not to have occafion, or at
lead very rarely, to ufc it*
In the times of our Saxon anceftors, the right of poilcf-
fion fee'ms only to have been recoverable by writ of entry ^ ;
which was then ufually brought in the county court. And
it is to be obferved, that the prx)ceedings in thefe alions
were not then fo tedious, when the courts were held, and
procefs iffued from and was returnable therein at the end of
every three weeks, as they became after the conqueft, when
all caufes were drawn into the king's courts, and procefs
iflued only from term to term ; which was found exceeding
dilatory, being at lead four times as flow as the other. And
hence a new remedy was invented in many cafes, to do juf-
tice to the people, and to determine the pofleffion in the pro-
per counties, and yet by the king's judges. This was the
remedy by o^^, which is called by llatute Weftm. 2.
13 Edw. I. c. ii\. fejlinum retnedium, in comparifon with
that by a writ of entry ; it not admitting of many dilatory
pleas and proceedings, to which other real actions are fub-
jed ".
1. The writ of ajjlfe is faid to have been invented by
Glanvil, chief juftice to Henry the fecond''; and, if fo, it
fcems to owe it's introdu(Slion to the parliament held at
Northampton, in the twenty-fecond year of that prince's
reign ; when juftices in eyre were appointed to go round the
kingdom in order to take thefe aflifes : and the aflifes them-
felvcs (particularly thofe of mert d'ancejlor and ftovel dijfeifm)
Gilb. Ten. 42. Mirror, c. 2. 25.
* Boocbi ai2.
were
185 Private Book III*
were clearly pointed out and defcribed ^. As a writ of entry
is a real alion, which d'lfproves the title of the tenant by
fhewlng the unlawful commencement of his pofleflTiGn ; fo an
aflife is a real aftion, which proves the title of the demandant
merely by (hewing his, or his anceftor*s, pofleffion ' : and
thefe two remedies are in all other refpets fo totally alike,
that a judgment or recovery in one is a bar againft the other ;
fo that when a man's pofleffion is once eftablilhed by either
of thefe poflefibry aftlons, it can never be difturbed by the
fame antagonift in any other of them. The word ajfife is
derived by fir Edward Coke ^ from the Latin ajjideoy to (it
together; and it fignifies, originally, the jury who try the
caufe, and fit together for that purpofe. By a figure it is
now made to fignify the court or jurifdil:ion, which fum-
mons this jury together by a commi(rion of affife, or adajjifas
capiendas ; and hence the judicial afTemblies held by the
king's commilTion in every county, as well to take thefe writs
of affife, as to try caufes at nifiprhiSy are termed in common
fpeech^the ajjlfes. By another fomewhat fimilar figure, the
name of alhfe is alfo applied to this aflion, for recovering
po(reffion of lands : for the reafon, faith Littleton 2, why
fuch writs at the beginning were called affife;;, was, for that
in thefe writs the (herifF is ordered to fummon a jury, or
affife ; which is not expreffed in any other original writ ".
This remedy, by writ of affife, is only applicable to two
fpecies of injury by oufter, viz. abatement j and a recent or
novel difetfin. If the abatement happened- upon the death of
the demandant's father or mother, brother or fifter, uncle or
aunt, nephev/ ot niece, the remedy is by an affife of mart
^ancejiory or the death of one's anceftor. This writ diredi
* ^ 9. 5J domtnui ffod'i negat haeredi- a tempore quo dominus rex venit in An--
lut defurEli jaifitiam ejufdem feodi, jujl'i- gliam froxime pcft facem faBam inter
tiar'ti domini regUfaciant mde fieri recog- ipjum et regemfiitumjuum, (Spelm.CedL
vitionem fer xU legales homines, qualemjai- 330')
Jinam defunSiuiindehabuitf die qua fuit <= Finch. L> 284.
vi-vus etmortuus; etfficutrecogmtumfu' ' ilnft. 153.
irtt, ita baeredibui ejui rejlituant, 10. ^ ^ jj^.
y^fiiliariidcmm regis faciant fieri recog- * Co. Litt. 159.
futtemm de dljfalfimi faiiiifuper affifam,
the
Ch. lo. Wrongs. iZ6
the (heriff to fummon a jury or afTife, who fhall view the land
in queftlon, and recognize whether fuch anceftor were feifed
thereof on the day of his death, and whether the demandant
be the next heir ^ : foon after which, the judges come down
by the king's commiflton to take the recognition of affife :
when, if thefe points are found in the affirmative, the law im-
mediately transfers the pofleffion from the tenant to the de-
mandant. If the abatement happened on the death of one's
grandfather or grandmother, then an aflife of mort d'ancejlcr
no longer lies, but a writ of ayUy or de avo : if on the death
of the great grandfather or great grandmother, then a writ
of befayUy or de proavo : but if it amounts onl? degree higher,
to the tre/ayle, or grandfather's grandfather, or if the abate-
ment happened upon the death of any collateral relation, other
than thofe before-mentioned, the writ is called a writ of
coftnage, or de confanguineo ^. And the fame points (hall be
inquired of in all thefe alions ancejlrel, as in an aflife of
mort d^ancejior : they being of the very fame nature ' : though
they differ in this point of form, that thefe ancejlrel writs
(like all other writs o^ praecipe) exprefsly aflert a title in the
demandant, (vtz. the feifin of the anceftor at his death, and
his own right of Inheritance.) the aflife aiTerts nothing diredlly,
but only prays an inquiry whether thofe points be fo "". There
is alfo another anceftrel writ, denominated a nuper ohi'tty to
cflabllfli an equal divifion of the land in queftion, where on
the death of an ancefl:or, who has feveral heirs, one enters and
holds the others out of pofl'eflion ". But a man is not allow-
ed to have any of thefe actions anceftrel for an abatement
confequent on the death of any collateral relation, beyond
the fourth degree ; though in the lineal afceiit he may pro-
ceed ad infinilum p. For there muft be fome boundary ; elfe
the privilege would be univerfal, which is abfurd : and there-
fore the law pays no regard to the pofl'eflion of a collateral
anceftor, who was no nearer than the fifth degree.
F. N. B. 195. Finch. L. ago. "F. N.B. 197. Finch. L. 293.
* Finch. L. 66, 467. Hale on F. N, B. 221.
' Sut. Wertnti.a. 13 Edw. I, c. 10. f Fitih. Abr. t\t. cofmag:. 15.
a loft. 399,
Vol. III. P It
iSy Private Booic III.
It was always held to be law i, that where lands were de-
vifable in a man's lad will by the cuftom of the place, there
an aflifc of mort d^aiicejlor did not lie. For, where land*
were fo devifable, the right of pofleflion could never be deter-
mined by a procefs, which inquired only of thefe two points,
the feifm of the anceflor, and the heirfliip of the demandant.
And hence it may be reafonable to conclude, that when the
ftatute of wills, 32 Hen. VIII. c. i. made all focage land
devifable, an affife of mort d'ancejlor no longer could be
brought of lands held in focage * ; and that now, fince the
ftatute 12 Car. II. c. 24. (which converts all tenures, a few
only excepted, %nto free and common focage) no aflife of
mort d'ancejlor can be brougiit of any lands in the kingdom ;
but that, in cafe of abatements, recourfc mud be properly
had to the writs of entry.
An aflife of novel (or recent) 'dijfelfsn is an aftlon of the
fame nature with the alTife of mort tTauceJior before-men-
tioned, in that herein the demandant's poffeffion mud be
ihewn. But it differs confiderably in other points : particu-
larly in that it recites a complaint by the demandant of the
diffeifin committed, in terms of direct averment : whereupon
the fheriffis commanded to refeife the land and all the chattels
thereon, and keep the fame in his cudody till the arrival of
the judices of aflife (which in fact hath been ufually omit-
ted*} i and in the mean time to fumraon a jury to view the
premifes, and make recognition of the aflTife before' the juf-
tices *. At which time the tenant may plead either the ge-
neral iflucs nul tort, nul dijfeifmy or any fpecial plea. And
if, upon the general ifliie, the recognitors find an aftual feifin
in the demandant, and his fubfequent difleifin by the prefent
tenant; he flball have judgment to recover his feifin, and
damages for the injury fudained : being the only cafe in
which damages were recoverable in any poffeflory alion at
the comnwn law " ; the tenant being in all other cafes al-
lowed to retain the intermediate profits of the land, to enable
1 Bradon, /. 4. de aif. mortis antecej- * BootS. 211. Brat. 4, i. 19, 7.
jirij. f. 13. 3. F.N. IJ. 196. 'F.N.B. 177.
' St 1 Lton. 267. " Brafl. 187. Stat. Marlbr. c. ?,
him
Ch. 10. Wrong s.' i8S
him to perform the feodal fervlces. But cods and damages
were annexed to many other poflefTory actions by the ila-
tutes of Marlberge, 52 Hen. III. c. 16. and of Glocefter,
6 dw. I. c. I. And to prevent frequent and vexatious dif-
feifins, it is enaled by the ftatute of Merton, 20 Hen. III.
c. 3. that if a perfon difleifed recover feifin of the land
again by affife of tiovel dijfeifttij and be again dilTeifcd of the
fame tenements by the fame difleifor, he (hall have a writ
oi re-dijeifm i and, if he recover therein, the re-difleifor
Ihall be imprifoned ; and, by the ftatute of Marlberge,
52 Hen. III. c. 8. (hall alfo pay a (ine to the king: to
which the (latute Weftm. 2. 13 Edw. I. c. 26. hath fu-
peradded double damages to the party aggrieved. In like
manner, by the fame ftatute of Alerton, when any lands
or tenements are recovered by afTife of mart d'ancejiory or
other jury, or any judgment of the court, if the party be
afterwards difleifed by the fame perfon againft whom judg-
ment was obtained, he flaall have a writ oi pojl-dijfeijm againft
him J which fubjedls the poftj-difleifor to the fame penalties
as a re-difleifor. The reafon of all which, as given by Gr
Edward Coke *, is becaufe fuch proceeding is a contempt o
the king's courts, and in defpite of the law ; or, as Bradlon
more fully exprefTes it ", " talis qui ita conviEius fuerit^ du-
" pHciier delinquit contra regetn : quia facit dijfeiftnam et ro"
** beriam contra pacem fuam ; et etiam aufu temerario irrita
** facit eaj quae in curia domiui regis rite acta funt : et propter
** duplex deliclum merito fujlinere debet poenam duplicatam."
In all thefe pofTeflbry alions there is a time of limitation
fettled, beyond which no man fliall avail himfelf of the pof-
fcfhon of himfelf or his anceftors, or take advantage of the
wrongful poflTcfllon of his adverfary. For, if he be negligent
for a long and unreafonable time, the law refufes afterwards
to lend him any afhftance, to recover the pofle{hon merely ;
both to punifh his negledV, (nam leges vigilantibus^ non dor'
7nientihusy fubveniunty) and alfo becaufe it is prefumed that
the fuppofed wrongdoer has in fuch a length of time procured
a legal title, otherwife he would fooner have been fued. Tl\is
* aloft. 83, 84. * /. 4. f. 49.
P % time
i$9 Private Book III.
time of limitation by the ftatute of Merton, 20 Hen. III.
c. 8. and Weftm. i. 3 Edw. I. c. 39. was fucceflively dated
from particular aeras, viz. from the return of king John
from Ireland, and from the coronation, i^c. of king Henry
the third. But this date of limitation continued fo long un-
altered, that it became indeed no limitation at all : it bein-i
above three hundred years from Henry the third's coronation
to the year 1^40, when the prefent ftatute of limitations ^ was
made. This, inftead of limiting adions from the date of a
particular event, as before, which in procefs of years grew ab-
furd, took another and more direct courfe, which might en-
dure for ever ; by limiting a certain period, as fifty years for
lands, and the like period ^ for cuftomary and prefcriptive
rents, fuits, and fervices, (for there is no time of limitation
upon rents created by deed, or referved on a particular eftate%)
and enabling that no perfon (hould bring any pofTeflbry adlion,
to recover pofTeffion thereof merely upon the feifin, or dif-
poffeflion, of his anccftors, beyond fuch certain period. But
this does not extend to fervices, which by common poffibility
may not happen to become due more than once in the lord's
or tenant's life ; as fealty, and the like ''. And all writs,
grounded upon the pofleffion of the demandant himfelf, are
directed to be fued out within thirty years after the difleifin
complained of; for if it be an older date, it can with no pro-
priety be called a frelh, recent, or novel dijjeifin ; which name
fir Edward Coke informs us was originally given to this pro-
ceeding, becaufe the difleifin muft have been fince the laft eyre
or circuit of the juftices, which happened once in feven years,
otherwife the action was gone ". And we may obferve '', that
the limitation, prefcribed by Henry the fecond at the firft in-
ftitution of the affife of novel dijfeifm^ was from his own re-
turn into England after the peace made between him and the
young king his fon \ which was but the year before.
T 31 Hen. Vllf, c. 2, fubfequentwTiters have followed, make
So Berthelet's original edition of the it on\j forty years for rents, fife.
ftatute, ^. 23. 1 540 : and Cay's, Pick. 8 Rep. 65.
ering's, and Ruffhead's editions, exa- '' Co, l-itt. 115.
mined with the record. RaftelPs and i Inft. 153. Booth. 210.
ether intermediate editions, which fir ^ See pag. 184.
Edwatd Ckc (alnll, 95.) and other -
I What
Ch. 10. ' Wrongs. t^O
What has been here obfervcd may throw fome light on
the dodlrlne of remitter^ which we fpoke of in the fecond
chapter of this book , and which, we may remember, was,
where one who hath right to lands, but is out of pofleffion,
hath afterwards the freehold caft upon him by fome fubfe-
quent defedlive title, and enters by virtue of that title. In
this cafe the law remits him to his antient and more certain
right, and by an equitable fidlion fuppofes him to have gained
pofleflion in confequence, and by virtue thereof : and tl)is
becaufe he cannot poflibly obtain judgment at law to be re-
ftored to his prior right, fince he is himfelf the tenant of the
land, and therefore hath nobody againft whom to bring his
alion. This determination of the law might feem fuper-
fluous to an hafty obferver ; who perhaps would imagine,
that fince the tenant hath now both the right and alfo the
pofleflion, it little fignifies by what means fuch pofl^eflion (hall
be faid to be rained. But the wifdom of our antient law de-
termined nothing in vain. As the tenant's pofleflion was
gained by a defeftive title, it was liable to be overturned by
{hewing that defeft in a writ of entry ; and then he muft
have been driven to his writ of right, to recover his jull in-
heritance : which would have been doubly hard, becaufe,
during the time he was himfelf tenant, he could not ellabliflj
his prior title by any pofl'eflbry adtion. The law therefore
remits him to his prior title, or puts him in the fame condi-
tion as if he had recovered the land by writ of entry. With-
out the remitter, he would have had jus^ et fe'ifmam^ fepa-
rate ; a good right, but a bad pofl"eflion : now, by the re-
mitter, he hath the mofl: perfedl of all titles, juris et feifinae
csrijtin^ionem.
III. By thefe feveral pofl'eflbry remedies the right of pof-
feflipn may be reftored to him, that is uiijuftly deprived
thereof. But the right q{ pojftjfion (though it carries with it
a ft^rong prefumption) is not always conclufive evidence of
the right oi prcperty^ which may ftill fubfifl: in another man.
For, as one man may have the pojfejfton^ and another the right
"J pcjfdporif which is recovered by thefe pofl'e^bry actions ; fo
P 3 one
19^ Private Book III.
one man may have the right of pojfejfiony and fo not be liable
to evicSlion by any pofleflbry aHon, and another may have the
right of property^ which cannot be otherwife alTerted than by
the great and final remedy of a writ of right, or fuch corrc-
fpondent writs as are in the nature of a writ of right.
This happens principally in four cafes : i. Upon difcon-
tlnuance by the alienation of tenant in tail : whereby he, who
had the right of poflefiion, hath transferred it to the alienee ;
and therefore hisifiue, or thofe in remainder or reverfion,
ihall not be allowed to recover by virtue jof that pofTcfBon,
which the tenant hath fo voluntarily transferred. 2, 3. In cafe
of judgment given againft either party, whether by his own
default, or upon trial of the merits, in any pofleflbry adlion :
for fuch judgment, if obtained by him who hath not the true
ownerfhip, is held to be a fpecies of deforcement , which
however binds the right of pofl'effion, and fufFers it not to
be ever again difputed, unlefs the right of property be alfo
proved. 4. In cafe the demandant, who claims the right,
is barred from thefe pofl^eflbry atlions by length of time and
the (latute of limitations before-mentioned : for an undifturb-
ed pofleflion, for fifty years, ought not to be devefted by any
thing, but a very clear proof of the abfolute right of propriety.
In thefe four cafes the law applies the remedial inftrument of
either the writ of right itfelf, or fuch other writs, as are fai4
to be of the fame nature.
I. Akd firll, upon an alienation by tenant in tail, whereby
the eftate-tail is difcontinued, and the remainder or reverfion
is by failure of the particular eftate difplaced, and turned
into a mere right, the remedy is by adlion oi formedon (fe-
cundum forn:r.m dcni,) which is in the nature of a writ o
right*, and is the highefl: alion that tenant in tail can have^
For he cannot have an abfolute writ of right, ^yhich is confined
only to fuch as claim in fee-fimple : and for that rcafon this
writ o{ formedcn was granted hiiji by the ftatute de donis or
* Finch. L. 167. ' Co. Litt. 316.
Wcftm,
Ch. 10. Wrongs. 191
Wefln). 2. 13 Edw. I. c. i. which is therefore emphati-
cally called his writ of right ^. This writ is diftinguiflied
into three fpecies ; a formedon in the dejcendery in the re-
ttiaiftdery and in the reverter, A writ of formedon in the
defcender lieth where a gift in tail is made, and the tenant in
tail alienes the lands entailed, or is difleifed of them, and
dies ; in this cafe the heir in tail fiiall have this writ of
formedon in the defcender^ to recover thefe lands fo given in
tail againfl: him who is then the a(^ual tenant of the free-
hold *. In which atlion the demandant is bound to (late the
manner and form of the gift in tail, and to prove himfelf heir
fecitndurn formam doni. h. formedon in the remainder lieth,
where a man giveth lands to another for life or in tail,
with remainder to a third perfon in tail or in fee j and he
who hath the particular eftate dieth, without ifTue inherit-
able, and a ftranger intrudes upon him in remainder, and keeps
him out of pofieflion*. In this cafe the remamder-man fhall
have his writ oi formedon in the remainder ^ wherein the whole
form of the gift is ftated, and the happening of the event
upon which the remainder depended. This writ is not given
in exprcfs words by the ftatute de donis -, but is founded upon
the equity of the ftatute, and upon this maxim in law, that
if any one hath a right to the land, he ought alfo to have
an action to recover it. A formedon in the reverter lieth
where there is a gift in tail, and afterwards by the death of
the donee or his heirs without iflue of his body the reverfion
falls in upon the donor, his heirs or affigns : in fuch cafe
the reverfioner fliall have this v.'rit to recover the lands,
wherein he fhall fuggeft the gift, his own title to the reverfion
minutely derived from the donor, and the failure of iflue
upon which his reverfion takes place ^^ This lay at common
law, before the ftatute' de donisy if the donee aliened before
he had performed the condition of the gift, by having iflue,
and afterwards died without any'. The time of limitation in
zfrmedon by ftatute 21 Jac. I. c. 16, is twenty years ; within
F. N. B. 255. " IbU. zig. 8 Rep. 88.
* Ikid.2ij,zit. > Finch. L. a(38.
11/ J. ztj.
P 4 which
193 Private Book III.
which fpace of time after his title accrues, the 4emandant
mufl bring his alion, or elfe is for ever barred.
1. In the fecond cafe ; if the owner? of ^ particular eftate,
as for life, in dower by the .curtefy, or in fee- tail, are barred
of the right of pofTeflion by a recovery had againft them,
through their default or non-appearance in a pofTeflbry alion^
they were abfolutely without any reniedy at the common law:
as a writ of right does not lie for any but fuch as claim to be
tenants of the fee-fimple. Therefore the (tatute Weftm. 2.
13 Edw. I. c. 4. gives a new writ for fuch perfons, after
their lands have been fo recovered againft them by default,
palled a quod ei deforceat ; which, though not llridlly a writ
of right, fo far partakes of the nature of one, as that it will
reftore the right to him, v/ho has been thus unwarily de-r
forced by his own default '". But in cafe the recovery were
not had by his own default, but upon defence in the inferior
pofleflTory ation, this ftill remains final with regard to thefe
particular eftates, as at the common law : and hence it is^
that a common recovery (on a writ of entry in the pojl ) had^
not by default of the tenant himfelf, (but after his defence
made and voucher of a third perfon to warranty,) by default
of fuch vouchee, is now the ufual bar to cut off an eftate-
tail ''.
3, 4. Thirdly, in cafe the right of pofleffion be barred
by a recovery upon the merits in a polfeflbry a(Stion, or laft-
|y, by the ftatute of limitations, a claimant in fee-fimple may
have a mere ivr'it of right; which is in it's nature the highest
writ in the law , and lieth only of an eftate in fee-fimple,
and not for him yi'ho hath a lefs eftate. This writ lies con-:
furrently with all other real a|tions, in whifth an eftate of fee-
fimple may be recovered ; and it alfo lies nft^r them, being
as it were an appeal to the mere right, when judgment hath
|)cen had as to the ppfleflTion in an inferior pofleflbry ac-
"> F. N.B. 155. J F.N. B, I,
See book II. ch. 21.
tion.
Ch. lo. Wrongs. 194
tion P. But though a writ of right may be brought, where
the demandant is entitled to the pofleflion, yet it rarely is ad-
vifable to be brought in fuch cafes ; as a more expeditious
and eafy remedy is had, without meddling with the property,
by proving the demandant's own, or his anceftor's, poflef-
fion, and their illegal oufter, in one of the pofleflbry adlions.
But, in cafe the right of pofleflion be loft by length of time,
or by judgment againft the true owner in one of thefc inferior
fuits, there is no other choice : this is then the only remedy
that can be had ; and it is of fo forcible a nature, that it over-
cornea all obftacles, and clears all objeOiions that may have
arifen to cloud and obfcure the title. And, after ifliie once
joined in a writ of right, the judgment is abfolutely final
fo that a recovery had in this adlion may be pleaded in bar
of any other claim or demand *.
The pure, proper, or mere writ of right lies only, we have
faid, to recover lands in fee-fimple, unjuftly withheld from
the true proprietor. But there are alfo fome other writs
which are faid to be in the nature ofz. writ of right, becaufe
their procefs and proceedings do moftly (though not entirely)
agree with the writ of right : but in fome of them the fee-
iimple is not demanded j and in others not land, but fome in-
corporeal hereditament. Some of thefe have been already
mentioned, zs x\\fwx\t o right of dower ^ oi formedon^ &C.
and the others will hereafter be taken notice of, under their
proper divifions. Nor is the mere writ of right alone, or
always, applicable to every cafe of a claim of lands in fee-
fimple : for if the lord's tenant in fee-fimple dies without heir,
whereby an efcheat accrues, the lord fliall have a writ of ef-
cheat % which is in the nature of a writ of right '. And if one
of two or more coparceners deforces the other, by ufurping
jthe fole pofleflion, the party aggrieved (hall have' a writ of
^ight, de ratiouabili parte * : which may be grounded on the
P F. N. B. I. 5. Booth. 135.
< Ibid. 6. Co. Litt. 158. F. N. B. 9.
' F. N. B. 143.
feifin
195 Private Book III,
fcifin of the anceftor at any time during his life ; whereas in
a nuper oh'iit (which is a poflefTory remedy "j he mufl; be feifed
at the time of his death. But, waiving thefe and other mi-
nute diftinlions, let us now return to the general writ of
right.
This writ ought to be firfl: brought In the "' court-baron
of the lord, of whom the lands are holden ; and then it is
open or patent : but if he holds no court, or hath waived his
right, remifit curiam fiiam. It may be brought in the king's
courts by writ of praecipe originally '^ ; and then it is a writ
of right clofe y, being direiSled to the fherifF and not the lord*.
Alfo, when one of the king's immediate tenants in capite is
deforced, his writ of right is called a writ o{ praecipe incapitCf
(the Improper ufe of which, as well as of the former praecipe
quia dominus remiftt curiam, fo as to oufl: the lord of his jurif-
dilion, is reftrained by magna carta^,) and, being diredled to
the fherifFand originally returnable in the king's courts, is alfo
a writ of right clofe , There is likewife a little writ of right
clofe, fecundum confuetudinem vianerii, which lies for the king's
tenants in antient demefne =, and others of a fimilar nature ^y
to try the right of their lands and tenements In the court
of the lord exciufively '. But the writ of right patent itfelf
may alfo at any time be removed into the county court, by
writ of tolt^, and from thence Into the king's court, by writ
of pone^ or recordari facias, at the fuggeftion of either party
that there is a delay or defeft of jufticc ''.
In the progrefs of this aftlon *, the demandant mufl: allege
fome feifin of the lands and tenements In himfelf, or elfe in
fome perfon under whom he claims, and then derive the right
See page i86. * Brafton. /. i. c. ii. /. 4. tr. i,
Append. N" I. 1. c. 9. f tr. 3. f. 13. 9. . Old Tenur.
* F. N. B. 2. Finch. L. 313. t. ttmr en Jocage. Old N. B. t. garde.
y Booth. 91. & t. brUfe dt rtElo claui F. N. B. 11.
Append. NI. .4. ' Append. N" I. z.
1. 14. * Ih'id. 4 3
> F. N. B. 5. F. N. B. 3, 4^
See book U. ch. 6. * Append, N" I. 5.
^ Kitchen, tit. copyhold.
from
Ch. 10. Wrong s. i^g
from the perfon fo feifed to himfelf; to wliich the tenant
may anfwer by denying the demandant's right, and averring
that he has more right to hold the lands than the demandant
has to demand them : and, this right of the tenant being
ihewn, it then puts the demandant upon the proof of his
title : in which if he fails, or if the tenant hath fliewn a
better, the demandant and his heirs are perpetually barred of
their claim ; but if he can make it appear that his right is
fuperior to the tenant's, he fhall recover the land againft the
tenant and his heirs for ever. But even this writ of right,
however fuperior to any other, cannot be fued out at any
diftance of time. For by the antient law no feifin could be
alleged by the demandant, but from the time of Henry the
firft*^-, by the ftatute of Merton, 20 Hen. III. c. 8. from
the time of Henry the fecond j by the ftatute of Weftm. i.
3 Edw. I. c. 39. from the time of Richard the firft ; and
now, by ftatute 32 Hen. VIII. c 2. feifin in a writ of right
fliall be within fixty years. So that the pofTefTion of lands
in fee-fimple uninterruptedly, for three-fcore years, is at
prefent a fufiicient title againft all the world ; and cannot
be impeached by any dormant claim whatfoever (i).
I HAVE now gone through the feveral fpecies of injury by
oufter and difpofleflion of the freehold, with the remedies
applicable to each. In confidering which I have been
unavoidably led to touch upon much obfolete and abftrufe
learning, as it lies intermixed with, and alone can explain the
* Gianv. /. 2. c. 3. Co. Litt. 114.
(1) This is far from being univerfally true; for an nninter
ruptcd poflefllon for fixty years will not create a title, where the
claimant or demandant had no right to enter within that time ; as
where an eftate in tail, for life, or for years, continues above fixty
years, flill the revcrfioner may enter and recover the eflate ; the
poffeffion muft be adverfe, and lord Coke fays, " it has been rc-
folved, that although a man has been out of pofleffion of land for
** fixty years, yet if his entry is not tolled he may enter and bring any
aftion of his own pofleffion; and if his entry be congcable, and he
*< enter, he may have an aftion of hie own pofleffion." 4 (7<7. 1 1. 3.
rcjifon
196 Private Book III.
Tcafoti of, thofe parts of the law which are now more generally
in ufe. For, without contemplating the whole fabric toge-
ther, it is impoflible to form any clear idea of the meaning
and connexion of thofe disjointed parts, which flill form a
confiderable branch of the modern law ; fuch as the do6trinc
of entries and remitter, the levying of fines, and the fuffer"
ing of common recoveries. Neither indeed is any confider-
able part of that, which I have felecked in this chapter from
among the venerable monuments of our anceftors, fo abfo*
r jg'j 1 lately antiquated as to be out ol force^ though the whole is
certainly out of ufe : there being but a very few inftances for
more than a century paft of profecuting any real aflion for
Jand by writ of entryy afftfe^formedov^ writ of rights or other-
wife. The forms are indeed preferved in the practice of
common recoveries; but they are forms and nothing elfe ;
for which the very clerks that pafs them are feldom capable
to aflign the reafon. But the title of lands is now ufually
tried in aflions of ejeEiment or trejpnfs \ of which in the fol-
lowing chapters.
Ch. II. Wrongs. I9
CHAPTER THE ELEVENTH,
OF DISPOSSESSION, or OUSTER,
OF CHATTELS REAL.
HAVING itt the preceding chapter confidered with
fomc attention the feveral fpecies of injury by difpof-
feflion or oufter of t\iQ freehold ^ together with the regular and
well-connedled fcheme of remedies by a(Slions real, which are
given to the fubjedl by the common law, either to recover the
pofleflion only, or elfe to recover at once the poffeffion, and
alfo to eftabiifli the right of property ; the method which {
there marked out leads me next toconfider injuries by oufter
of chattels real ; that is, by amoving the pofleflion of the te-
nant from an eftate by fliatute-merchant, ftatute-ftaple, re-
cognizance in the nature of it, or elegit ; or from an eUate
for years.
I. Ouster, or amotion of pofleflion, from eftates held by
ftatute, recognizance, or elegity is only liable to happen by
a fpecies of difl'eifin, or turning out of the legal proprietor,
before his eftate is determined by raifing the fum for which it
is given him in pledge. And for fuch oufter, though the eftate
be merely a chattel intereft, tlie owner fhall have the fame
remedy as for an injury to a freehold j viz. by aflifc of novel
dijfeifm \ But this depends upon the feveral ftatutes, which
?F. N. B. 178.
create
199 Private Book UL
create thefc refpe^tlve interefts >>, and which exprefsly provide
and allow this remedy in cafe of difpofleffion. Upon which
account it is that fir Edward Coke obferves', that thefc
tenants are faid to hold their eftates ut liberum tenementumy
until their debts be paid : becaufe by the flatutes they (hall
have an aflife, as tenants of the freehold fhall have ; and
in that refpel they have the fimilitude of a freehold <*.
II. As for oufter, or amotion of pofleffion, from an eftate
for years -, this happens only by a like kind of difleifin, ejec-
tion, or turning out, of the tenant from the occupation of
the land during the continuance of his term. For this injury
the law has provided him with two remedies, according to
the circumftances and fituatlon of the wrongdoer : the writ
oi ejeB'ione firmae ; which lies againft any one, the leflbr, re->
verfioner, remainder-man, or any flranger, who is himfelf
the wrongdoer and has committed the injury complained of :
and the writ of quare ejecit infra terminum ; which lies not
againft the wrongdoer or ejedlor himfelf, but his feoffee or
other perfon claiming under him. Thefe are mixed actions,
fomewhat between real and perfonal j for therein are two
things recovered, as well reftitution of the term of years, as
damages for the ouder or wrong.
I. A WRIT then of ejcfi'icnefirmae^ or alion of trefpafs in
ejeElmenty lieth where lands or tenements are left for a term of
years : and afterwards the leffor, reverfioner, remainder-man,
or any (Iranger, doth ejel: or ouil the leiTee of his term*. In
this cafe he {hall have his writ of ejcEtion to call the defend-
ant to anfwer for entering on the lands fo demifed to the
plaintiff for a term that is not yet expired, and ejel:ing him^
And by this writ the plaintiff Ihall recover back his term, or
the remainder of it, with damages.
[ 200 3 Since the difufe of real alions, this mixed proceeding is
Become the common method of trying the title to lands or
*> Stat. Weftm. 2. 13 Edw. I. c. i5. " See book II. ch. 10.
Stat, dc mcrcatonbus, 27 Edw. III. c. 9. ' F- N. B. 220.
Stat, 23 Hen. VIII. c. 5. 9, ' See appendix N 11. i.
i Inft. 4 J.
tenements.
Cli. II. Wrongs. 200
tenements. It may not therefore be improper to delineate,
with fome degree of minutenefs, it's hiflory, the manner of
it's procefs, and the principles whereon it is grounded.
"We have before feen^, that the writ of covenant, for breach
of the contra6t contained in the leafe for years, was antiently
the only fpecific remedy for recovering againft the leflbr a
term froin which he had ejeVed his leflee, together with da-
mages for the oufter. But if the leflee was ejeled by a ftran-
ger, claiming under a title fuperior > to that of the leflbr, or
by a grantee of the reverfion, (who might at any time by a
common recovery have deftroyed the term',) though the lefTec
might ftill maintain an alion of covenant againft the kflbr>
for non-performance of his contract or leafe, yet he could
not by any means recover the term itfclf. If the oufter was
committed by a mere ftranger, without any title to the land,
the leflbr might indeed by a real aftion recover poflefl~ion of the
freehold, but the lefl'ee had no other remedy againft the ejec-
tor but in damages, by a writ ol ejeclione jlrmae^ for the tref"
pafs committed in ejelihg him from his farm ^. But after-
wards, when the courts of equity began to oblige the eje(Stor
to make a fpecific reftitution of the land to the party immedi-
ately injured, the courts of law alfo adopted the fame method
of doing complete jullice ; and, in the profecution of a writ
of eje6lment, introduced a fpecies of remedy not warranted
by the original writ, nor prayed by the declaration, (which are
calculated for damages merely, and are filent as to any refti*
tution,) Wz. a judgment to recover the term, and a writ of
pofleflion thereupon'. This method feerps to have been fet-
See pap. 157. Belknap, la cimer ley eji, lou home efl cvfte
'F.N.B.J45. de Jon terme par ejirangcr, il avera ejcBi-
' See book II. ch. 9. cr.efrmae -verjus cejiy que !uy oujle j etjit
* P. f> Rlc II, Ej^nicr.c firmae nrfi J 'u cujle par Jvn lejj'or, brief e de covenant ^
jue n aifhn de trefpajs en Jon nature, et et fi par lejjee ou grantee de reverf.in
tt plaintiff ne recovera Jon teime que cji a brief e de ccvenant -verfus Jon lejjhr, et
vemr, nient plus que en trejpafs home re- countera efpecial count, Sec. (Fitx. abr,
ccvtra damaget pur trcjpaji nicnl fait, mes t. ejeil. frm. a,) See BraA. /, 4. tr,\.
a ftfr ; mes il convient a fuer par action c. 36,
de covenatit al cotnen law a recaverer fon ' ScC append. N"!!. ^.propefin,
terme i qued teta curia conciff.t, Et ptr
13 ' tied
201 P R t V A t E Book III.
tied as early as the reign of Edward IV"'; though it hath
been faid " to have firft begun under Henry VII, becaufe it
probably was then firft applied to it's prefent principal ufe,
that of trying the title to the land.
The better to apprehend the contrivance, M'hereby this
end is effecled, we muft recolleQ that the remedy by ejel-
ment is in it's original an a6lion brought by one who hath
a leafe for years, to repair the injury done him by difpoffef-
fion. In order therefore to convert it into a method of trying
titles to the freehold, it is firft neceflary that the claimant do
take pofTeflion of the lands, to empower him to conftitute a
leflee for years, that may be capable of receiving this injury of
difpofleflion. For it would be an offence, called in our law
maintenance y (of which in the next book;) to convey a title to
another, when the grantor is not in pofleflion of the land :
and indeed it was doubted at firft, whether this occafional
pofleflion, taken merely for the purpofe of conveying the title,
excufed the leflbr from the legal guilt of maintenance'^. When
therefore a perfon, who hath right of entry into lands, deter-
mines to acquire that pofl*efl"ion, which is wrongfully with,
held by the prefent tenant, he makes (as by law he may) a for-
mal entry on the premifes ; and being fo in the pofleflTion of the
foil, he there, upon the land, feals and delivers a leafe for
years to fome third perfon or leflee : and, having thus given
him entry, leaves him in pofl'efTion of the premifes. This
lefl'ee is to ftay upon the land, till the prior tenant, or he who
had the previous pofleflion, enters thereon afrefti and oufts
him; or till fome other perfon (either by accident or by
agreement beforehand) comes upon the land, and turns him
cut or ejedls him. For this injury the lefl'ee is entitled to his
a^lion of ejelment againft the tenant, or this caftial ejeElor^
which ever it was that oufted him, to recover back his term
and damages. But where this action is brought againft fuch
a cafual eje6lor as is before mentioned, and not againft the
"" "J Ediv jy. 6. Per Fairfax ; Ji JoU arere, dovquei tout in damages. (Bro.
heme fort ejtSlkne firmae, le plaintiff re. Abr, t, quare ejecit infra tcrminum, 6.)
eoverafon ttrme qui ejl arere, fihitn come " F. N, B, 220.
xn^art ejecit infra tcrminum j etffl r.ul o i Ch. Rep. append, 39.
very
Ch\ II. W R 6 N C S, iOl
very tenant in pofleflion, the court will not fuffer the tenant
to lofe his pofleffion without any opportunity to defend it.
Wherefore it is a (landing rule, that no plaintiff fhall pro-
ceed in ejectment to recover lands againft a cafual ejelor,.
without notice given to the tenant in pofleffion, (if any therb
be,) and making him a defendant if he pleafes. And, in
order to maintain the adlion, the plaintiff muft, in cafe of
any defence, make out four points before the court : viz. tiilt,
*eafe, entry^ and oujler. Firft, he muft (hew a good tide in
his lefTor, which brings the matter of right entirely before
the court j then, that the lefTor, being feifed or poffeflTed by
virtue of fuch title, did make him the leafe for the prefent
term ; thirdly, that he, the leffee, or plaintiff, did enter or
take pofTeffion in confequence of fuch leafe j and then,
laftly, that the defendant oujled or ejefted him. Whereupon
he (hall have judgment to recover his term and damages ;
and fliall, in confequence, have a writ of pojfejftotiy which
the fhcriff is to execute by delivering him the undifturbed
and peaceable pofTeflTion of his term.
- This Is the regular method of bringing an alIon or ejedi-
ment, in which the title of the lefTor comes collaterally and
incidentally before the court, in order to (hew the injury done
to the leffee by this oufter. This method muft be ftill con-
tinued in due form and ftridlncfs, fave only as to the notice
to the tenant, whenever the poffeffion is vacant, or there Is
no a6lual occupant of the premifes } and alfo in fome other
cafes. But, as much trouble and formality were found to
attend the actual making of the leafe^ entry y and oujler^ a new
and more eafy method of trying titles by writ of ejectment,
where there is any alual tenant or occupier of the premifes
in difpute, was invented fomewhat more than a century ago,
by the lord chief juftice Rolle ', who then fat in the court of
upper bench ; fo called during the exile of king Charles the
fccond. This new method entirely depends upon a ftring of r j^q^ >
legal filions : no alual leafe is made, no adlual entry by
the plaintiff, no adtual oufter by the defendant } but all are
Styl.pnft. Rej. !o8. {tdiu 1657.)
^ VoL.IIL q^ merely
^03 Private Book Ilf.
merely Ideal, for the folepurpofeof trying the title (i). To this
end, in the proceedings ' a leafe for a term of years is ftated
to have been made by him who claims title, to the plaintiff
who brings the action, as by John Rogers to Richard Smith,
which plaintiff ought to be fome real perfon, and not merely
an ideal fictitious one who hath no exillence, as is frequently
though unwarrantably pratifed ' : it is alfo ftated that Smith
the leflee entered ; and that the defendant William Stilesa
who is called the cafual ejelor^ oufted him ; for which oufter
he brings this action. As foon as this adlion is brought, and
the complaint fully ftated in the declaration'. Stiles, the
cafual ejector, or defendant, fends a written notice to the
tenant in pofTefTion of the lands, as George Saunders, in-
forming him of the ation brought by Richard Smith, and
tranfmitting him a copy of the declaration : withal afTuring
him that he. Stiles the defendant, has no title at all to the
premifes, and (hall make no defence 5 and therefore advifing
tlie tenant to appear in court and defend his own title : other-
wife he, the cafual ejedor, will fufFer judgment to be had
againft him ; and thereby the adtual tenant Saunders will
inevitably be turned out of pcfleffion f. On receipt of this
friendly caution, if the tenant in poflefifion does not within
a limited time apply to the court to be admitted a defendant
in the Acad of Stiles, he is fuppofed to have no right at all ;
and, upon judgment being had againft Stiles the cafual
< See appendix, N' II. l, a- * Append. N" II. z.
' 6 Alod. 309. f Hid*
( 1 ) An alual entry is neceffary to avoid a fine levied with pro-
clamations, and the dcmife laid in the ejectment muft be fubfe-
quent to the entry ; but that is the only cafe in which an aftual
entry is required. 2 Str. io?.6. ' Doug. 468. "i T. R. 741.
Unlefs it is an cjcftment brought to recover on a vacant pofleflion,
and not by a landlord upon a right of re-entry under the 4 Geo.
II. c. 23. ; in which cafe the leflbr or his attorney muft actually
fcal a leafe upon the premifes to the plaintiff, who muHhe cjedled by
a real perfon. See the mode of proceeding, 2 Cromp. Prac. 198.
ejector.
C?h. II* "W R N d si ^Oj
ejedor, Saunders the real tenant will be turned dut of pof-
fefCon by the fherilF.
But, if the tenant in pofleflion applies to be made a de-
fendant, it is allowed him upcn this condition ; that he enter
into a rule of court ' to confefs, at the trial of the caufe, three
ef the four requifites for the maintenance of the plaintiff's
a<flio!i ; viz. the leafe of Rogers the lefTor, the entry of Smith
the plaintiff, and his oij/?er by Saunders himfclf, now made L 204 j
the defendant inftead of Stiles : which requifites being wholly
filitious, fliould tlie defendant put the plaintiff to prove them
he mud of courfe be nonfuited for want of evidence; but by
fuch ftipolatcd confeffion of leafe^ r;//ry, and oujler^ the trial
will now ft and upon the merits of the title only (2). This done^
the declaration is altered by inferting the name of George
Saunders inftead of William Stiles> and the caufe goes down
to trial under the name of Smitli, (the plaintiff,) on tiie demife
of Rogers, (the leffor,) againft Saunders, the new defendant.
Append. Noil. 3,
(2) It has been determined, that no ejeftment can be main-
tained where the leffor of the plaintiff has not a legal right of
entry ; as the heir at law was barred from recovering in ejeft-
ment, where there was an unfatisfied term raifcd for the purpofe of
fecuring an auiiuity, tliough the heir claimed the cftatc fubjeft to
that charge. But a fatisfied term will be prefumed to be lurren-
dered ; and the courts will not permit the plaintiff in ejeftment to
be non-fuited by a term Handing out in the truftee of the leffon
3 r. R. 6()s. I T. R. 758.
In Doe on the demife of Bonvermdn v. Syhourn, 7 T. R. 2.
Lord Kcnyon declared that in all cafes where truftees ought
to convey to the beneficial owner, he would leave it to the jury
to prefume, where fuch a prefumption might reafonably be made,
that they had conveyed accordingly, in order to prevent a juft
title from being defeated by a matter of form. But if fuch a
prefumption cannot be made, he who has the equitable cftatc
only cannot recover ijj ejcdracnt. Jones v. Jonet, 'j T. R. 46.
C^a And
t04 Private Book III.
And therein the leflbr of the plaintiff Is bound to make out a
clear title, otherwife his filitious leffee cannot obtain judg-
ment to have pofleflion of the land for the term fuppofed to
be granted. But, if the leflbr makes out his title in a fatif-
fa<Sory manner, tlien judgment and a writ of pofiefllon fhall
go for Richard Smith the nominal plaintiff, who by this trial
has proved the right of John Rogers his fuppofed leffor. Yet,
to prevent fraudulent recoveries of the poffeflion, by collufion
with the tenant of the land, all tenants are obliged by ftatutc
1 1 Geo. II. c. 19. on pain of forfeiting three years rent, to
give notice to their landlords, when ferved with any decla-
ration in ejebtient : and any landlord may by leave of the
court be made a co-defendant to the aftlon, in cafe the te-
nant himfelf appears to it ; or, if he makes default, though
judgment muft be then figned againft the cafual ejelor, yet
execution fnall be ftayed, in cafe the landlord applies to be
made a defendant, and enters into the common rule ; a right,
which indeed the landlord had, long before the provifion of
this ftatutc ": in like manner as (previous to the flatute of
Weftm. 2. c. 3.) if in a real alion the tenant of the free-
hold made default, the remainder-man or reverfioner had a
right to come in and defend the poffeffion i left, if judgment
were had againft the tenant, the eftate of thofe behind fhould
be turned to a naked right ^(3). But if the new defendant?,
whether landlord or tenant, or both, after entering into the
common rule, fail to appear at the trial, and to confefsleafe,
entry, and oufter, the plaintiff" Smith muft indeed be there
r 20c T nonfuited, for want of proving thofe requlfites J but judgment
will in the end be entered againft the cafual ejedlor 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 fame fituation as if he never had appeared at
Styl, Prift. Reg. 108. 1 1 r. 265. '*' Brafton. /. 5. c. 10. 14.
y Mod. 70. Salk. 257. Burr. 1301.
(3) A dcvffee, although he baa never been in pofleffion, has
been permitted to defend as a landlord un'der this ilatute. 1 1
Geo. 2. c. 19. 4 T.R. !32.
6 alii
Ch. II. Wrongs. 20^'
all ; the confequence of which (we have feen) would have
been, that juHgmenc would have been entered for the plain-
tiff, and the fheriff, by virtue of a writ for that purpofe,
would have turned out Saunders, and delivered ^.ofTefllon to
Smith. The fame proccfs therefore as would have been had,
provided no conditional rule had beeisever made, muft now
be purfued as foon as the condition is broken (4).
TjJE damages recovered in thefe alions, though formerly
their only intent, are now ufually ((ince the title has been
(4) Where an ejeftment is defended merely to continue the
pofleflion of the premifes, and no defence is made at the trial, the
prafticc is for the crj^er of the court, firft, to call the defendant to
confefs leafe, entry, and oufter, and then the plaintiff, as in other
cafes of nonfuits, to come forth or he will lole his writ of n'lfi
fr'tus.
Though in this cafe the judgment is given againft the cafual
ejeftor, yet the cofls are taxed as in other cafes, and if the real
defendant refufes to pay them, the court will grant an attachment
againft him. Salh. 259.
In hke manner if there be a verdift for the defendant, or the
nominal plaintiff be nonfuited without the default of the defendant,
the defendant muft tax his cofts, and fue out a writ of execution
again ft the nominal plaintiff; and if, upon ferving the leffor of
the plaintiff with this writ and a copy of the rule to confefs leafe,
entr)', and oufter, the leffor of the plaintiff does not pay the cofts,
the court will grant an attachment againft liim. 2 Cromp. Brail.
214. In ejc<Slment the unfucctfsful party may re-try the fame
queftion as often as he pleafes without the leave of the court ; fo*"
by making a frefh demife to another nominal charafler, it be"
comes the adlion of a new plaintiff upon another right, and the
courts of law cannot any farther prevent this repetition of the
acliun, than by ordering the proceedings in one cjeftment to be
ftayed till the cofts of a former cjeftmcnt, though brought in
another court, be difcharged. 2 Bl. Rep. 1 158. Barnes, 133.
But a court of equity, in fomc inflances where there have been
fcver^l trials in ejectment for the fame premifes, though the
title was entirely legal, has granted a perpetual injunflion.
i. P. H'. Cp.
<^3 coat
105 P R I V A T Book III,
conGdercd as the principal queftion) very fmall and inade^
quate ; amounting commonly to one fliilling, or feme other
trivial fum. In order therefore to complete the remedy,
when the pofieflion has been long detained from him that had
the right to it, an adion of trjfpafs alfo lies, after a recovery
in cjel:ment, to recover the niefne profits which the tenant
in polTeffion has wron^ully received. Which alion may b^
brought in the name of either the nominal plaintiff in the
cjeftment, or his leflbr, againft the tenant in pofleflionr whe-
ther he be made party to the ejcftment, or fuffers judgment
to go by default*. In this cafe the judgment in tjedlment is
ponclufive evidence againft the defendant, for all profits which
have accrued fince the date of the demife ftated in the former
declaration of the plaimifF; but if the plaintiff fues for any
antecedent profits, the defendant may make a new defence(5).
Such is the modern way of obliquely bringing in quef-
tion the title to lands and tenements, in order to try it in this
. collateral manner; a method which is now univerfally adopt-
ed in almoft every cafe. It is founded on the fame principle
as the antient writs of aflize, being calculated to try the mere
pojfejfory title to an eftate ; and hath fucceeded to thofe real
acStions, as being infinitely more convenient for attaining the
f 206 1 ^"^ of juftice ; becaufe the form of the proceeding being en-
tirely filitious, it is wholly in the power of the court to direct
the application of that fidlion, foas to prevent fraud and chi-
cane, and evifcerate the very truth of the title. The writ of
ejc6lmentand it's nominal parties (as was refolved by all the
judges y) are ** judicially to be confidered as the fiditious
^* form of an aclion, really brought by the leflbr of the plainr
** tiff againft the tenant in pofTeffion : invented, under the
<* control and power of the court, for the advancement of
* Burr. 66S, ' Mich. 3a Geo. II. 4 Burr. 668,
(5) The defendant may plead the ftatute of limitations, and by
that means proteft himfclf from the payment of all mefnc profits,
except thofe which have accrued within the laft fix years. Bull.
juftic^
Ch. II, Wrongs. 206
** juftice in many refpcls ; and to force the parties to go to
** trial on the merits, without being intangled in the nicety
* of pleadings on cither fide."
But a writ of ejectment is not an adequate means to try
the title of all eftates; for on thofe things, whereon an entry
cannot in faft be made, no entry fliall be fuppofed by any
fitlion of the parties. Therefore an ejelment will not He of
an advowfon, a rent, a common, or other incorporeal heredita-
ment ' : except for tithes In the hands of lay appropriators, by
the exprefs purview of ftatute 32 Ken. VIII. c. 7. which
doctrine hath fince been extended by analogy to tithes in the
hands of the clergy * : nor will it He in fucb cafes, uhere the
entry of him that hath right is taken away by defcent, dif-
fcontinuancc, twenty years difpoffeflion, or otherwife.
This aftlon of ejectment is however rendered a very eafy
and expeditious remedy to landlords whofe tenants are in ar-
rear, by ilatute 4 Geo. II. c. 28. which enafts, that every
landlord, who hath by his leafe a right of re-entry in cafe of
non-payment of rent, when half a year's rent is due, and no
fufficient dillrefs is to be had, msy ferve a declaration in ejei-
ment on his tenant, or fix the fame upon fome notorious part
of the premifes, which fliall be valid without any formal
re-entry or previous demand of rent. And a recovery in fuch
cjeftment fhaH be final and conclufive, both in law and
equity, unlefs the rent and all cofts be paid or tendered
within fix calendar months afterwards (6),
2. The writ of quare ej'ecit infra tenmnum liethfhy the ZTi' [ 207 3
tlent law, where the wrongdoer or ejector is not Iiimfclf in
poflcilion of the lands, but another who claims under him.
As where a man leafeth lands to another for years, and, after
* Brownl. 129. Cro. Car. 492, Stra.54. Cro. Car. 30^, 2 Lord Rayni.789.
(6) Where there is a fufBcient diflrefs upon the premifes, the
landlord cannot maintain an ejectment upon his n'^ht of re-entry
for non-payment of rent, if he has not demanded the rent on the
very day on which It was due.
0^4 the
ao7 Private Book ML
the leflbr or reverfioncr entereth, and makcth a feoffment in
fee, or for life, of the fame lands to a ftranger : now the
leflee cannot bring a writ oi ejeBione'firmae or ejectment againft
the feoffee; becaufe he did not ejeft him, but the reverfioner:
neither can he have any fuch alion to recover his term againfl;
the reverfioner, who did ouft him; becaufe he is not now in
poffeflion. And upon that account this writ was devifed,
upon the equity of the ftatute Weftm. 2. c. 24. as in a cafe
where no adequate remedy was already provided ''. And the
alion is brought againfl the feoffee for deforcing, or keeping
out, the original leffee, during the continuance of his term;
and herein, as in the ejedlment, the plaintiff fliall recover fo
much of the term as remains ; and alfo fhall have alual da-,
mages for that portion of it whereof he has been unjuftly de-
prived. But fince the introduction of fiflitious oufters,
whereby the title may be tried againft any tenant in poffef-
fion, (by what means foeter he acquired it,) and the fubfe-
quent recovery of damages by action of trefpafs for mefne
profits, this aftion is fallen into difufe. '
F. N. B. 108.
Ch. 12. Wrongs. tot
CHAPTEIV THE TWELFTH.
OF TRESPASS.
IN the two preceding chapters we have confldered fuch
injuries to real property, as confifted in an oufter, or amo-
tion of the poffefTion. Thofe which remain to be difcufled
are fuch as may be offered to a man's real property without
any amotion from it.
The fecond fpecjes therefore of real injuries, or wrongs
that affeft a man's lands, tenements, or hereditaments, is that
of trefpafs. Trefpafs, in its largeft and mod extenfive fenfc,
(ignifies any tranfgrefrion or offence againft the law of nature,
of fociety, or of the country in which we live ; whether it re-
lates to a man's perfon, or his property. Therefore beating
another is a trefpafs ; for which (as we have formerly feen)
an adlion of trefpafs vi et armis in affault and battery will lie ;
taking or detaining a man's gcods are.refpelively trefpafles;
for which an adlion of trefpafs vi et armisj or on the cafe in
trover and converfion, is given by the law : fo alfo non-
performance of promifes or undertakings in a trefpafs, upon
which an action of trefpafs on the cafe in ajfumpfit is ground-
ed : and, in general, any misfeafance oradl.of one man,
whereby another is injurloufly treated or damnified, is a
tranfgreflion or trefpafs in its largeft fenfe -, for which wc
have already feen ^ that, whenever the acl itfelf is dirc<Slly,
and immediately injurious to the perfon orproperty of another,
and therefore neceflarily accompanied with fome force, an C 209 }
alion of trefpafs vi et armis will lie; but, if the injury is
only confequential, a fpecial alion of trefpafs on thecaft may
be breught ( i ). 1
^ 'See pag. 123.
( I ) The diftin^lions bcween alions of trefpafs c; tt armis for
sn immediate injury, and adlions of trefpafs upon the cafe for a
confe-
^Og ' Private Book III.
But in the limited and confined fenfe, in which we are at
prefent to confider it, it fignifies no more than an entry on
another man's ground without a lawful authority, and doing
fome damage, hov/ever inconfiderable, to his real property.
For the right of tneum and tuumy or property in lands, being
once eftablifhed, it follows as a neccffary confequence, that
this right muft be exclufive ; that is, that the owner niay re-
tain to himfelf the fole ufe and occupation of his foil : every
entry therefore thereon without the owner's leave, and cfpe-
cially if contrary to his exprefs order, is a trefpafs or tranf-
greflion. The Roman laws feem to have made a direft pro-
hibition neceflary, in order to conftitute this injury : ** qui alt-
** enum fundum ingreditur^ potejl a domino^ Jl is praeviderity
* prohiberi ne ingrediatur ^." But the law of England, jullly
*> Infl, 2. I. 12.
confequential damage, are frequently very delicate ; fee the fubjeft
much confidered in 2 Bl. Rep. 892, in a cafe where an aftion of
trefpafs 'vi et armis was brought againft. the defendant for throwing
a lighted fquib in a public market, which fell upon a ftall, the
owner of which, to defend himfelf and his goods, took it up, and
threw it to another part of the market, where it ftruck ttic
plaintiff and put out his eye.
The quedion was much difcuffed, whether the perfon injured
ought to have brought an adlion of trefpafs vi et armis, or an
aftion upon the ca& ; and one of the four judges ftrenuoufly con.
tended that It ought to have been an aftion upon the cafe. But
I fhould humbly conceive, that the queftion was more properly this,
viz. whether an aftion of trefpafs vi et armis lay againft the ori.
gmal or the intermediate thrower, or whether the a6l of the fecond
thrower was involuntary, (which feems to have been the opinioii
of the jury,) or wilful and mifchievous, and if fo, whether he alone
ought not to have been anfwrrable for the confequences. For if
A throws a ftone at B, which after it lies quietly at his foot, B takes
up and throws again at C, it is prefumed that C has his ation
againft B only ; but if it is thrown at B, and B, by warding it off
from himfelf, gives it a different direction,, in confequence of which
it ftrikes C, in that cafe, it is wholly the adl of A, and B ihuft be
confidered merely as an inanimate objeiSt, which may chance to
divert its courfe.
5 confidering
Ch. 12. Wrongs. 109
confidering that much inconvenience may happen to the
owner, before he has an opportunity to forbid the entry, ha
carried the point much farther, and has treated every entry
upon another's lands, (unlcfs by the owner's leave, or in
fome very particular cafes,) as an injury or wrong, for fatif-
facfliou of which an alion of trefpafs will lie ; but determines
the quantum of that fatisfalion, by confidering how far the
offence was wilful or inadvertent, and by eftimating the va-
lue of the actual damage fudained.
Every unwarrantable entry on another's foil the law en-
titles a trefpafs by breaking his clofe ; the words of the writ of
trefpafs commanding the defendant to (hew caufe quare clau-
funt queretitisf regit. For every man's land is in the eye of the
law inclofed and fet apart from his neighbour's': and that
either by a vifible and material fence, as one field is divided
from another by a hedge; or, by any ideal invifibie boundary,
cxifting only in the contemplation of law, as when one man's 210 7
land adjoins to another's in the fame field. And every fuch
entry or breach of a man's clofe carries neceflarily along with
it foine damage or other: for, if no other fpecial lofs can be
afligned, yet ftill the words of the writ itfelf fpecify one ge-
neral damage, vi%. the treading down and bruifing his
herbage '.
One mud have a property (e!flier abfolute or temporary)
in the foil, and actual pofiefiion by entry, to be able to main-
tain an adlion of trefpafs : or, at leaft, it is requifite that the
party have a leafe and pofleflion of the vefture and herbage of
the land **. Thus if a meadow be divided annually among
the parifliioners by lot, then, after each perfon's feveral por-
tion is allotted, they may be refpelivcly capable of maintain-
ing an action for the breach of their feveral clofes ^ : for they
have an exclufive interefl and freehold therein for the time.
But before entry and alual pofl'efTion, one cannot maintain
an allon of trefpafs, though he hath the freehold in law *".
And therefore an heir before entry cannot have this a^lioil
F. N, 3. 87, 88. Cro. Eliz. 421.
* Dytu 185. z Roll. Abr. 549. ' a Rol. Abr. 553.
againft
310
Private Book III*
againft an abator : though a dlflcifee rtlight have it againft the
dilTeifor, for the injury done by the dilleifm itfelf, at which
time the plaintiff was feifed of the land : but he cannot have
it for any al done after the difleifin, until he hath gained
poiTefTion 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 oijus pojlliminiiy fuppofes the freehold to have all
along continued in him s. Neither, by the common law,
in cafe of an intrufion or deforcement, could the party kept
out of poA'cfllon fue the wrongdoer by a mode of redrefs,
which was calculated merely for injuries committed againft the
land while in the pojjejjlon of the owner. But now by the ftar
tute 6 Ann. c. i8. if a guardian or truftee foir any infant, a
hulband feifed jure uxorisy or a perfon having any eftate or
[ 2 1 1 3 intereft determinable upon a life or lives, (hall, after the deter-
mination of their refpelive interefts, hold over and continue
in poflefllon of the lands or tenements, without the confent of
the perfon entitled thereto, they are adjudged to be trefpaffers ;
and any reverfioner or remainder-man, expedlant on any
life-eftate, may once in every year, by motion to the court
of chancery, procure the cejiuy que vie to be produced by the
tenant of the land, or may enter thereon in cafe of his refufal
or wilful negled. And by the ftatutes of 4 Geo. II. c 28.
and 1 1 Geo. II. c. 19. in cafe after the determination of any
term of life, lives, or years, any perfon ihall wilfully hold
over the fame, the leflbr or reverfioner is entitled to recover
by aftion of debt, either at the rate of double the annual va-
lue of the premifes, in cafe he himfelf hath demanded and
given notice in writing to the tenant to deliver the pofFeflionj
or clfe double the ufual rent, in cafe the notice of quitting
proceeds from the tenant himfelf, having power to determine
his leafe, and he afterwards neglefts to carry that notice into
due execution (2).
A MAN is anfwerable for not only his own trefpafs, but
that of his cattle alfo : for, if by his negligent keeping they
611 Rep. 5.
(2) Sec 2 vol. p. 15 1. n. 5.
ftray
Ch. 12. Wrong s, ait
ftray upon the land of another, (and much more if he permits,
or drives them on,) and they there tread down his neighbour's
herbage, and fpoil his corn or his trees, this is a trefpafs for
which the owner muft anfwer in damages. And the law give*
the party injured a double remedy in this cafe ; by permitting
him to diftrein the cattle thus damage feafant^ or doing da-
mage, till the owner (hall make him fatisfaftion ; or elfe by
leaving him to the common xtratAy in foro contentiofof by ac-
tion. And the a<Slion that lies in either of thefe cafes of
trefpafs committed upon another's land either by a man him-
felf or his cattle, is the action of trefpafs vi etarmis : whereby
a man is called upon to anfwer, quare vi et armis claufum ip'
Jius A. aptid B. fregiti et hlada ipfius A. ad valentiam centum
folidorum ibidem nuper crefcentia cum quibufdam averiis depajlus.
fuity conculcavit^ et confumpjtt^ t*fc. ^ ; for the law always cou-
ples the idea offeree with that of intrufion upon the property
of another. And herein, if any unwarrantable acl of the [ 212 ]
defendant or his beafts in coming upon the lands be proved,
it is an aft of trefpafs for which the plaintiff mull: recover
fome damages ; fuch however as the jury {hall think proper
to alTefs.
In trefpafles of a permanent nature, where the injury is
continually renewed, (as by fpoiling or confuming 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 alion with a
continuandoy) and the plaintiff ihall not be.compelied to bring
feparate anions for every day's feparate offence '. But where
the trefpafs is by one or feveral ats, each of which terminates
in itfelf, and being once done cannot be done again, it can-
not be laid with a coniinuando : yet if there be repeated afts of
trefpafs committed, (as cutting down a certain number of
trees,) they may be laid to be done, not continually, but at
divers days and tliiics within a given period ''
^<^;/7r. 94. " Salk. 638, 6j9. LoriRaym. Jjj.
' a Roll. Abr. 54$. Lord, Rayre. 7 Mqd. t5
In
112 Private Book IIL
In fome cafes trefpafs Is juftifiable j or, rather, entry on
another's land or houfe (hall not in thofe cafes be accounted
trefpafs: as if a man comes thither to demand or pay money,
there payable ; or to execute, in a legal manner, the procefs
of the law. Alfo a man may juftify entering into an inn or
public houfe, without the leave of the owner firft fpecially
afked ; becaufe when a man profefTes the keeping of fuch inn
or public houfe, he thereby gives a general licence to any
perfon to enter his doors. So a landlord may juftify entering
to diftrain for rent; a commoner to attend his cattle, com-
moning on another's land ; and a reverfioner, to fee if any
wafte be committed on the eftate , for the apparent neceflity
of the thing '. Alfo it hath been faid, that by the common
law and cullom of England the poor are allowed to enter
and glean upon another's ground after the harveft, without
213 ] being guilty of trefpafs"": which humane provifion feems bor-
rowed from theMofaical law" (3). In like manner the common
law warrants the hunting of ravenous bcafts of prey, as
badgers and foxes, in another man's land j becaufe the de-
' 8 Rep. 146. Levit. c. 19. v. 9. Si c. 23. t. 2S.
^ Giib. Ev. 253. luah per fats, Deut. i. 24. v. 19, ^t.
ch. 15. pa. 438.
(3 )Two aftions of trefpafs have beenbrought In the common pleas
againfl: gleaners, with an intent to try the general queftion, viz,
whether fuch a right exifted; in the firft, the defendant pleaded that
he being a poor, neccffitous, and Indigent perfon, entered the plain-
tiEps ciofe to glean ; in the fecond, the defendant's plea was as be-
fore, with the addition that he was an Inhabitant legally fettled
within the parlih : to the plea In each cafe there was a general de-
murrer. Mr. J Gould delivered a learned judgment In favour of
gleaning, but the other three judges were clearly of opinion that
this claim had no foundation In law ; that the only authority to
fupport It was an extrajudicial dltum of lord Hale ; that It was a
praftlqc incompatible with the exclufive enjoyment of property,
and was produ6tIve of vagrancy, and many mifchlevous confe-
^uences. i H. Bh Rep. 51.
ftroying
Ch. 12. Wrongs. at^
flroying fuch creatures is faid to be profitable to the publlc'(4).
But in cafes where a man mifdemeans himfelf, or makes an
ill ufe of the authority with which the law entrufts him, he
(hall be accounted a trefpaflcr ab initio p ; as if one comes
inta a tavern and will not go out in a reafonablc time, but
tarries there all night contrary to the, inclinations of the
owner ; this wrongful al (hall efFel and have relation back
even to his firft entry, and make the whole a trefpafs i. But a
bare non-feafance, as not paying for the wine he calls for,
will not make him a trefpafler ; for this is only a breach of
contraft, for which the taverner ihall have an a(5lion of debt
or ajjum^tt againft him ^ So if a landlord diftreined for rent,
and wilfully killed the diftrcfs, this by the common law made
him a trefpafler ah initio^ : and fo indeed would any pthei^
irregularity have done, till the ftatute ii Geo. II. c. 19.
which enafts, that no fubfequent irregularity of the landlord
ihall make his firft entry a trefpafs j but the party injured
(hall have a fpecial action of trefpafs or on the Caffe, for the
real fpecific injury fuftained, unlefs tender of amends hath
been made. But ftill, if a reverfioner, who enters on pre-
tence of feeing wafte, breaks the ho ufe, or (lays there all
night; or if the commoner who comes to tend his cattle, cuts
down a tree ; in thefe and fimilar cafes, the law judges that
he entered for this unlawful puvpofe, and therefore, as the
aft which demonftrates fuch his purpofe is a trefpafs, he (hall
be cfteemed a trefpafler ah initio '. So alfo in the cafe of
hunting the fox or the badger, a raan cannot juftify break-
ing the foil, and digging him out of his earth : for though
the law warrants the hunting of fuch noxious animals for the [ 214 ]
public good, yet it is held " that fuch things muft be done in
Cro. Jac. 3ai. Finch. L. 47.
Finch. L. 47. Cro. Jac. 148. ^8 Rep 146.
2 Roll. Abr. 561. Cro. Jac. 321.
" 8 Rep. 147. . .
(4) It has been determined in a late cafe, that It is lawful to
follow a fox with horfes and hounds over another's ground, if no
more damage be done than is neceflary for the deftruftion of the '
aaimal by fuch a purfuit. i 7*. i?. 338.
an
414 Private Book III.
an ordinary and ufual manner ; therefore, as there Is an or-
dinary courfe to kill them, viz. by hunting, the court held
that the digging for them was unlawful.
A MAN may alfo juftify in an action of trefpafs, on ac-
count of the freehold and right of entry being in himfelf ;
and this defence brings the title of the eftate in queftion.
This is therefore one of the ways devifed, fmce the difufe of
real alions, to try the property of eftates ; though it is not
fo ufual as that by ejeftment, becaufe that, being now a
mixed aftion, not only gives damages for the ejedlion, but
alfo pofieirion of the land : whereas in trefpafs, which is
merely a perfonal fuit, the right can be only afcertained, but
no poffeffion delivered ; nothing being recovered but damages
for the wrong committed.
In order to prevent trifling and vexatious alIons of tref-
pafs, as well as other perfonal adlions, it is (inter alia)
nated by ftatutes 43 Eliz. c. 6. and 22 & 23 Car. II.
c. 9. 136. that where the jury, who try an alion of tref-
pafs, give Icfs damages than forty (hillings, the plaintiff {hall
be allowed no more cofts than damages-, unlefs the judge
ihall certify under his hand that the freehold or title of the
land came chiefly in queftion. But this rule now admits of
two exceptions more, which have been made by fubfequent
ftatutes. One is by ftatute 8 & 9 W. III. c. 11. which
cnals, that in all anions of trefpafs, wherein it (hall appear
that the trefpafs was wilful and malicious, and it be fo certi-
fied by the judge, the plaintifi^fhall recover full cofts (5). Every
trefpafs is wilful^ where the defendant has notice, and is
efpecially forewarned not to come on the land ; as every tref-
pafs Is maliciotiSy though the damage may not amount to forty
(hillings, where the Intent of the defendant plainly appears to
r 21 r 1 be to harafs and diftrefs the plaintiff (6). The other exception
(5) The judge mufl; certify in open court after the trial, other-
wife the certificate is void. 2 Wllf. 2 1 .
(6) If a perfon has notice not to come or continue upon an-
Qtber's land, as if a fportfraan has notice or warning not to come
- ' . again,
Ch. 12. Wrongs. It^
is by flatute 4 & 5 W. & M. c. 23. which gives full cofts
agauift any inferior tradefnian, apprentice, or other diflb-
lute perfon, who is conviled of a trefpafs in hawking,
hunting, fifhing, or fowling upon another's land^ Upon
this flatute it has been adjudged, that if a perfon be aa
inferior tradefman, as a clothier for inftance, it matters
not what qualification he may have in point of eftate ; but,
if he be guilty of fuch trefpafs, he fhall be liable to pay full
cofts*'(7}.
"^ Lord Raym. 149.
again, or to go off, and he repeats or continues the trefpafs,
upon proof of this, the judges think themfelves bound to certify
that the trefpafs is wilful and malicious, and the plaintiff will in
Confequenee be entitled to full cofts. i E/p. 425.
It has been determined that the judge was bound to certify,
although the notice had been general to all perfons not to tref-
pafs upon the plaintiff's lands, and given four years before, and
although the defendant was unacquainted with tlie boundaries of
the plaintiff's eftate. 6T.R.11.
(7) The perfons defcribed in the 4 & 5 W, & M. c. 23. arc
fubjecl to pay full cofts, though the damages are under 40/., with-
out any certificate of the judge or previous notice from tlie party.
The words inferior tradefman are fo vague that the court 6
common pleas were divided In opinion, whether a perfon who
was a furgeon and apothecary came under that defcription.
2 IVils. 70.
It has been decided, that a gentleman's huntfman Is not a
diffolute perfon under this aft; and where the plaintiff ftates
the defendant in his declaration to be a diffolute perfon, or other
perfon mentioned in the aft, if he fhould not prove him fo at the
trial, ftill he may recover a vcrdid as in a common adion of tref
pafs. a Bl. Rep. 900.
Vol. III.
^1$ Private Book III.
CHAPTER THE THIRTEENTH.
OF NUSANCE.
A THIRD fpccies of real injuries to a man's lands and
tenements, is by nufaiice. Nufance, nocumentitmy or
annoyance, fignifies any thing that worketh hurt, inconveni-
ence, or damage. And nufa.nces are of two kinds; public or
common nufances, which affet the public, and are an annoy-
ance to all the king's fubjeds; for which reafon we muft refer
them to the clafs of public wrongs, or crimes and mifdemef-
nors : and private nufances, which are the objels of our
prefeht confideratlon, and may be defined, any thing done to
the hurt or annoyance of the lands, tenements, or heredita-
. ments of another*. "We will therefore, firft, mark out the
feveral kinds of nufances,'and then their refpedlive remedies.
I. In difcuQing the feveral kinds of nufances, we will con-
fider, firft, fuch nufances as may efiel a man's corporeal
hereditaments, and then thofe that may damage fuch as arc
incorporeal.
I. First, as to ^w^or^^ inheritances. If a man builds a
houfe fo clofe to mine that his roof overhangs my roof, and
throws the water off his roof upon mine, this is a nufance,
for which an al;ion will lie''. Likewife to eredl a houfe or
other building fo near to mine, that .it obftruds my antient
Finch. I.. i88. * f . N, B. 184.
lighU
Ch. 13. W R O N G Si 217
lights and windows is a nufance of a fimilar nature '. But
in this latter cafe it Is neceflary that the windows be antient:
that is, have fubfifted there a long time without iiiterAiption ;
otherwife there is no injurydone(i). For he hath as much right
to build a new edifice upon his ground, as I have upon mine :
fince every man may erect what he pleafes upon the upright
or perpendicular of his own foil, fo as not to prejudice what
has long been enjoyed by another; and it was my folly to
build fo near another's ground ''. Alfo, if a perfon keeps his
hogs, or other nolfome animals, fo near the houfe of another
that the flench of him incommodes him and makes the air
unwholefome(2), this is an injuriousnufance, asit tends todc-
prive him of the ufe and benefit of his houfe '. A like injury
is, if one's neighbour fets up and exercifes any offenfive trade;
as a tanner's, a tallowchandler's, or the like j for though thefe
are lawful and neceflary trades, yet they (hould be exercifed in
remote places ; for the rule is, ^^ ftc ute're iuo, ut alienum tion
* laedas ;" this therefore is an actionable nufance *". So that
the nufances which afFeft a man's divelling may be reduced to
thefe thtee : i . Overhanging it : which is alfo a fpecies of
trefpafs, for cujus ejlfoluin ejus eji ufque ad caelum : 2. Stopping
antient lights: and, 3. Corrupting the air with noifome fmells;
for light and air are two indifpenfable requifites to every dwell-
ing. But depriving one of a mere matter of pleafure, as of
a fine profpedl, by building a wall, or the like ; this, as ic
abridges nothing really convenient ornecefl'ary, is no injury
to the fufferer, and is therefore not an actionable nufance '=
9 Rep. 58. ' Cro. Cat. 510.
" Cro. Elii. 118. Salk. 459, 9 Rep. 58.
9 Rep. 58. .
( 1 ) The judges now hold, that lights will be confidered antient
to fupport this adtion, of which there has been an uninterrupted
enjoyment above twenty years.
(2) Lord Mansfield has faid, that " it Is not neceflary that the
** fmell (hould be unwholefome; it Is enough, If it renders the
** enjoyment of life and property uncomfortable.'* i Burr. 337.
R 3 As
ftiy Private Book lit.
As to nufance to one's lands : if one erels a fmelting
houfe for lead fo near the land of another, that the vapour and
fmoke kills his corn and grafs, and damages his cattle therein,
this is held to be a nufance ^. And by confequence it fol-
lows, that if one does any other acl, in itfdf lawful, which
yet being done in that place neceflarily tends to the damage
of another's property, it is a nufance ; for it is incumbent on
C 2 1 8 J Jiifn to find fome other place to do that al, where it will be
lefs ofFenfive. So alfo, if my neighbour ought to fcour a
ditch, and does not, whereby my land is overflowed, this is
an actionable nufance*.
With regard to other corporeal hereditaments: it is a nu
fance to ftop or divert water that ufes to run to another's
meadow or mill ^ ; to corrupt or poi|bn a water- courfe, by
eredling a dye-houfe or a lime-pit for the ufe of trade, in the
upper part of the ftream ' ; or in fiiort to do any al therein,
that in its confequences muft neceflarily tend to the preju-
' dice of one's neighbour. So clofely does the law of England
enforce that excellent rule of gofpel-morality, of " doing to
*' others, as we would they fliould do unto ourfelves."
2. As to rwor/orM/ hereditaments, the law carries itfelf
with the fame equity. If I have a way, annexed to my efl;ate,
acrofs another's land, and be obftrufts me in the ufe of it,
cither by totally flopping it, or putting logs acrofs it, or
ploughing over it, it is a nufance : for in the firft cafe I can-
not enjoy my right at all, and in the latter I cannot enjoy it
fo commodioufly as I ought *" . Alfo, if 1 am entitled to hold
a fair or market, and another perfon fets up a fair or market
fo near mine that he does me a prejudice, it is a nufance to
the freehold which I have in my market or fair ". But in or-
der to make this out to be a nufance, it is neceflary, i . That
my market or fair be the elder, otherwife the nufance lies at
my own door. 2. That the market be erecSted within the
thinl part of twenty miles from mine. For fir Matthew
^ 1 Ro]l. Abr. %(). ' 9 Rep. 59. 2 Roll. Abr, 141.
i Hale on F. N. B. 4*7. " F. N. B. 183. 2 Roll. Abr. J40.
* F. N. B. 184. F. N. B. 14,8. Roll. Abr. 140.
Hale
Ch. 13. Wrongs. 218
Hale * conftrues the dletoy or reafonablc clay's journey men^
tloned by Bra6lon p, to be twenty miles , as indeed it is
ufually underflooci, not only in our own law "i, but alfo in the
civil ', from which we probably borrowed it. So that if the
iiew market be not within feven miles of the old one, it is no
nufance : for it is held reafonable that every man (hould have [ 219 ]
a market within one third of a day's journey from his own
Iiome ; that, the day being divided into three parts, he may
fpend one part in going, another in returning, and the third
in tranfaling his necefiary bufinefs there. If fuch market or
fair be on the fame day with mine, it is prima facie a nufance
to mine, and there needs no proof of it, but the law will intend
it to be fo; but if it be on any other day, it may be a nu-
fance ; though whether it is fo or not, cannot be intended
or prefumed, but I muft make proof of it to the jury. If a
ferry is ere<Sled bn a river, fo near another antient ferry as to
draw away it's cuftom, it is a nufance to the owner of the
old one. For where there is a ferry by prefcription, the
owner is bound to keep it always in repair, and readinefs, for
the eafe of all the king's fubjels; otherwlfe he may be grie-
voufly amerced": it would be therefore extremely hard, if a
new ferry were fuffered to fhare his profits, which does not
alfo (hare his burthen. But where the reafon ceafes, the law
alfo ceafes with it: therefore it is no nufance to erel a mill
fo near mine, as to draw away the cuftom unlefs the mil-
ler alfo intercepts the water. Neither is it a nufance to fet
up any trade, or a fchool, in neighbourhood or rivalfhip with
another : for by fuch emulation the public are like to be
gainers -, and, if the new mill or fchool occafion a damage to
the old one, it is damnum abfque injuria '.
11. Let us next attend to the remedies, which the law
has givtn for this injury of nufance. And here I muft premife
that the law gives no private remedy for any thing but a pri-
vate wrong. Therefore no aiion lies for a public or common
on F. N. B. 184. 'Ff.z. II. I.
* t. ;. c. 16. 2 Roll. Abr. 740.
1 z Inft. 567, Hale on F. N. B. 1S4.
R 3 nufance,
sig Private Book III.
nufance, but an indiBment only : becaufe the damage being
common to all the king's fubjels, no one can afllgn his partif
cular proportion of it ; or if he could, it would be extremely
hard, if every fubjet: in the kingdom were allowed to harafs
the ofFendeif with feparate ations. For this reafon, no per-
fou; natural or corporate, can have an alion for a public
nufance, or punifli it , but only the king in his public capa-
t 220 ] city of fupreme governor, and pater -famUias of the king-
dom". Yet this rule admits of one exception; where a pri-
vate perfon fufFers fome extraordinary damage, beyond the
red of the king's fubjefts, by a public nufance ; in which
cafe he (hall have a private fatisfalion by aftion. As if, by
means of a ditch dug acrofs a public way, which is a com-
mon nufance, a man or his horfe fuffer any injury by falling
therein ; there, for this particular damage (3), which is not
common to others, the party (hall have his al:ion*. Alfo
if a man hath abated, or removed, a nufance which offended
him, (as we may remember it was dated in the fird chapter of
this book, that the party injured hath a right to do,) in this
. cafe he is entitled to no aftion *. For he had choice of two
remedies; either without fuit, by abating it himfelf, by his
own mere at and authority ; or by fuit, in which he may
k<oth r^icover damages, and remove it by the aid of the law :
biifV t?'Ving made his eIelion of one remedy, he is totally
precluded from the other.
The remedies by fuit are, i. By aftion on the cafe for da-
jn?g?s; in which the party injured fliall only recover a fa-
tisf<ition for the injury fudained; but cannot thereby remove
the nufance. Indeed every continuance of a nufance is held
to be a frefh one / ; and therefore a frefh aftion will lie, and
very exemplary damages will probably be given, if, after^one
Vaugh. 34.1, 34Z. * 9 Rep. 55.
"'Co. Litt 56. 5 Rep. 73. y 2 Leon. pi. i2g. Cro. Elii. 402.
(3) But the particular damage in this' cafe muft be direft, and
pot confcquential, as by being delayed in a journey of importance.
Bull. N. P, 26.
verdift
Ch. ij. Wrongs. 220^
verdict agilnft him, the defendant has the hardinefs to conti-
nue it. Yet the founders of the law of England did not rely
upon probabilities merely, in order to give relief to the in-
jured. They have therefore provided two other alions j the
ajftfe of nufancey and the writ of quod permittat projleniere :
which not only give the plaintiff fatisfation for his injury
paftj bat alfo ftrike at the root and remove the caufe itfelf,
the nufance that occafioned the injury. Thefe two actions
however can only be brought by the tenant of the freehold 5 fo
that a lefTee for years is confined to his action upon the cafe *.'
2. An ajftfe of nufance is a writ: wherein it is Hated' that r 221 1
the party injured complains of fome particular fat done, ad
nocumentum I'lberi tenementifui, atid therefore commanding the
flieriff to fummon an affife, that is a jury, and view the pre-
mifes, and have them at the next commiffion of affifes, that
juftice may be done therein" : and, if the aflife is found for
the plaintiff, he (hall have judgment of two things; i. To
have the nufance abated; and 2. To recover damages^. For-
merly an afTife of nufance only lay againft the very wrong-
doer himfelf who levied, or did the nufance ; and did not
lie againft any perfon to whom he had aliened the tene-
mentP, whereon the nufance was fituatcd. This was the
immediate reafon for making that equitable provifion in
ftatute Weflm. 2. 13 Edw. I. c. 24. for granting a fimilar
writ, in cafu conftmili^ where no former precedent was to be
found. The ftatute enals, that " de caetero fion recednni
" querentes a curia dotnini regis ^ pro eo quod tenementum tratf-
**fertur deuno in alium;** and then gives the form of a new
writ in this cafe : which only differs from the old one in
this, that, where the aflife is brought againft the very per-
fon only who levied the nufiince, it is faid ** quod A. (the
<* wrongdoer) injujie levavit tale nocumentum ;^* but, where
the lands are aliened to another perfon, the complaint is
againft both ; quod' A. (the wrongdoer) et B. (the alienee)
** levaverunf-." For every continuation, as was before faid,
* Finch. L. 189. * 9 Rep. S5
-F. N. B. i3. '^Ihid. ,
R4 w
221 P R r V A T E Book III.
is a frefh nufance ; and therefore the complaint is as well
groanded againfl: the alienee who continues it, as againft the
alienor who firil levied it.
3. Before this ftatute, the party injured, upon any alien-
ation of the land wherein the nufance was fct up, was driven
to his quod permittat profternere ; which is in the nature of a
writ of right, and therefore fubjecl to greater delays'^. This
is a- writ commanding the defendant to permit the plaintiff to
abate, qtwd permittat prajiernerey the. nufance complained of;
(] 222 ] and, unlefshe fo permits, to fummonhim to appear in court,
and fhew caufe why he will not"^. And this writ lies as well
for the alienee of the party firft injured, as aga'tnji the alienee
-of the party firft injuring; as hath been determined by all
t.he judges ^ And the plaintiff fhall have judgment herein
to abate the nufance, and to recover damages againft the de-.
fendant.
Both thefe ac'lions, of affife of nufance^ and of quod permit-
int proflerjiere^ are now out of ufe, and have given way to the
action on the cafe; in which, as was before obferved, no
judgment can be had to abate the nufance, but only to reco-
ver damages. Yet, as therein it is not necefTary that the
freehold fhould be in the plaintiff and defendant refpelively,
as it muft be in thefe real anions, but it is maintainable by
one that hath pofTefTioti only, againft another that hath like
poflefHon, the procefs is therefore eafier: and the effedt will
be much the fame, unlefs a man has a very obftinate as well
as an jll-natured neighbour: who had rather continue to pay
damages, than remove his nufance. For in fuch a cafe, re-
f ourfe muft at la ft be had to the old and fure remedies, which
will effedually conquer the defendant's perverfenefs, by fend-
ing the flierift" with \i\zpoJJe coviitatusy or power of die countyi
to level it.
* 2 Inft. 405. ' 5-^ep. IOC, I0|,
F. N. B. XZ4.
Ch. 14; Wrong s. 223
CHAPTER THE FOURTEINTH.
OF WASTE.
'T' H E fourth fpecies of Injury, that may be offered to
one's real property, is by nvafle^ or deftru6lion in lands
and tenements. What fliall be called wafte was confidercd
at large in a former volume *, as it was a means of for-
feiture, and thereby of transferring the property of real
e dates. I fliall therefore here only beg leave to remind the
ftudent, that wafte is a fpoil and deftrudlion of the eftate,
either in houfes, -woods, or lands ; by demolifliing not the
temporary profits only, but the very fubftance of the thing ;
thereby rendering it wild and defolate ; which the common
law exprefles very fignificantly by the word vnjlitm : and that
this vaJJutHi or wafte, is either voluntary, or permiffive ; the
one by an adlual and defigned demolition of the lands, wroods,
and houfes ; the other arifing from mere negligence, and
want of fufiicient care in reparations, fences, and the like.
So that my only bufinefs is at prefent to fhew, to whom this
v/afte is an injury ; and of courfe who is entitled to any,
and what, remedy by alion,
I. The perfons, who may be Injured by wafte, are fuch
as have fome inierejl in the eftate wafted ; for if a man be the
abfolutc tenant in fee-fimple ( i ), without any incumbrance or
See vol. 11. ch. 18.
(1 ) A tenant in fee-taH has the fame uncontrolled and unlimited
power in committing walte, as a tenant In fce-fimplc.
charge
2^3 Private Book III.
charge on the premifcs, he may commit whatever wafte his
own indifcretion may prompt him to, without bting im-
peachable or accountable for it to any one. And, though
his heir is fare to be the fufferer, yet nemo ejl haeres viventis;
no man is certain of fucceetting him, as well on account of
the uncertainty which (hall die firft, as alfo becaufe he has it
in his own power to conftitute what heir he pleafes, accord-
ing to the civil law notion of an haeres natus and an haeres
JaElus : or, in the more accurate phrafeology of our Englifti
law, he may aliene or devife his eftate to whomever he
thinks proper, and by fuch alienation or devife may difin-
herit his heir at law. Into wliofe hands foever therefore
the eftate wafted comes, after a tenant in fee-fimple,
though the wafte is undoubtedly damnum, it is damnum
abfque injuria.
One fpecies of Jntereft, which is injured by wafte, is
that of a psrfon who has a right of common in the place
wafted ; efpecially if it be common of ejlovers^ or a right
of cutting and carrying away wood for "houfe- bote, plough-
bote, ^c. Here, if the owner of the wood demoliflies the
whole wood, and thereby deftroys all poflibility of taking
eftovers, this is an injury to the commoner, amounting to
no lefs than a diiTeifin of his common of eftovers, if he
choofes fo to confider it ; for which he has his remedy to
recover poU'eftion and damages by aflife, if entitled to a free-
hold in fuch common : but if he has only a chattel intereft,
then he can only recover damages by an adlion on the cafe
for this wafte and deftrulion of the woods, out of which
his eftovers were to iflue ''.
But the moft ufual and important intereft, that is hurt
by this commiflion of waf^e, is that of him who hath the re-
mainder or reverfion of the inheritance after a particular eftate
for life or years in being. Here, if the particular tenant,
(be it the tenant in dower or by curtefy, who was anfwerable
for wade at the common law % or the lelTee for life or years,
F. N. B. 59. 9 Rep. 112, ? a Inft. 299.
9 who
Ch. 14. Wrongs. 225
who was firft made liable by the ftatutes of Marlbrulge ^ and
of Glocefter*,) if the particular tenant, I fay, commits or
fuffers any wafte, it is a manifeft injury to him that has the
inheritance, as it tends to mangle and difmcmber it of its
moft defirable incidents and ornaments, among which timber
and houfes may juftly be reckoned the principal. To him
therefore in remainder or reverfion, to whom the hiheritance
appertains in expectancy ^, the law hath given an adequate
remedy. For he, who hath the remainder for life only, is
not entitled to fue for wafte j fince his intereft may never
perhaps come into pofleffion, and then he hath fuffered no
injury (2). Yet a parfon, vicar, arch-deacon, prebendary,
and the like, who are feifed in right of their churches of any
remainder or reverfion, may have an adtion of wafte ; for
they, in many cafes, have for the benefit of the church and
of the fucceflbr a fee-fimple qualified : and yet, as they are
n^Jt feifed in their own right, the writ of wafte fhall not fay,
ad exhaeredationem ipftus, as for other tenants in fee-fimple ;
h\x\. ad exhaeredationem eccleftaey in whofe right the fec-fimplc
is holdeu s.
II. The redrefs for this injury of wafte is of two kinds;
preventive, and corredlive : the former of which is by writ
of ejirepementi the latter by that of ivafle,
I. EsTREPEMENT IS an old French word, fignifying the
fame as wafte or extirpation : and the writ of eflrepement lay
" 52 Hen. III. c. 23. ' Co. Litt< 53.
* 6EJw. 1. c. 5. B lh\d. 341.
, ^ , . . , _
(2) No perfon is entitled to an aftion of wafte againft a tenant
for life, but he who has the immediate eftate of inheritance in re-
mainder or reverfion, expeftant upon the eftate for life. If be-
tween the eftate of the tenant for life who commits wafte, and the
fubfcqucnt eftate of inheritance, there is interpofcd an eftate of
freehold to any perfon in effe, then, during the continuance of fuch
interpofed eftate, the adion of wafte is fufpcndcd ; and if the firft
tenant for life dies during the continuance of fuch interpofed eftate,
the adion is gone for ever. Harg. Co. Litt. 218. ^.
at
22 5 Private Book III.
at the common law, after judgment obtained in any action
real '', and before pofieffion was delivered by the fherifFj to
ftop any wafte which the vanquiftied party might be tempted
to commit in lands, which were determined to be no longer
his. But as in fome cafes the demandant may be juftly
apprehenfive, that the tenant may make wafte or ejirepement
pending the fuit, well knowing the weaknefs of his title,
therefore the ftatute of Glocefter ' gave another writ of
ejirepement^ pendente plac'itoy commanding the flierifF firmly
r 226 3 to inhibit the tenant *' nefaciat vnftum vel ejirepamentum pen-
" dente plncito diHo tndtfcujfo^.''* And, by virtue of either of
thefe writs the (herifF may refift them that do, or ofFer to do
wafte ; and, if otherwife he cannot prevent them, he may
lawfully imprifon the wafters, or make a warrant to others
to imprifon them : or, if necefTity require, he may take the
pojfe comitatus to his alTiflance. So odious in the fight of the
law is wafte and deftruflion '. In fuing out thefe fwo writs
this difference was formerly obferved -, that in aftions merely
poflefTory, where no damages are recovered, a writ of ejlrepe-
tnent might be had at any time pendente I'lte^ nay even at the
time of fuing out the original writ, or firft procefs : but,
in an aHon where damages were recovered, the demandant
could only have a writ of ejlrepementy if he was apprehenfive
of wafte after verdil had"" j for, with regard to wafte done
before the verdidl was given, it was prefumed the jury would
Confider that in allefling the quantinn of damages. But now
it feems to be held, by an equitable conftru6lion of the ftatute
of Glocefter, and in advancement of the remedy, that a writ
of ejlrepementy to prevent wafte, may be had in every ftage,
as well of fuch alions wherein damages are recovered, as of
thofe wherein only poflefTion is had of the lands ; for per-
adventure, faith the law, the tenant may not be of ability to
fatisfy the demandant his full damages". And therefore, now,
in an alion of wafte itfelf, to recover the place wafted and
alfo damages, a writ of ejirepement will lie, as well before as
* a Tnft. 328. > 2 Inft. 329.
5 6 Edw. I. c. 13. in F.N. B. 6?, 61,
after
Ch. 14. Wrong s* 226
after judgment. For the plaintiff cannot recover damages
for more wafte than is contained in his original complaint;
neither is he at liberty to affign or give in evidence any wafte
made after the fuing out of the writ : it is therefore reafonable
that he fhould have this writ of preventive jniiicef fmce he is
in his prefent fuit debarred of any farther remedial . If a writ '
of ejlrepemetity forbidding wafte, be direiSlcd and delivered to
the tenant himfelf, as it may be, and he afterwards proceeds
to commit wafte, an alion may be carried on upon the
foundation of this writ-, wherein the only plea of the tenant [ 227 T
can be, non fecit vajium centra prokihitigneni : and, if upon
verdil it be found that he did, the plaintiff may recover cofts
and damages p, or the party may proceed to puniih the de-
fendant for the contempt : for if, after the writ directed and
delivered to the tenant or his fervants, they proceed to com-
mit wafte, the court will imprifon them for this contempt of
the writ"^. But not fo, if it be direfted to the {heriff, for
then it is incumbent upon him to prevent the ejlrepement ab-
folutely, even by raifing the poj/e comitatusy if it can be done
no other way.
Besides this preventive redrefs at common law, the courts
of equity, upon bill exhibited therein, complaining of wafte
and deftrudlion, will grant an injundlion or order to ftay
wafte, until the defendant fhall have put in his anfwer, and
the court fliall thereupon make farther order. Which is now
become the moft ufual vjray of preventing wafte.
2. A "WRIT of luajle is alfo an action, partly founded upon
the common law and partly upon the flatute of Glocefter' j
and may be brought by him who hath the immediate eftate of
inheritance in reverfion or remainder, againft the tenant for
life, tenant in dower, tenant by the curtefy, or tenant for
years. This adlion is alfo maintainable in purfuance of fta-
tute ' Weftm. 2. by one tenant in commoji of the inherit-
" 5 Rep. 115. ' 6 Ed. I. c. 5.
P Moor. 1 00. '13 Ed. 1. c. la.
% Hob. 85.
t3 nCC
ti'f Private Book Uti
ance againfl: another, who makes wafte in the eftate holder!
in common. The equity of which ftatute extends to joint*'
tenants, but not to copatceners ; becaufe by the old law co-
parceners might make partition, whenever either of them
thought proper, and thereby prevent future wafte, but te-
nants in commion and joint-tenants could not ; and there-
fore the ftatute gave them this remedy, compelling the de-
fendant either to make partition, and take the place wafted to
his own (hare, or to give fecurity not to commit any farther
wafte *. But thefe tenants in common and joint-tenants are
228 ] not liable to the penalties of the ftatute of Glccefter, which
extends only to fuch as have life-eftates, and do wafte to the
prejudice of the inheritance. The wafte however muft be
fomething confiderable ; for if it amount only to twelve
-pence, or fome fuch petty fum, the plaintiff fhall not reco-
ver in an action of wafte : nam de minimis non curat lex ".
This alIon of wafte is a mixed ation ; partly real, fo far
as it recovers land, and partly perfonal, fo far as it recovers
damages. For it is brought for both thofe purpofes; and, if
the wafte be proved, the plaintiff (hall recover the thing or
place wafted, and alfo treble damages by the ftatute of Glo-
ceftcr. The writ of wafte calls upon the tenant to appear
and fliew caufe, why he hath committed wafte and deftrudtion
in the place named, ad exhaeredationemy to the difinherifon^
<jf the plaintift' ^. And if the defendant makes default, or
does not appear at the day affigned him, then the (herifF is
to take with him a jury of twelve men, and go in perfon to
the place alleged to be wafted, and there inquire of the wafte
done, and the damages ; and make a return or report of
the fame to the court, upon which report" the judgment is
founded *. For the law will not fuffer fo heavy a judgment,
as the forfeiture and treble damages, to be pafTed upon a
mere default, without full afTurance that the fa6l is according
as it is ftated in the writ. But if the defendant appears to
the writ, and afterwards fufFers judgment -to go againft him
t 2 Inft. 403, 404. ^ F. N. B. 55.
finch. L. 9. * Poph. 24.
by
.Ch. 14. .Wrongs. ^'(ii^
by default, or upon a nihil dicit, (when he makes no anfwer,
puts in no plea, in defence,) this amounts to a confefTion of
the wafte ; fince, having once appeared, he cannot now pre-
tend ignorance of the charge. Now therefore the (herifF
fliall not go to the place to inquire of the fa^V, whether
any waftc has, or has not, been committed ; for this is
already afcertained by the filent confelTion of the defendant ;
but he (hall only, as in defaults upon other adions, make
inquiry of the quantum of damages ^. The defendant, on
the trial, may give in evidence any thing that proves there [ 229 3
was no wafte committed, as that the deftrudlion happened
by lightning, tempeft, the king's ene|nies, oiother inevitable
'accident ^ (3 ). But it is no defence to fay, that a flranger did
the wafte, for again ft him the plaintiff hath no remedy :
though the defendant is entitled to fue fuch flranger In an
al:ion of trefpafs vi et armis, and fhall recover the damages
he has fulFered in confequence of fuch unlawful 26I ".
When the wafte and damages are thus afcertained, either
by confeiTion, verdid, or inquiry of the fherifF, judgment is
given, in purfuance of the ftatute of Glocefter, c. 5. that the
plaintiff" ftiall recover the place wafted ; for which he has
immediately a writ oifeiftn, provided the particular eftiate be
ftill fubfifting, (for, if it be expired, there can be no for-
feiture of the land,) and alf6 that the plaintiff fiiall recover
treble the damages aflefTed by the jury ; which he muft obtain
in the fame manner as all other damages, in adlions perfonal
and mixed, are obtained, whether the particular eftate be
expired, or ftill In being.
y Cro. Eliz. 18. 290. " L&v; of tiijt prius. 112.
2 Co. Litt. 53.
(3) But the deftrudlion of a houfe by fire, unlefs in convenient
time repaired, is wafte. So between landlord and tenant, thougli
there be no covenant to repair or rebuild, the tenant is fubjeft to
wafte in general ; and, if the houfe be burnt by fire, he muft re-
build. I ref. 462.
^3^ Private Book IIL
CHAPTER THE FIFTEENTH.
OF SUBTRACTION.
SUBTRACTION, which is the fifth fpecies of inju-
ries afte<Sling a man's real property, happens when any
perfon who owes any fuit, duty, cuftom, or fervice to ano-
ther, withdraws or neglefls to perform it. It differs from
a diffeifin, in that this is committed without any denial of the
right, confifting merely in non-performance ; that ftrikes at
the very title of the party injured, and amounts to an oufter
or a6tual difpoffeflion. Subtra6lion however, being clearly
an injury, is remediable by due courfe of law : but the re-
medy differs according to the nature of the fervices ; whether
they be due by virtue of any tenure, or by cuftom only.
I. Fealty, fuit of court, and rent, are duties and fer-
vices ufually iffuing and arifing ratiom teniiraey being the
conditions upon which the antient lords granted out their
lands to their feudatories : whereby it was ftipulated, that
they and their heirs (hould take the oath of fealty or fidelity
to their lord, which was the feodal bond or commune vinculum
between lord and tenant; that they (hould do fuit, or duly '
attend and follow the lord's courts, and there from time to
time give their affiftance, by ferving on juries, either to de-
cide the property of their neighbours in the court-baron, or
correal their mifdemefnors in the court-leet , and, laftly,
that they fliould yield to the lord certain annual ftated re-
turns, in military attendance, in provifions, in arms, in
matters of ornament or pleafure, in ruftic employments o*-
praedial
Ch. 15. Wrongs. 231
praedial labours, or (which is inflar omnium) in moneys
which will provide all the reft ; all which are comprized un-
der the one general name of red'ttiis^ return, or rent. And
the fubtradlion or non-obfervance of any of thefe conditions,
by neglecting to fwear fealty, to do fuit of court, or to ren-
der the rent or fervice referved, is an injury to the freehold
of the lord, by diminiftiing and depreciating the value of his
feignory.
The general remedy for all thefe is by dijlrefs ,- and It is
the only remedy at the common law for the two firft of them.
The nature of diftrefles, their incidents and confequences,
we have before more than once explained * : it may here fuf-
fice to remember, that they are a taking of beafts, or other
perfonal property, by way of pledge to enforce the perform-
ance of fomething due from the party dlftreined upon. And
for the mod part it is provided that diftrefTes be reafonable
and moderate ; but, in the cafe of diftrefs for fealty or fuit of
court, no diftrefs can be unreafonable, immoderate, or too
large ^ : for this is the only remedy to which the party ag-
grieved is entitled, and therefore it ought to be fuch as is
fufEciently compulfory ; and, be it of what value it will,
there is no harm done, efpecially as it cannot be fold or made
away with, but muft be reftored Immediately on fatisfadion
made. A diftrefs of this nature, that has no bounds with
regard to it's quantity, and may be repeated from time to
time, until the ftubbornnefs of the party is conquered, is
called a dijirefs infinite; which is alfo ufcd for fome other
purpofes, as in fummoning jurors, and the like.
Other remedies for fubtradion of rents or fervlces are,
1. By aflion of dek, for the breach of this exprefs contraft,
of which enough has been formerly faid. This is the moft
ufual remedy, when recourfe is had to any alion at all for
the recovery of pecuniary rents, to which fpecies of r'ender
almoft all free fervlces are now reduced, fince the abolition
of the military tenures. But for a freehold rent, referved on
Sec fage 6. 148. '' Finch, L. 225,
Vol. III. S aleafc
132 Private Book III,
a leafe for life, ^c. no a6Hon of debt lay by the comrtion law,
during the continuance of the freehold out of which it iffued^ ;
for the law would not fuffer a real injury to be remedied by
an alion that was merely perfona/. However, by the ftatutes
8 Ann. c. 14. and 5 Geo. III. c. 17. anions of debt may now
be brought at any time to recover fuch freehold rents. 2. An
affife of mort d'ancejlor or novel dijjeifm will lie of rents as well
as of lands "^ ; if the lord, for the fake of trying the pofleflbry
right, will make it his election to fuppofe himfelf oufted or
difleifed thereof. This is now feldom heard of*, and all other
real adlions to recover rent, being In the nature of writs of
right, and therefore more dilatory in their progrefs, are en-
tirely difufed, though not formally abolifhed bylaw. Of this
fpecies however is, 3. The writ de confuetudinihus etfervliiis,
which lies for the lord againft his tenant, who withholds from
him the rents and fervices due by cuftom, or tenure, for his
land*". This compels a fpecific payment or performance of
the rent or fervice ; and there are alfo others, whereby the
lord (hall recover the land itfelf in lieu of the duty withheld.
As, 4. The writ of cejfavit : which lies by the ftatutes of
Glocefter, 6 Edw. I. c. 4. and of Weftm. 2. 13 Edw. I.
c. 21 & 41. when a man who holds lands of a lord by rent or
other fervices, neglels or ceafes to perform his fervices for
two years together ; or where a religious houfe hath lands
given it, on condition of performing fomc certain fplritual
fervice, as reading prayers or giving alms, and neglefts it ;
In either of which cafes. If the cejfer or negledt have conti-
nued for two years, the lord or donor and his heirs fhall have
a writ of cejfavit to recover the land itfelf, eo quodtenens infa-
c'lendis fervitiis per biennium jam cejfavit ^ In like manner, b.y
the civil law, if a tenant who held lands upon payment of
rent or fervices, or " Jure emphyteuticOy* negledlied to pay or
perform them per totum irienniumt he might be ejeled from
fuch emphyteutic ^ands ?. But by the ftatute of Glocefter>
tlie cejfavit does not lie for lands let upon fee-farm rents, un-
1 Roll. Abr. 595. < Ibid. ao8.
* F. N. B. 195. 8 Cod. 4. 66. *.
' Hid. 151.
Ch. 15. Wrong s. 233
Icfs they have lain frefh and uncultivated for two years, and
there be not fufficient diftrefs upon the premlfes; or unlefs the
tenant hath fo enclofed the land, that the lord cannot come
upon it to diftrein ^. For the law prefers the fimple and or-
dinary remedies, by diftrefs or by the aftions juft now men-
tioned, to this extraordinary one of forfeiture for a cejpzvitj
and therefore the fame ftatute of Glocefter has provided far-
ther, that upon tender of arrears and damages before judg-
ment, and giving fecurity for the future performance of the
fervices, the procefs fhail be at an end, and the tenant (hall
retain his lands ; to which the ftatute of Weftm. 2. conforms,
fo far as may ftand with convenience and reafon of law '. It
is eafy to obferve, that the ftatute'' 4 Geo. II. c. 28. (which
permits landlords who have a right of re-entry for non-pay-
ment of rent, to ferve an ejelment on their tenants, when
half a year's rent is due, and there is no fufficient diftrefs on
the premifes) is in fome meafure copied from the antient writ
oi cejfavit : efpecially as it may be fatisfied and put an end to
in a fimilar manner, by tender of the rent and cofts within
fix months after. And the fame remedy is, in fubftance,
adopted by ftatute 11 Geo. II. c. 19. 16. which enafts,
that where any tenant at rack-rent fhall be one year's rent in
arrear, and fhall defert the demifed premifes, leaving the fame
uncultivated or unoccupied, fo that no fufficient diftrefs can
be had : two juftices of the peace (after notice affixed on the
premifes for fourteen days without efi'edl:) may give the land-
lord pofTeffion thereof, and thenceforth the leafe fhall be void.
5. There is alfo another very efFedlual remedy, which takes
place when the tenant upon a writ of affife for rent, or on a
replevin, difowns or difclaims his tenure, whereby the lord
lofes his verdift : in which cafe the lord may have a writ of
Tight,yMr difclaimery grounded on this denial of tenure ; and
(hall, upon proof of the tenure, recover back the land itfelf
fo holden, as a punifhment to the tenant for fuch his falfc dif-
claimer '. This piece of retalliating juftice, whereby the te-
nant who endeavours to defraud his lord is himfelf deprived
of the eftatc, as it evidently proceeds upon feodal principles,
" F. N. B. 209. a Inft. tr)Z. * See page 206.
' % Inft. c^Qi. 460. * Finch. L, 470, 271.
S 2 fo
234
Private Book III.
fo it is cxprefsly to be met with in the feodal conftitutions'":
** vafallusj qui abnegavit feudum ejufve conditionemy ePffpo-
liabitur,"
And, as on the one hand the antient law provided thefe
feveral remedies to obviate the knavery and punilh the ingra-
titude of the tenant, fo on the other hand it v^ras equally
careful to redrefs the oppreffion of the lord ; by furnifhing,
I, The wx\i of ne injujle vexes " ; which is an antient writ
founded on that chapter ** of magna carta, which prohibits
diftrefles for greater fervices than are really due to the lord ;
being itfelf of the prohibitory kind, and yet in the nature of
a writ of right p. It lies, where the tenant in fee-fimple and
his anceftors have held of the lord by certain fervices ; and
the lord hath obtained feifin of more or greater fervices, by
the inadvertent payment or performance of them by the te-
nant himfelf. Here the tenant cannot in an avowry avoid the
lord's pofleflbry right, becaufe of the feifin given by his own
hands ; but is driven to this writ, to devefl the lord's poflef-
fion, and eftablifh the mere right of property, by afcertaining
the fervices, and reducing them to their proper ftandard.
But this writ does not lie for tenant in tail j for he may avoid
fuch feifin of the lord, obtained from the payment of his an-
ceftors, by plea to an avowry in replevin "i. 2. The writ of
niefne de medio ; which is alfo in the nature of a writ of right %
and lies, when upon a fubinfeudationthe mefne, or middle lord',
fuffers his under-tenant, or t^nznt par avail, to be diftreined
upon by the lord paramount, for the rent due to him from the
mefne lord'. And in fuch cafe the tenant {hall have judg-
ment to be acquitted (or indemnified) by the mefne lord ;
and if he makes default therein, or does not appear originally
to the tenant's writ, he fliall be forejudged of his mefnalty,
and the tenant (hall hold immediately of the lord paramount
himfelf".
" Feud. I. z. I. t6. Booth. 136.
F, N. B. 10. See book-II. ch. 5. page 59, 60,
* c. JO. ' * F. N. B, 135.
Booth. 126, "a inft. 37ij..
F. N.B. IX. ainft. zxi
JI. Thus
Ch. 15. Wrongs. 2J5
II. Thus far of the remedies for fubtraftion of rents or
other fervices due by tenure. There are alfo other fervlces,
due by antient cujiom and prefcription only. Such is that of
doing fuit to another's mill : where the perfons, refident in
a particular place, by ufage time out of mind have been ac-
cuftomed to grind their corn at a certain mill j and afterwards
any of them go to another mill, and withdraw their fuit,
{tht'vc fecfa, afeqtiendo) from the antient mill. This is not
only a damage, but an injury, to the owner ; becaufe this
prefcription might have a very reafonable foundation, viz.
upon the eredlion of fuch mill by the anceflors of the owner
for the convenience of the inhabitants, on condition, that
when erefled, they fhould all grind their corn there only.
And for this injury the owner (hall have a writ de feSia ad
tnolendiniim^ y commanding the defendant to do his fuit at that
mill, quam ad illud facere debet^ etfolet^ or fhew good caufe
to the contrary : in which adlion the validity of the prefcrip-
tion may be tried, and if it be found for the owner, he fliall
recover damages againft the defendant ^. In like manner,
and for like reafons, the regifter ^ will inform us, that a man
may have a writ olfeSla adfurnuniffeSla ad torrale^ et adom
nia alia hujtifmodi ; for fuit due to his Ji/rnum^ his public oven
or bakehoufe -, or to his torrale, his kiln, or malthoufe ; when
a perfon's anceftors have erefted a convenience of that Ibrt for
the benefit of the neighbourhood, upon an agreement (proved
by immemorial cuftom) that all the inhabitants Ihould ufe
and refort to it, when eredled. But befides thefe fpecial re-
medies for fubtradtions, to compel the fpecific performance
of the fervice due by cuftom : an adlion on the cafe will alfo
lie for all of them, to repair the party injured in damages (i).
And thus much for the injury of fubtra6lion.
" F. N.B. 123. Co. Entr. 461. fol. 153.
( I ) This is now the only aftion in ufe for mod of the injuries
fpecified in this chapter ; the antient appropriate writs have become
fo obfolete, that few fpecial pleaders, if any, would know how to
proceed in thenu
S3
S36 Private Book IU.
CHAPTER THE SIXTEENTH,
OF DISTURBANCE.
TH E fixth and laft fpecies of real injuries is that of
dijlurbance ; which is ufually a wrong done to fome
incorporeal hereditament, by hindering or difquieting the
owners in their regular and lawful enjoyment of it '. I fhall
confider five forts of this injury; viz. i. Difturbance of
franchifes, 2. Difturbance of fc?wwo. 3. Difturbance of wfl)'^',
4, Difturbance of tenure, 5. Difturbance ol patronage,
I. Disturbance of yrflw^j/^j- happens, when a man has
the f^nchife of holding a court-leet, of keeping a fair or
market, of free warren, of taking toll, of fcifing waifs or
eftrays, or (in fhort) any other fpecies of franchife whatfo-
ever ; and he is difturbed or incommoded in the lawful excr-
cife thereof. As if another by diftrefs, menaces, or perfuafions,
prevails upon the fuitors not to appear at my court j or ob-
ftrufts the paflage to my fair or market; or hunts in my free-
warren ; or refufes to pay me the accuftomed toll ; or hin-
ders me from fcifing the waif or eftray, whereby it efcapes
or is carried out of my liberty ; in every cafe of this kind,
all which it is impofTible here to recite or fuggeft, there is an
injury done to the legal owner; his property is damnified;
and the profits arifing from fuch his franchife are diminifhed.
Jo remedy which, as the law has given no other writ, he is
Finch. L. 187,
therefore
Ch. i6. Wrong s. 237
therefore entitled to fue for damages by a fpeclal aflion
on the cafe : or, in cafe of toll, may take a diftrefs if he
pleafes ''.
II. The disturbance of common comes next to be confi-
dered ; where any aft is done, by which the right of another
to his common is incommofled or dlminifhed. This may
happen, in the firft place, where one who hath no right of
common, puts his cattle into the land ; and thereby robs the
cattle of the commoners of their refpelive fhares of the
pafture. Or if one, who hath a right of common, puts iri
catfle which are not commonable, as hogs and goats ; which
amounts to the fame inconvenience. But the lord of the foil
may (by cuftom or prefcription, but not without) put a ft'ran-
ger's cattle into the common c j and alfo, by a like prefcrip-
tion for common appurtenant, cattle that are not common-
able may be put into the common ''. The lord alfo of the
foil may juftify making burrows therein, and putting in rab-
bets, fo as they do not encreafe to fo large a number as to-
tally to deftroy the common '. But in general, in cafe the
beads of a ftranger, or the uncommonable cattle of a com-
moner, be found upon the land, the lord or any of the com-
moners may diftrein them damage-feafant ^ : or the com-
moner may bring an alion on the cafe to recover damages,
provided the injury done be any thing confiderable : fo that
he may lay his alion with a per quody or allege that thereby
he was deprived of his common. But for a trivial trefpafs
the commoner has no aftion ; but the lord of the foil only
for the entry and trefpafs committed ,
Another difturbance of common is hy furcharging it; or
putting more cattle therein than the pafture and herbage will
fuftain, or the party hath a right to do. In this cafe he that
furcharges does an injury to the reft of the owners, by de-
priving them of their refpcdive portions, oral leall contraft-
* Cro. Eliz. 558. Cro. Eliz. 876. Cro.J^c. 195, Lutw.108,
I Roll. Abr. 396. ' 9 Rep. ijz.
* C*. Litt. JZ2. IbtH,
S 4 " ing
438 Private Book III.
jng tham Into a fmaller compafs. This injury by ftrrcharging
can properly fpeaking only happen, where the common is
appendant or appurtenant ^^ and of courfe limitable by law ;
or where, when in grofs^ it is exprefsly limited and certain :
for where a man hath common in grofs, fans nomhre or ivith'
otitjiinti he cannot be a furcharger. However, even where
a man is faid to have common without ftint, ftill there mufl:
be left fufEcient for the lord's own beads': for the law will
not fuppofe that, at the original grant of the common, the
lord meant to exclude himfelf.
The ufual remedies, for furcharging the common, arc ei-
ther by dillreining fo many of the beads as are above the
number allowed, or elfe by an adtion of trefpafs j both which
may be had by the lord : or laftly, by a fpecial ation on
the cafe for damages j in which any commoner may be plain-
tiff]. But the antient and moft efFelual method of pro-
ceeding is by writ of admeafurement oi pajlure. This lies, ci-
ther where a common appurtenant or in grofs is certain as to
number, or where a man has common appendant or appur-
tenant to his land, the quantity of which common has never
yet been afcertained. In either of thefe cafes, as well the
lord, as any of the commoners, is entitled to this writ of
admeafurement; which is one of thofe writs, that are called
vicontiel^, being direfted to the fherifF, [^vice comitiy) and not
to be returned to any fuperior court, till finally executed by
him. It recites a complaint, that the defendant hath fur-
charged, fuperoneravity the common : and therefore com-
mands the flierifF to admeafure and apportion it ; that the
defendant may not have more than belongs to him, and that
the plaintiff may have his rightful (hare. And upon this fuit
all the commoners (hall be admeafured, as well thofe who
Jiave not, as thofe who have, furcharged the common ; as
well the plaintiff, as the defendant '. The execution of this
writ mull be by a jury of twelve men, who are upon their
* See book JI. ch. 3. ^ z Inft. 369. Finch. L. 314.
1 Roll. Abr. 395. ^ Fi N. B. 1x5.
i frccaj. 273,
oathi
Ch. i5. Wrong s. 239
oaths to afcertain, under the fuperintendence of the (heriff*
what and how many cattle each commoner is entitled to
feed. And the rule for this admeafurement is generally un-
derftood to be, that the commoner {hall not turn more cattle
upon the common, than are fufficient to manure and ftock
the land to which his right of common is annexed ; or, as
our ai5tientlaw exprefled it, fuch cattle only as are levant and
couchant upon his tenement "* ( i ) : which being a thing uncer-
tain before admeafurement, has frequently, though errone-
oufly, occafioned this unmeafured right of common to be
called a common'kvitBout Jlifit or fans nombre " ; a thing which,
though poflible in law % does in fa6l very rarely exift.
If, after the admeafurement has thus afcertained the right,
the fame defendant furcharges the common again, the plaintiff
may have a writ oi fe con d fur char gey de fecunda fuperonerationCy
which is given by the ftatute "Weftm. 2. 13 Edw. I. c. 8. and
thereby the fheriff is dire6led to inquire by a jury, whether
the defendant has in fal again furcharged the common con-
trary to the tenor of the laft admeafurement : and if he has,
he {hall then forfeit to the king the fupernumerary cattle put
in, and alfo fliall pay damages to theplainti{FP. This procefs
feems highly equitable : for the {irft offence is held to be
committed through mere inadvertence, and therefore there
are no damages or forfeiture on the .{ir{t writ, which was only
to afcertain the right Xvhich was difputed : but the fecond
offence is a wilful cont.^mpt and inju{lice ; and therefore pu-
ni{hed very properly with not only damages, but alfo for-
feiture. And herein the right, being once fettled, Is never
again difputed ; but only the hdi is tried, whether there be
any fecond furchargeor no: which gives this negleled pro-
Bro. Mr. I. fre/crij>t\ott, a8. Lord Raym. 407.
Hardr. 1:7. P F. N. B, 126. a Inft. 370.
( I ) And agreeably to this rule it has been decided, that a claim
of a right of common for all commonable cattle, levant and
gouchant, in right of a mefTuage, to which no land is appurtenantf
cannot be fupported. 5 T. R. 46.
cceding
239 Private Book III.
ceeding a great advantage over the modern method, by a<Slion
on the cafe, wherehi the quantum of common belonging to
the defendant muft be proved upon every frefli trial, for every
V repeated offence.
r 240 1 There is yet another difturbancc of common, when the
owner of the land, or other perfon, fo enclofes or otherwife
obftru3:s it, that the commoner is precluded from enjoying
the benefit, to which he is by law entitled. This may be
done, either by ereling fences, or by driving the cattle off
the land, or by ploughing up the foil of the common % Or
it may be done by erecting a warren therein, and flocking it
with, rabbets in fuch quantities, that they devour the whole
herbage, and thereby deftroy the common. For in fuch cafe,
though the commoner may not deftroy the rabbets, yet the
law looks upon this as an injurious difturbance of his right, ^
and has given him his remedy by aftion againft the owner ".
This kind of difturbance does indeed amount to a difleifin,
and if the commoner chufes to confider it in that light, the
law has given him an aflize of novel dijfetftny againft the lord,
to recover the poflelfion of his common \ Or it has given a
writ of quod per mittat, againft any ftranger, as well as the
owner of the land, in cafe of fuch a difturbance to the plain-
tiff as amounts to a total deprivation of his common ;
whereby the defendant (hall be compelled to permit the plain-
tiff to enjoy his common as he ought '. But if the commoner
does not chufe to bring a real alion to recover feifin, or to
try the right, he may (which is the eafier and ropre ufual
way) bring an alion on the cafe for his damages, inftead of
an alTife or a quod pennittat ". ,
There are cafes indeed, in which the lord may enclofc
and abridge the common ; for which, as they are no injury
to any one, fo no one is entitled to any remedy. For it is
' provided by the ftatute of Merton, 20 Hen. III. c. 4. that
the lord mzy approve, that is, enclofe and convert to the ufes
J Cro. Elii. rgS. Finch. L. 275. F. N. B. 113.
T Cro, Jac. 195. " Cro. Jac. 195.
F, N. B. 179. \
4 of
Ch. 1 6. Wrongs. 240
of hufbandry, (which is a melioration or approvement,) any"
wade grounds, woods, or paltures, in which his tenants
have common appendant to their eltates ; provided he leaves
fufficicnt common to his tenants, according to the proportion [ 241 3
of their land(2). And this is extremely reafonable: for it would
be very hard if the lord, whofe ancellors granted out thefc
eftates to which the commons are appendant, Ihould be pre-
cluded from making what advantage he can of the reft of
his manor ; provided fuch advantage and improvement be
no way derogatory from the former grants. The ftatute
Weftm. 2. i3Edw. I. c. 46. extends this liberty of approv-
ing, rn like manner, again ft all others that have common ap-
purtenanty or in grofsy as well as againft the tenants of the
lord, who have their common appendant; and farther enatS|
that no afhfe of novel dijfe'ijiny for common, fliall lie againft
a lord for eredling on the common any windmill, fheephoufe,
or other neceflary buildings therein fpecified : which, fir Ed-
ward Coke fays *', are only put as examples ; and that any
other neceflary improvements may be made by the lord,
though in reality they abridge the common, and make it lefs
fufhcient for the commoners. And laftly by ftatute 29 Geo.
II. 0.36. and 31 Geo. II. c.41. it is particularly enabled,
that any lords of waftes and commons, with the confent of
the major part, in number and value, of the commoners,
may enclofe any part thereof, for the growth of timber and
underwood.
III. The third fpecics of difturbance, that of lua^y is
very fimilar in it's nature to the laft : it principally happen-
ing when a perfon, who hath a right to a way over another's
grounds, by grant or prefcription, is obftrucSted by enclofures,
or other obftacles, or by ploughing acrofs it ; by which
means he cannot enjoy his right or way, or at leaft not in fo
commodious a manner as he might have done. If this be a
* a Inft. 476.
|[2) 3cc 2 vol. p. 34. n. 14.
way
241 Private Book III,
way annexed to liis eftate, and the obftruflion Is made by the
tenant of the land, this brings it to another fpecies of injury ;
for it is then a nufancey for which an affife will lie, as men-
tioned in a former chapter ^. But if the right of way, thus
obftruled by the tenant, be only in grofs, (that is, annexed
to a man's perfon and unconnedled with any lands or tene-
r 2AZ 1 nients,) or if the obftrudlion of a way belonging to an houfe
or land is made by a ftranger, it is then in either cafe merely
a difturbance : for the obftrulion of a way in grofs is no de-
triment to any lands or tenements, and therefore does not fall
tinder the legal notion of a nufance, which muft be laid, ad
nocumentum I'lberi ienemeniif ; and the obftru6tion of it by a
itranger can never tend to put the right of way in difpute :
the remedy therefore for thefe diiturbances is not by affife or
any real action, but by the univerfal remedy of alion on the
cafe to recover damages ^,
IV. The fourth fpecies of diflurbance Is that of difturbance
of tenurey or breaking that connexion which fubfifts between
the lord and his tenant, and to which the law pays fo high a
regard, that it will not fufFer it to be wantonly diflblved by
the a6l of a third perfon. To have an eftate well tenanted is
an advantage that every landlord muft be very fenfibk of; and
therefore the driving away of a tenant from off his eftate is an
injury of no fmall confequence. So that if there be a tenant
at will of any lands or tenements, and a ftranger either by
menaces and threats, or by unlawful diftrefles, or by fraud
and circumvention, or other means, contrives to drive him
away, or inveigle him to leave his tenancy, this the law very
juftly conftrues to be a wrong and injury to the lord % and
gives him a reparation in damages againft the offender by a
fpecial action on the cafe.
V. The fifth and laft fpecies of difturbance, but by far
the moft confiderable, is that of difturbance of patronage i
cb. 13. p. 218, ' Hale on F. N. B. 183. Lutw. 111. 119.
7 F. N. B. i2> Hal. Anal, c, 40. i RqU. h\ix. 108.
7 which
Ch. i6. Wrongs. 24a
which is an hindrance or obftrudlion of a patron to prefent
his clerk to a benefice.
This injury was diftinguifhed at common law from another
fpecies of injury, called ufurpatioji; which is an abfolute oufter
or difpofleffion of the patron, and happens when a ftranger
that hath no right, prefenteth a clerk, and he is thereupon
admitted and inftituted ^. In which cafe, of ufurpation, the [ 243 ]
patron loft by the common law not only his turn of prefent-
ing pro hoc vice^ but alfo the abfolute and perpetual inherit-
ance of the advowfon, fo that he could not prefent again upon
the next avoidance, unlefs in the mean time he recovered his
right by a real ation, viz. a writ of right of advoivfon *=. The
rcafon given for his lofing the prefent turn, and not ejefling
the ufurper's clerk, was, that the final intent of the law in
creating this fpecies of property being to have a fit perfon to
celebrate divine fervice, it preferred the peace of the church
(provided a clerk were once admitted and inftituted) to the
right of any patron whatever. And the patron alfo loft the
inheritance of his advowfon, unlefs he recovered it in a writ
of right, becaufe by fuch ufurpation he was put out of pofleC-
fion of his advowfon, as much as when by atual entry and
oufter he is difleifed of lands or houfes ; fince the only pof-
feflion, of which an advowfon is capable, is by aftual pre-
fentation and admiffion of one's clerk. As therefore, when
the clerk was once inftituted (except in the cafe of the king,'
where he muft alfo be indudled'^) the church became abfo-
\\xtt\j ftdl ; fo the ufurper by fuch plenarty, arifing from his
own prcfentation, became in fal feifed of the advowfon :
which feifin it was impofBble for the true patron to remove
by any pofleflbry alion, or other means, during the plenarty
or fuUnefs of the church \ and when it became void afrefh,
he could not then prefent, fince another had the right of pof-
feflion. The only remedy therefore, which the patron had
left, was to try the mere right in a writ oi right of advoivfon j
which is a peculiar writ of right, framed for this fpecial pur-
* Co. Litt, 277, f 6 Rep. 49. .< Ibid.
pofe.
243 Private Book III.
pofe, but In every other refpct correfponding with other
writs of right* : and if a man recovered therein, he regained
the poflVflion of his advowfon, and was entitled to prefent at
the next avoidance ^ But in order to fuch recovery he mull
allege a prefentation in himfelf or fome of his ancedors :
which proves him or them to have been once in pofleflion :
for, as a grant of the advowfon, during the fullnefs of the
f 244 ] church, conveys no manner of pofleflion for the prefent,
thei-efore a purchafor, until he hath prefented, hath no afluai
feifni whereon to ground a writ of right s. Thus fl:ood the
common law.
But bifiiops, in antient times, either by carelefihefs or
collufion, frequently inftituting clerks upon the prefentation
of ufurpers, and thereby defrauding the real patrons of their
right of pofleflion, it was in fubftance enabled by ftatute
Wefl:m. 2. 13 Edw. I. c. 5. 2. that if a pofleflbry adlion be
brought within fix months after the avoidance, the patron fliall
(notwithft:anding fuch ufurpation and inftimtion.) recover that
very prefentation ; which gives back to him the feifin of the
advowfon. Yet flill, if the true patron omitted to bring his
a<lion within fix months, the feifin was gained by the ufurper,
and the patron to recover it was driven to the long and ha-
zardous procefs of a writ of right. To remedy which it was
farther enacted by fl:atutc 7 Ann. c. iB. that no ufurpation
(hall difplace the efl:ate or Interefl of the patron, or turn it to
a mere right ; but that the true patron may prefent upon the
next avoidance, as if no fuch ufurpation had happened. So
that the title of ufurpation is now much narrowed, and the
law fl:ands upon this reafonablc foundation : that If a ft;ranger
iifurps my prefentation, and I do not purfue my right within
fix months, I fliall lofe that turn without remedy, for the
peace of the church, and as a punifliment for my own ne-
gligence ; but that turn is the only one I fliall lofe thereby.
Ufurpation now gains no right to the ufurper, with regard to
any future avoidance, but only to the- prefent vacancy : it
r. N. B. 30. ' UU. 36. e I Inft. 357.
cannot
Gh. i6. Wrongs. 244
cannot indeed be remedied after fix months are paft ; but^
during thofe fix months, it is only a fpecies of difturbance.
Disturbers of a right of advowfon may therefore be
thefe three perfons ; the pfeudo-patron, his clerk, and the
ordinary : the pretended patron, by prefenting to a church
to which he has no right, and thereby making it litigious or
difputable ; the clerk, by demanding or obtaining inftitution,
which tends to and promotes the fame inconvenience ; and [ 245 3
the ordinary, by refufing to admit the real patron's clerk, or
admitting the clerk of the pretender. Thefe difturbances are
vexatious and injurious to him who hath the right : and there-
fore, if he be not wanting to himfelf, the law (befides the writ
of right of advowfon i which is a final and conclufive remedy}
hath given him two inferior poflefTory actions for his relief;
an afiife oi darrein prefentment, and a writ oi quare impedit ;
in which the patron is always the plaintiff, and not the clerk.
For the law fuppofes the injury to be offered to him only, by
obftruting or refufing the admiffion of his nominee ; and not
to the clerk, who hath no right in him till inftitution, and
of courfe can fuffer no injury.
I. An afTife of darrein prefentment^ or lafl prefentatlon,
Jies when a man, or his anceftors,- under whom he claims,
have prefented a clerk to a benefice, who is inftituted ; and
afterwards upon the next avoidance a ftranger prefents a
clerk, and thereby difturbs him that is the real patron. In
which cafe the patron (hall have this writ ^ directed to the
{heriff to fummon an affife or jury, to inquire who was the
laft patron that prefented to the church now vacant, of which
the plaintiff complains that he is deforced by the defendant :
and, according as the afTife determines that queftion, a writ
Ihall iffue to the bifhop ; to infiitute the clerk of that patron,
in whofe favour the determination is made, and alfo to give
damages, in purfuance of ftatute Weftm. 2. 13 Edw. I. c. 5.
This queftion, it is to be obferved, was, before the ftatute
* F.N. B, 31.
7 Ann.
S45 Private Book III.
7 Ann. before-mentioned, entirely conclusive, as between the
patron or' his heirs and a ftranger : for, till then, the full
pofleffion of the advowfon was in him who prefented laft and
his heirs : unlefs, fince that prefentation, the clerk had been
cviled within fix months, or the rightful patron had recover-
ed the advowfon in a writ of right ; which is a title fuperior
to all others. But that ftatute having given a right to any
perfon to bring a quare impedity and to recover (if his title be
[[ 246 ] good) notwithftanding the laft prefentation, by vi^homfoever
made : aflifes of darrein prefentment^ now not being in any
wife conclufive, have been totally difufed, as indeed they
began to be before ; a quare impedit being a more general,
and therefore a more ufual aftion. For the aflife of darrein
prefentment lies only where a man has an advow^fon by de-
fcent from his anceftors ; but the writ of quare impedit is
equally remediable whether a man claims title by defcent or
by purchafe '.
2. I PROCEED therefore, fecondly^ to Inquire Into the
nature "^ of a writ of quare impedit^ now the only aftion ufed
in cafe of the difturbance of patronage : and fhall firft premifc
the ufual proceedings previous to the bringing of the writ.
Upon the vacancy of a living the patron, we know, is
I bound to prefent within fix calendar months *, otherwife it
will lapfe to the bifhop. But if the prefentation be made
within that time, the bifliop is bound to admit and inftitute
the clerk, if found fufhcient"*; unlefs the church be full,
or there be notice of any litigation. For if any oppofition be
intended, it is ufual for each party to enter a caveat with the
bifhop, to prevent his inftitution of his antagonift's clerk.
An inftitution after a caveat entered is void by the ecciefiafti-
cal law " ; but this the temporal courts pay no regard to,
and look upon a caveat as a mere nullity . But if two pre-
fentatlons be offered to the biftiop upon the fame avoidance.
' ainft. 355. " See book I. ch. ii.
Ji See Bofwell's cafe, 6 Rep. 48. " X Burn. 207.
See hook II. ch. j8. f I RoU. Rep. 191.
the
Ch. i6. Wrong s,' 24^
the church is then faid to become litigious; and, if nothing
farther be done, the bifhop may fufpend the admiflion of
either, and fufFer a lapfe to incur. Yet if the patron or clerk
on either fide requeft him to award a jus patrotiatus, he is
bound to do it. A jus patrotiatus is a commiflion from the
bifhop, direfled ufually to his chancellor and others of com-
petent learning : who are to fummon a jury of fix clergymen
and fix laymen, to inquire into and examine who is the
rightful patron P ; and if, upon fuch inquiry made and certi- [ 247 3
ficate thereof returned by the commiflioners, he admits and
inftitutes the clerk of that patron whom they return as the
true one, the bifhop fecures himfelf at all events from being
a difturber, whatever proceedings may be had afterwards in
the temporal courts.
The clerk rcfufed by the biflhop may alfo have a remedy
againft him in the fpiritual court, denominated a duplex que-
rela ' : which is a complaint in the nature of an appeal from
the ordinary to his next immediate fuperior ; as from a bifhop
to the archbifhop, or from an archbiftiop to the delegates :
and if the fuperior court adjudges the caufc of refufal to be
infufficient, it will grant inftitution to the appellant.
Thus far matters may go on In the mere ecclefiaftical
courfe i but in contefted prefentations they feldom go fo far:
for, upon the firft delay or refufal of the bifhop to admit his
clerk, the patron ufually brings his writ of quare itnpedit
againft the bifhop, for the temporal injury done to his pro-
perty, in difturbing him in his prefentation. And, if the
delay arifes from the bifhop alone, as upon pretence of inca-
pacity, or the like, then he only is named in the writ ; but
if there be another prefentation fet up, then the pretended
patron and his clerk are alfo joined in the alion ; or it may
be brought againft the patron and clerk, leaving out the bi-
fhop ; or againfl the patron only. But it is moft advifeablc
to bring it againft all three : for if the bifhop be left out, and
X Burn i6, 17. ^ Ibid. UJ.
Vol. III. T the
247 Private Book IIL
the fuit be not determined till the fix months arc paft, the
bifliop is entitled to prefent by lapfe ; for he is not party to
the fuit"^ : but, if he be named, no lapfe can poflibly accrue
till the right is determined. If the patron be left out, and the
writ be brought only againfl the bifhop and the clerk, the
fuit is of no effel, and the writ fhall abate * ; for the right
of the patron is the principal queftion in the caufc '. If the
r 248 ] clerk be left out, and has received inftitution before the alion
brought (as is fometimes the cafe), the patron by this fuit may
recover his right of patronage, but not the prefent turn ; for
he cannot have judgment to remove the clerk, unlefs he be
made a defendant, and party to the fuit, to hear what he can
allege againfl it. For which reafon it is the fafer way to in-
fert all three in the writ.
The writ of quare impedit commands the difturbers, the
bifhop, the pfeudo-patron, and his clerk, to permit the plaintiff
to prefent a proper perfon (without fpecifying the particular
clerk) to fuch a vacant church, which pertains to his patron-
age ; and which the defendants, as he alleges, do obflruft ;
and unlefs they fo do, then that they appear in court to fhew
the reafon why they hinder him.
Immediately on the fulng out of the ^uare itnpedit, if
the plaintiff fufpels that the bifhop will admit the defend-
ant's or any other clerk, pending the fuit, he may have a
prohibitory writ, called a ne admittas ^' ; which recites tlie
contention begun in the king's courts, and forbids the bifhop
to admit any clerk whatfoever till fuch contention be deter-
mined* And if the bifhop doth, after the receipt of this
writ, admit any perfon, even though the patron's right may
have been found in zjure patronatuSy then the plaintiff, aftei"
he has obtained judgment in the quare impedit, may remove
the incumbent, if the clerk of a flranger, by writ oi fcire
facias^: and (hall have a fpecial adion againfl the bifhop.
called!
' Cro. Jac. 93,
F. N. B. 32.
Hob. 316.
* Ibid. 37.
' 7 Rep. 35.
" 2 Sid. 9/j,
Ch. 16. Wrongs. 248
called a quare Ificumhravit, to recover the prefentation, and
alfo fatisfailion in damages for the injury done him by in-
cumbering the church with a clerk, pending the fuit, and
after the ne admittas received y. But if the bi(hop has in-
cumbered the church by inftituting the clerk, before the ne
admittas iffiied, no quare inciimbravit lies ; for the bifhop
hath no legal notice, till the writ of ne admittas is ferved upon
him. The patron is therefore left to his quare impedit mere- [ 24p ]
ly ; which, as was before obferved, now lies (fmce the ftatute
of Weflm. 2.) as well upon a recent ufurpation within fix
months part, as upon a diilurbance without any ufurpatioa
had.
In the proceedings upon a quare impeditf the plaintifF
mufl: fet out his title at length, and prove at leaft one pre-
fentation in himfelf, his ancefliors, or thofe under whom he
claims ; for he mud recover by the ftrength of his own
right, and not by the weaknefs of the defendant's ^ : and he
mufl: alfo (hew a difturbance before the adlion brought ^.
Upon this the biftiop and the clerk ufually difclaim all title :
fave only, the one as ordinary, to admit and inftitute ; and
the other as prefentee of the patron, who is left to defend his
own right. And, upon failure of the plaintiff in making out
his own title, the defendant is put upon the proof of his, in
order to obtain judgment for himfelf, if needful. But if the
right be found for the plaintiff, on the trial, three farther
points are alfo to be inquired ; 1. If the church be full ; and,
if full, then of whofe prefentation : for if it be of the de-
fendant's prefentation, then the clerk is removeable by writ
brought in due time. 2. Of what value the living is : and
this in order to aflefs the damages which are direiled to be
given by the ftatute of Weftm. 2. 3. In cafe of plenarty upon
an ufurpation, whether fix calendar * months have palted
between the avoidance and the time of bringing the aftion :
for then it would not be within the ftatute, which permits an
ufurpation to be deveftcd by a quare impedit, brought infra
r F. N.B. 42. Hob. 199.
Viugh 7, 8. - i Lift. 361.
T 2 tempus
249
Private Book IIL
Umpus femejlre . So that plenarty is dill a fufficient bar in an
action of quare impedity brought above fix months after the
vacancy happens ; as it was univcrfally by the common law,
however early the adlion was commenced.
If it be found that the plaintiff hath the right, and hath
commenced his aftion in due time, then he Ihall have judg-
250 ] ment to recover the prefentation ; and, if the church be full
by inftitution of any clerk, to remove him : unlefs it were
filled pendente lite by lapfe to the ordinary, he not being party
to the fuit ; in which cafe the plaintiff lofes his prefentation
pro hac vice^ but fhall recover two years' full value of the
church from the defendant the pretended patron, as a fatif-
faclion for the turn loft by his difturbance : or, in cafe of in-
folvency, the defendant fhall be imprifoned for two years '^.
But if the church remains ftill void at the end of the fuit,
then whichever party the prefentation is found to belong to,
whether plaintiff or defendant, fliall have a writ direled to
the bifhop ad admittenditm clericum '', reciting the judgment
of the court, and ordering him to admit and iaftitute the clerk
of the prevailing party ; and, if upon this order he docs not
admit him, the patron may fue the bilhop in a writ of quarc
non admifit , and recover ample fatisfadlion in daniages.
Besides thefe pofleffory alins, there may be alfo had (as
hath before been incidentally mentioned) a writ of right of
ddvonvfotiy which refembles other writs of right : the only
diftinguifliing advantage now attending it, being, that it is
more conclulive than a qtmre impedit ; fince to an action of
quare impedit a recovery had in a writ of right may be pleaded
in bar.
There is no limitation with regard to the time within
which any actions touching advowfons are to be brought ; at
leaft none later thj^n the times of Richard I. and Henry III. :
for by ftatute i Mar. ft. 2. c. 5. the ftatute of limitations,
32 Hen. VIII. c. 2. is declared not to extend to any writ of
Stat. Weftm. a. i3Edw. I, c. 5. 3. 'F.N.B. 47.
* F. N. B. j8.
light
Ch. i6. Wrongs. 250
right of advowfon, quare impedit, or affife of darrein prefenU
tnent, or jus fatronatns. And this upon very good reafon ;
becaufe it may very eafily happen that the title to an advowfon
may not come in queflion, nor the right have opportunity to
be tried, within fixty years ; which is the longeft period of
limitation afligned by the ftatute of Henry VIII. For fir
Edward Coke ^ tells us, that there was a parfon of one of his
churches, that had been incumbent there above fifty years ; [ 25 1 ^
nor are inftances wanting wherein two fucceflive incumbents
have continued for upwards of a hundred years s. Had
therefore the laft of thefe incumbents been the clerk of a
ufurper, or had been prefented by lapfe, it would have been
neceflary and unavoidable for the patron, in cafe of a difpute,
to have recurred back above, a century j in order to have Ihewn
a clear title and feifin by prefentation and admiffion of the
prior incumbent. But though, for thefe reafons, a limitation
is highly improper with refpecl only to the length of time ;
yet, as the title of advowfonsis, for want of fome limitation
rendered more precarious than that of any other hereditament,
(efpecially fince the ftatute of queen Anne hath allowed pof-
feifory actions to be brought upon any prior prefentation,
however diftant,) it might not perhaps be amifs if a limitation
were eftablifhed with refpel to the number of avoidances j or,
rather, if a limitation were compounded of the length of time
and the number of avoidances together : for inftance, if no
feifin were admitted to be alleged in any of thefe writs of
patronage, after fixty years and three avoidances were paft.
In a writ of ciuare impedit, which is almoft the only real
aclion that remains in common ufe, and alfo in the afllfe of
darrein prefentment, and writ of right, the patron only, and
not the clerk, is allowed to fue the dilturber. But, by vir-
tue of feveral afts of parliament '', there is one fpecies of
, prefentations, in which a remedy, to be fucd in the temporal
^ I Inft. 115. the latter in 1700, and died in 1751.
Two fucceflive Incumbents of the *" Stat. 3 Jac. I. c. 5. i W. & M.
fcftory of Chelsfield cum Farnborough c. 26. i Ann. ft. %, C. 14. 11 Geo.
in Kent, continued loi years; of JI c. 17.
nbo*] the former was admitted In 1 6 j9,
T 3 courts.
251 Private Book III.
courts, is put Into the hands of the clerks prefented, as well
as of the owners of the advowfon. I mean the prerentation
to fuch benefices as belong to Roman catholic patrons ; which,
according to their feveral counties, are vefted in and fecured
to the two univerfities of this kingdom. And particularly
by the ftatute of 12 Ann. ft. 2. c. 14. $ 4. a new method of
r 2"2 ] proceeding is provided; viz. that, befides the writs of qua re
. impedit^ which the univerfities as patrons are entitled to
bring, they, or their clerks, may be at liberty to file a bill
in equity again any perfon prefenting to fuch livings, and
difturbing their right of patronage, or his cejiuy que trujly or
any other perfon whom they have caufe to fufpccl ; in order
to compel a difcovery of any fecret trufts, for the benefit of
papifts, in evafion of thofe laws whereby this right of advow-
fon is vefted in thofe learned bodies : and alfo (by the ftatute
II Geo. II. c. 17.) to compel a difcovery whether any grant
or conveyance, faid to be made of fuch advowfon, were made
bona fide to a proteftant purchafor, for the benefit of protef-
tants, and for a full confideration j without which requifites
every fuch grant and conveyance of any advowfon or avoid-
ance is abfolutely null and void. This is a particular law, and
calculated for a particular purpofe : but in no iuftance but
this does the common law permit the clerk himfelf to interfere
in recovering a prefentation, cf which he is afterwards to
have the advantage. For befides that he has (as was before
obferved) no temporal right in him till after inftitution and
induction , and as he therefore can fuffer no wrong, is con-
fequently entitled to no remedy *, this exclufion of the clerk
from being plaintiff feems alfo to arife from the very great
honour and regard which the law pays to his facred funftion.
For it looks upon the cure of fouls as too arduous and im-
portant a taflc to be eagerly fought for by any ferious clergy-
man i and therefore will not permit him to contend openly
at law for a charge and truft, which it prefumes he under-
takes with diffidence.
But when the clerk is in full pofllflion of the benefice,
the law gives him the fame poffeflbry remedies to recover
his glebe, his rents, his tithes, and other ccclefiaftical dues,
% by
Ch. 1 6. Wrongs. 258
by writ of entry, aflife, ejelment, debt, or trefpafs, (as
the cafe may happen,) which it furniflies to the owners
of lay property. Yet he ftiall not have a writ of riglit, nor
fuch other fimilar writs as are grounded upon the mere
right; becaufe he hath not in him the entire fee and right*:
but he is entitled to a fpecial remedy called a writ of juris
utrum, which is fometimes filled the parfon's writ of right'',
being the higheft writ which he can have'. This hes for a [ 253 3
parfon or a prebendary at common law, and for a vicar by
ftatutc 14 Edw. III. c. 17. and is in the nature of an alTife, to
inquire whether the tenements in queftion arc fratikalmoiga
belonging to the church of the demandant, or elfe the lay fee
of the tenant "". And thereby the demandant may recover
lands and tenements, belonging to the church, which were
aliened by the predeceflbr ; or of which he was difleifed j or
which were recovered againft him by verdict, confelhon, or
default, without praying in aid of the patron and ordinary ;
or on which any perfon has intruded fmce the predeceflbr's
death". But fince the rellraining ftatute of 13 Eliz. c. 10.
whereby the alienation of the predeceflbr, or a recovery fuf-
fered by him of the lands of the church, is declared to be ab-
folutely void, this remedy is of very little ufe, unlefs where the
parfon himfelf has been deforced for more than twenty
years ; for the fucceflbr at any competent time after his
acceflion to the benefice, may enter, or bring an ejedtment.
F. N. B. 49. Regiftr. 32.
"Booth. 221. F.N. B. 48,49.
F. N. B. 48. Booth. 211,
T4
54 Private Book III.
CHAPTER THE SEVENTEENTH.
OF INJURIES PROCEEDING FROM,
OR AFFECTING, THE CROWN.
HAVING in the nine preceding chapters confidered the
injuries, or private wrongs, that may be offered by one
fubjedl to another, all of which are redrefled by the command
and authority of the king, fignified by his original writs re-
turnable in his feveral courts of juftice, which thence derive
a jurifdidlion of examining and determining the complaint ;
I proceed now to inquire into the mode of redrefhng thofe
injuries to which the crown itfclf is a party : which injuries
are either where the crown is the aggreflbr, and which there-
fore cannot without a folecifm admit of the fame kind of
remedy * ; or elfe is the fufFerer, and which then are ufually
remedied by peculiar forms of procefs, appropriated to the
royal prerogative. In treating therefore of thefe, we will
confider firft, the manner of redrefTmg thofe wrongs or in-
juries which a fubjel may fuffer from the crown, and then
of rcdreffing thofe which the crown may receive from a
fubjeit.
I. That the king *can do no wrong, is a neceflary and
fundamental principle of the Englifh conftitution : meaning
only, as has formerly been obferved '', that, in the firft place,
whatever may be amifs in the conduct of public affairs is not
IJro, Abr. t. petit'm, jz. /, prerogativ. z, J Book I< ch- 7. pag. Z43 246.
p charge-
Ch. 17. Wrongs. 255
chargeable perfonally on the king; nor is he, but his minifters,
accountable for it to the people : and, fecondly, that the pre-
rogative of the crown extends not to do any injury ; for,
being created for the benefit of the people, it cannot be ex-
erted to their prejudiced Whenever therefore it happen*,
that, by mifinformation, or inadvertence, the crown hath been
induced to invade the private rights of any of it's fubje6ts,
though no adlion will lie againft the fovereign*^, (for wha
ihall command the king= ?; yet the law hath furnifhed the
fubje(9: with a decent and refpelful mode of removing that
invafion, by informhig the king of the true (late of the matter
in difpute; and, as it prefumes that to hiow of any injury and
to redrefs it are infeparable in the royal bread, it then ifiues as
of courfe in the king's own name, his orders to his judges to
do juftice to the party aggrieved.
The diftance between the fovereign and his fubjels is fuch,
that it rarely can happen that any perfonal injury can imme-
diately and direftly proceed from the prince to any private
man : and, as it can fo feldom happen, the law in decency
fuppofes that it never will or can happen at ail ; becaufe it
feels itfelf incapable of furnifhing any adequate remedy,
without infringing the dignity and deftroying the fovereignty
of the royal perfon, by fetting up fome fuperior power with
authority to call him to account. The inconveniency there-
fore of a mifchief that is barely poflible, is (as Mr. Locke has
obferved ^) well recompenfed by the peace of the public and
fecurity of the government, in the perfon of the chief magi-
ftratc being fet out of the reach of coercion. But injuries to
the rights oi property can fcarcely be committed by the crown
without the intervention of it's officers -, for whom the law
in matters of right entertains no refpecl or delicacy, but
furnifhes various methods of detecting the errors or raifcon-
dut of thofe agents, by whom the king has been deceived,
and induced to do a temporary injuftice.
* Plowd. 487. Finch. L. 83.
* Jenkins. 78. ]f on Gov. p, z. 105,
The
256 Private Book III.
The common law methods of obtaining poflefllon or re-
ftltution from the crown, of either real or perfonal property,
are, i. '^y petition de droit y or petition of right, which is faid
to owe it's original to king Edward the firft s. 2. By monjirans
de droit, manifeftation or plea of right: both of which may be
preferred or profecuted either in the chancery or exchequer ^,
The former is of ufe, where the king is in full pofleffion of
any hereditaments or chattels, and the petitioner fuggefts fuch
a right as controverts the title of the crown, grounded on
fals difclofed in the petition itfelf ; in which cafe he mull be
careful to ftate truly the whole title of the crown, otherwife
the petition fhall abate ' : and then, upon this anfwer being
cndorfed or underv/ritten by the Ving, foit droit fait al partie,
(let right be done to the party j,) a commiffion (hall ifl'uc
to inquire of the truth of this fuggeftion ^ : after the return
of which^ the king's attorney is at liberty to plead in bar ;
and the merits fhall be determined upon iffue or demurrer,
as in fuits between fubjedi and fubjel:. Thus, if a diffeifor
of lands, which are holden of the crown, dies feifed with-
out any heir, whereby the king is prima facie entitled to the
lands, and the pofleffion is caft on him either by inqueft of
office, or by al of law without any office found 5 now the
difl"eifee ffiall have remedy by petition of right, fuggeftipg
the title of the crown, and his own fuperlor right before the
difieifin made K But where the right of the party, as well as
the right of the crown, appears upon record, there the party
fhall have mon/irans de droity which is putting in a claim cf
right grounded on fads already acknowleged and eilablifh*
ed, and praying the judgment of the court, whether upon
thsfe fals the king or the fubjefl hath the right. As if, in
the cafe before fuppofed, the whole fpecial matter is found
by an inqueft of office^ (as well the difleifm, as the dying
without any heir,) the party grieved fhall have monjirans de
droit at the common law ". But as this feldom happens, and
Bro Abr. t, frirog, % Fitz. Ahr, j Ftat. Tr..\ii. J34.
/. trror. 8. k Skin. 608. Raft. Entr. 461.
k Skin. 609. I Bra. Abr. t.fttithn. 20. 4 Rep. 58.
Finch, L. Z56. .*> 4 Rep. 55.
the
Ch. 17. Wrong s. 257
the remedy by petition was extremely tedious and expenfive,
that by moujtrans was much enlarged and rendered almoft
univerfal by fcveral ftatutes, particularly 36 Edw. III. c. 13.
and 2 & 3 Edw. VI. c. 8. which alfo allow inqul'fitions of
office to be traverfed or denied, wherever the right, of a fub*
jet is concerned, except in a very few cafes ". Thefe pro-
ceedings are had in the petty bag office in the court of chan-
cery : and, if upon either of them the right be determined
againft the crown, the judgment is, quod matms domini regi^
amoveantur et pojfejfio rejlituatur petetitiy Jalvo jure domini
regis^ i which lail claufe is always added to judgments againfl
the kinj^P, to whom no laches is ever imputed, and whofc
right (till fome late ftaiutes"') was never defeated by any
limitation or length of time. And by fuch judgment the
crown is inflantly out of pofleflion ^ \ fo that there needs not
the indecent interpofition of his own ofBcers to transfer the
feifin from the king to the party aggrieved.
II. The methods of redrefRng fuch injuries as the crown
may receive from the fubjel are,
I, By fuch ufual common law adlions, as are confiflent
with the royal prerogative and dignity. As therefore the king,
by reafon of his legal ubiquity, cannot be diflcifed or difpof-
fcfled of any real property which is once vefted in him, he
can maintain no alion which fuppofes a difpoffeflion of the
plainti^'; fuch as an aflife or an ejcillment* : but he may bring
a quare impedit S which always fuppofes the complainant to be
felfed or poffefled of the atlvowfon : and he may profccute this
writ, like every other by him brought, as well in the king's
bench" as the common pleas, or in whatever court he pleafes.
So too, he may bring an action of trefpafs for taking away his
goods ; but fuch adlions are not ufual (though in (Iricinefs
maintainable) for breaking his clofe, or other injury done
upon his foil or poflcflion ^. It would be equally tedious
" Skin. 6o8. Bro. Abr. t. prerogative. 89.
2 Inft. 695. Raft. Entr. 463. * F. N. B. 32.
f Finch. L. 460. " Dyierfiiede courtet. c. bank It rey,
s 21 Jac. I. c. 2. 9 Geo. UI. c. 16. * Bro. Abr, t.frereg. 130. F.N.3. 90.
' Finch. L. 459, Year book. 4 Hen. IV. 4.
and
<258 Private Book III;
and difficult, to run through every minute diftinftion that
might be gleaned from our antient books with regard to this
matter ; nor is it in any degree nccefTary, as much eafier
and more efFetual remedies are ufually obtained by fuch
prerogative modes of proccfs, as are peculiarly confined to
the crown,
2. Such is that of inquifttion or hiquejl of office : v/hich is
an inquiry made by the king's officer, his iheriff, coroner,
or efcheator, virtute officii, or by writ to them fent for that
purpofe, or by commiffioners fpecially appointed, concerning
any matter that entitles the king to the pofleffion of lands or
tenements, goods or chattels ". This is done by a jury of
no determinate number; being either twelve, or lefs, or
more. As, to inquire, whether the king's tenant for life
died feifed, whereby the reverfion accrues to the king : whe-
ther A, who held immediately of the crown, died without
heirs , in which cafe the lands belong to the king by efcheat :
whether B be attainted of treafon ; whereby his eftate is for-
feited to the crown : whether C, who has purchafed lands,
be an alien ; which is another caufe of forfeiture : whether
D be an idiot a nativitate j and therefore, together with his
lands, appertains to the cuftody of the king : and other quef-
tions of like import, concerning both the circumftances of
the tenant, and the value or identity of the lands. Thefe
inquefts of office were more frequently in praftice than at
prefent, during the continuance of the military tenures
amongft us : when, upon the death of every one of the
king's tenants, an inqueft of office was held, called an f-
quifttio pojl mortem, to inquire of what lands he died feifed,
who was his heir, and of what age, in order to entitle the
king to his marriage, ward (hip, relief, primer-feijtriy or other
advantages, as the circumftances of the cafe might turn out.
To fuperintend and regulate thefe inquiries the court of wards
and liveries was inftituted by ftatute 32 Hen. VIII. c. 46.
which was aboliffied at the reftoration of king Charles the
fecond, together with the oppreffive tenures upon which it
was founded,
Finch. L. 343, 4, 5.
WiTH
Ch. 17. Wrongs. 259
With regard to other matters, the Inquefls of office dill
remain in force, and are taken upon proper occafions", being
extended not only to lands, but alfo to goods and chattels
perfonal, as in the cafe of wreck, treafure- trove, and the
like ; and efpecially as to forfeitures for offences. For every
jury which tries a pian for treafon or felony, every coroner's
inqueft that fits upon a felo de fe, or one killed by chance-
medley, is, not only with regard to chattels, but alfo as to real
intcrefts, in all refpefts an inqueft of ofHce : and if they find
the treafon or felony, or even the flight of the party accufed,
(though innocent) the king is thereupon, by virtue of this
office found, entitled to have his forfeitures ; and alfo, in the
cafe of chance-medley, he or his grantees are entitled to fuch
things by way of deodand, as have moved to the death of the
party.
These Inquefts of office were devifed by law, as an authen-
tic means to give the king his right by folemn matter of re-
cord i without which he in general can neither take, nor part
from any thing ^. For it is a part of the liberties of Eng-
land, and greatly for the fafety of the fubjedt:, that the king
may not enter upon or feize any man's pofleffions upon bare
furmifcs without the intervention of a jury*. It is however
particularly enabled by the ftatute 33 Hen. VIII. c. 20. that,
in cafe of attainder for high treafon, the king (hall have the
forfeiture inftantly without any inquifition of office. And, aS
the king hath (in general) no title at all to any property of this
fort before office found, therefore by the ftatute 18 Hen. VI.
c. 6, it was enabled, that all letters patent or grants of lands
and tenements before office found, or returned into the ex-
chequer, fhall be void. And, by the bill of rights at the
revolution, i W. & M. ft. 2. c. 2. it is declared, that all
grants and promifes of fines and forfeitures of particular per-
fons before conviftion (which is here the inqueft of ofhce)
arc illegal and void ; which indeed was the law of the land in
the reigu of Edward the third *.
y Finch. L, 82. 2 Inft. 48.
* Cilb. bifi. exch. 132. Hob. 347.
With
nSo Private Book III,
With regard to real propertv, if an office be found for
the king, it puts him in immediate pofleffion, without the
trouble of a formal entry, provided a fubjct in the like cafe
v/ould have had a right to enter ; and the king fhall receive
all the mefne or intermediate profits from the time that his
title accrued^. As on the other hand, by the articuli fuper
cartas'^ y if the king's efcheator or (herifFfeife lands into the
king's hand without caufe, upon taking them out of the
king's hand again, the party fhall have the mefne profits
reftored to him.
In order to avoid the poffelnon of the cfown, acquired by
the finding of fuch office, the fubjefl may not only have his
petition of right, which difclofes new fals not found by the
office, and his monjlrans de droits which relies on the fadls
as found ; but alfo he may (for the moft part) traverfe or
deny the matter of fat itfelf, and put it in a courfe of trial
by the common law procefs of the court of chancery : yet
ftill, in fome fpecial cafes, he hath no remedy left but a
mere petition of right "*. Thefe traverfes, as well as the
tnonjlrans de droit, were greatly enlarged and regulated for
the benefit of the fubjeft, by the ftatutes before-mentioned,
and others . And in the traverfes thus given by ftatute,
which came in the place of the old petition of right, the
party traverfing is confidered as the plaintiff fj and mud
therefore make out his own title, as well as impeach that
of the crown, and then fiiall have judgment qiiod manus do-
mini regis amoveantur, isfc.
3. Where the crown hath unadvifedly granted any thing
by letters patent, which ought not to be granted s, or where
the patentee hath done an a<Sl that amounts to a forfeiture of
r 261 1 the grant'', the remedy to repeal the patent is by writ o{ fcire
facias in chancery '. This may be brought either oil the part
^ Finch. L. 325, 326. ' Law of ttifi pr'ms. aoi, 20a.
< i8Edw. I. ft. 3. c. 19. See boot il, ch. ai.
* Finch. L. 324. * Dyer. 198,
Stat. 34Edw. III. c. 13. 36 Edw. ' 3 Lev. 2zo, 4 Lift. 8S.-
111. c. 13. 2& 3 Edw. 71. c. 8.
o
Ch. 17. Wrongs* 261
of the king, in order to refume the thing granted ; or, if the
grant be injurious to a fubjeft, the king is bound of right to
permit him (upon his petition) to ufe his royal name for
repealing the patent in 2ifcire facias ^, And fo alfo, if, upon
office untruly found for the king, he grants the land over to
another, he who is grieved thereby, and traverfes the office
itfelf, is entitled before iffue joined to tl fcire facias zgzm^ the
patentee, in order to avoid the grant'.
4. An information on behalf of the crown, filed in the ex-
chequer by the king's attorney general, is a method of fuit
for recovering money or other chattels, or for obtaining fa-
tisfafiion in damages for any perfonal wrong"" committed in
the lands or other pofleffions of the crown. It differs from
an information filed in the court of king's bench, of which
we (hall treat in the next book ; in that this is inftituted to
redrefs a private wrong, by which the property of the crown
is afFe<^ed ; thai is calculated to punifh fome public wrong,
or heinous mifdemefiior in the defendant. It is grounded on
no writ under feal, but merely on the intimation of the king's
officer the attorney- general, who "gi;es the court to under-
*' ftand and be informed of" the matter in queflion : upon
which the party is put to anfwer, and trial is had, as in fuita
between fubjcl and fubjeft. The moft ufual informations
are thofe of intrujion and debt : intrufton, for any trefpafs com-
mitted on the lands of the crown ", as by entering thereon
without title, holding over after a leafe is determined, taking
the profits, cutting down timber, or the like ; and debt^ upon
any contraft for monies due to the king, or for any forfeiture
due to the crown upon the breach of a penal ftatute. This is
mofl: commonly ufed to recover forfeitures occafioned by tranf-
greffing thofe laws, which arc enadled for the eftablifhment
and fupport of the revenue : others, which regard mere mat- [ 262 j
ters of police and public convenience, being ufually left to
be inforced by common informers, in the qui tarn informa-
^aVentr 344. " Cro. Jac. ais. I Loo. 48. Sa
* Bro. Abr. t. fcWefadas. 69 185. vil, 49.
* Mor. J75.
tiona
262 Private Book III.
tions or afllons, of which we have formerly fpoken ". But
after the attorney general has informed upon the breach of a
penal law, no other information can be received p. There
is alfo an information in rem^ when any goods are fuppofed
to become the property of the crown, and no man appears to
claim them, or to difpute the title of the king. As antiently
in the cafe of treafure trove, wrecks, waifs, and eftrays,
feifed by the king's ofncer for his ufe. Upon fuch feifure an
information was ufuaily filed in the king's exchequer, and
thereupon a proclamation was made for the owner (if any)
to come in and claim the effefts ; and at ti.c fame time there
ifflied a commiflion of appralfement to value the goods in the
cfficer*s hands : after the return of which > and a fecond pro-
clamation had, if no claimant appeared, t!ie goods were fup-
pofed derelift, and condemned to the ufe of the crown "J.
And when, in later times, forfeitures of the goods themfelves,
as well as perfonal penalties on ^he parties, were inlliled by
aft of parliament for tranfgrfiTions againft the laws of the
cuftoms and excife, the fame nrocefs was adopted in order
to fecure fuch forfeited goods for the public ufe, though the
offender himfclf had el'caped the reach of juftice.
5, A WRIT of quo nvarranto Is in the nature of a writ of
right for the kinj.s againft hini who claims or ufurps any
office, franchife, or liberty, to inquire by what authority he
fupports his claim, in order to determine the right ^ It lies
alfo in cafe of non-ufer or long negledl of a franchife, or
mif-ufer or abufe of it ; being a writ commanding the de-
fendant to (hew by what warrant he exercifes fuch a fran-
chife, having never had any grant of it, or having forfeited
it by neglel or abufe. This was originally returnable before
the king's juftice at Weftminfter * ; but afterwards only
r 263 ] before the jullices in eyre, by virtue of the ftatutes of quo
warranto^ 6 Edw. I. c. T. and 18 Edw. I. ft. 2.'; but fince
thofe juftices have given place to the king's temporary com-
midioners of aflize, the judges on the feveral circuits, this,
' See pag. 16a. ' finch, L. 322. 2 Inft. 282.
P Hard. 2Ci. ' Old Ndt, Bnv. fol, 107. edit 1534.
Gillj* hift. of exch. ch. 13^ . 2 inft. 498. Raft. Entr. S4o.
branch
Ch. If, Wrongs. 25j
branch of the ftatutes hath loft it's efFel " ; aad writs of qua
warranto (if brought at all) muft now be profecuted and de-
termined before the king's juftices at Wellminfter. And in
cafe of judgment for the defendant, he Ihall have an allow-
ance of his franchifei but in cafe of judgment for the king,
for that the party is entitled to no fuch franchife, or hath
difufed or abufed it, the franchife is either feifed into the king's
hands, to be granted out again to whomever he (hall pleafe ;
or, if it be not fuch a franchife as may fubfift in the hands of
the crown, there is merely judgment of oujler^ to turn out
the party who ufurped it *.
The judgment on a writ of quo nvarranto (being in the
nature of a writ of right) is final and conclufive even againft
the crown *. Which, together with the length of it's pro-
cefs, probably occafioned that difufe into which it is now
fallen, and introduced a more modern method of profecution,
hy information filed in the court of king's bench by the attor-
ney-general, in the nature of a writ of quo warranto : wherein
the procefs is fpeedier, and the judgment not quite fo decifive.
This is properly a criminal method of profecution, as well
to punifli the ufurper by a fine for the ufurpation of the fran-
chife, as to ouft him, or feife it for the crown : but hath
long been applied to the mere purpofes of trying the civil
right, feifing the franchife, or culling the wrongful pofleflbr :
the fine being nominal only.
During the violent proceedings that took place in the lat-
ter end of the reign of king Charles the fecond, it was anaong
other things thought expedient to new-model moft of the cor-
poration towns in the kingdom ; for which purpofe many of
thofe bodies were perfuaded to furrender their charters, and [ 26^ 3
informations in the nature of quo ivarranto were brought
againft others, upon a fuppofed, or frequently a real, for-
feiture of their franchifes by negledt or abufe gf them. And
the confequence waS| that the liberties of moft of them were
2 Inft. 498. < I SUd. 86. 2 Shew. 47. xi Med.
' Cro. Jac. 259. I Show. 8o. 2154
Vol. III. U feifcd
2j54 Private Book III,
feifed Into the hands of the king, who granted them frefh
charters v/Ith fuch alterations as were thought expedient ;
and, during their ftatc of anarchy, the crown named all their
magiftrates. This exertion of power, though perhaps m
fummojure it was for the mod part ftrilly legal, gave a gteat
and juft alarm ; the new-modelling of all corporations being
a very large ftride towards eftablifhing arbitrary power ; and
therefore it was thought neceflary at the revolution to bridle
this branch of the prerogative, at leaft fo far as regarded the
metropolis, by ftatute 2 W. & M. c. 8, which enacts, that
the franchifes of the city of London fliall never hereafter be
feifed or forejudged for any forfeiture or mifdcmefnor what-
foever.
This proceeding is however now applied to the decifion
of corporation difputes between party and party, without any
intervention of the prerogative, by virtue of the ftatute 9 Ann.
o 20. which permits an information in nature of quo ivar-
ranto to be brought with leave of the court, at the relation of
any perfon defiring to profecute the fame (who is then ftiled
the relator) againft any perfon ufurping, intruding into, or
unlawfully holding any franchife or office in any city, bo-
rough, or town corporate ; provides for it's fpeedy determi-
nation } and direls that, if the defendant be convided^
judgment of oufter (as well as a fine) may be given againft
him, and that tlje relator ftiall pay or receive colls according
to the event of the fuit ( i ).
( 1 ) This ftatute, with regard to cofts, extends only to cafes
where the title of a perfon to be a corporate officer, as mayor,
bailiff, or freeman, J^ in queftion ; but an information to try the
right of holding a court is not within it, but ftands upon the com-
mon law only, and being a prpfecution in the name of the king,
no cofts are given, i Burr. 402.
The court of king's bench having a difcretionary power of
granting informations in the nature of qua warranto, had long ago
eflablifhed a general rule to guide their difcretion, 'viz. not to allow
in any cafe an information in i]ic nature of quo warrant a again fl a
perfon
Ch. ijr. Wrongs. 264
6. The writ of mandamus ^ is alfo made by the fame ftatute
Q Ann. c. 20. a moft full and effecSlual remedy, in the firft
place, for refufal of admiffion where a pcrfon is entitled to
an office or place in any fuch corporation ; and, fecondly,
for wrongful removal, when a perfon is legally poflefled.
Thefe are injuries, for which though redrcfs for the party in- f 16^ 1
terefted may be had by affife, or other means, yet as the fran-
chifes concern the public, and may affcl: the adminiilration
of jullice, this prerogative writ alfo iflues from the court of
king's bench ; commanding, upon good caufe fliewn to the
court, the party complaining to be admitted or reftored to
his office. And the ftatute requires, that a return be imme-
diately made to the firft writ of mandamus ; which return may-
be pleaded to or traverfed by the profecutor, and his anta-
gonift may reply, take iflue, or demur, and the fame pro-
ceedings may be had, as if an aiSlion on the cafe had been
brought, for making a falfe return : and, after judgment ob-
tained for the profecutor, he fhall have a peremptory writ of
mandamus to compel his admiffion or reftitution ; which lat-
ter (in cafe of an aftion) is effected by a writ of reftitution*.
y See pag. no. ^ 11 Rep. 79.
perfon wko had been twenty-years in the pofTeffion of his fianchlfe ;
but having reafon to confider this too extenfive a limit, they re-
folved upon a new rule, vi%. not to allow fuch an information
againll any perfon who had been fix years in poffeffion. 4 T. R.
24.
But the legiflature thinking this too fudden a change in the prac-
tlc^ of the court, and bccaufe it did not extend to informations
iilcd by the attorney-general, enafted by 32 Geo. III. c. 58. that
to any information in the nature of quo 'warranto, for the exercife
of any corporate office or franchife, the defendant might plead
that he had been in poffeffion of, or had executed, the office for
fix years or more. And that no defendant fliould be affe6led by'
any defeft in the title of the perfon from whom he derived his
right and title, if that perfon had been in the undlfturbed exercife
of bis office or franchife fm years previous to the filing of the in-
formation.
U2 So
ft55 Private Book III.
So that now the writ of mandamus, in cafes within this fta-
tute, is in the nature of an acSlion : whereupon the party
applying and fucceeding may be entitled to cofts, in cafe it
be the franchife of a citizen, burgefs, or freeman ' ; and alfo,
in general, a writ of error may be had thereupon ^.
This writ of mandamus may alfo be ifflied, in purfuance
of the ftatute 1 1 Geo. I. c. ^^ in cafe within the regular time
no elelion (hall be made of the mayor or other chief officer
of any city, borough, or town corporate, or (being made)
it fhall afterwards become void ; requiring the electors to
proceed to elelion, and proper courts to be held for admitting
and fwearing in the magiftrates fo refpeftively chofen.
We have now gone through the whole circle of civil in-
juries, and the redrefs which the laws of England have
anxioufly provided for each. In which the ftudent cannot
but obferve that the main difficulty which attends their dif-
cufiion arifes from their great variety, which is apt at our firft
acquaintance to breed a confufion of ideas, and a kind of
diftradtion in the memory : a difficulty Hot a little incrcafed
r 7.66 ] by the very immethodical arrangement, in which they are de-
livered to us by our antient writers, and the numerous terms
of art in which the language of our anceftors has obfcurcd
them. Terms of art there will unavoidably be in all fciences ;
the eafy conception and thorough comprehenfion of which
mud depend upon frequent and familiar ufe : and the more
fubdivided any branch of fcicuce is, the more terms muft be
ufed to exprefs the nature of thefe feveral fubdiviiions, and
mark out with fufficient precifion the ideas they are meant to
convey. But I truft that this difficulty, however great it
may appear at firft view, will flirink to nothing upon a nearer
and more frequent approach j and indeed be rather advanta-
geous than of any diflervice, by imprinting on the ftudent*$
mind a clear and di{linl notion of the nature of thefe feveral
remedies. And, fuch as it is, it arifes principally from the
Stat. la Geo. III. c. 21. * i P. Wins. 351.
excellence
Ch. 17. Wrongs. 266
excellence of oar EngUCi laws; which adapt their redrefj
exaliy to the circumltances of the injury, and do not furniflj
one and the fame alion for diflperent wrongs, which are im-
poffiblc to be brought within one and the fame defcription :
whereby every man knows what fatisfadlon he is entitled to
expel from the courts of juftice, and as little as poflibie is
left in the bread of the judges, whom the law appoints to ad-
niinifler, and not to prefcribe the remedy. And I may ven-
ture to affirm, that there is hardly a pofhble injury, that can
be offered cither to the perfon or property of another, for
which the party injured may not find a remedial writ, con-
ceived in fuch terms as are properly and Angularly adapted
to his own particular grievance.
In the feveral pcrfonal aliots which we have curforlly
explained, as debt, trefpafs, detinue, alion on the cafe,- and
the like, it Is eafy to obferve how plain, peifpicuous, and fim-
ple the remedy is, as chalked out by the antient common law.
In the methods prefcribed for the recovery of landed and other
permanent property, as the right is more intricate, the feodal
or rather Norman remedy by real aiftions is fomewhat mre
complex and difficult, and attended with fomc delays. And
Cnce, in order to obviate thofe difficulties, and retrench thofe
delays, we have permitted the rights of real property to be r 267 1
drawn into queftion in mixed or perfonal fuits, we are (it
muft be owned) obliged to have recourfe to fuch arbitrary
fiiSlions and expedients, that unlefs we had developed their
principles, and traced out their progrefs and hiftory, our
prefent fyflem of remedial jurifprudence (in refpel of landed
property) would appear the motl intricate and unnatural
that ever was adopted by a free and enlightened people.
But this ij;itrlcacy of our legal procefs will be found, when
attentively conGdered, to be or>e of thofe troublefome, but
not dangerous, evils, which have their root in the frame of
our coiiilitution, and which therefore can never be cured,
without hazarding every thing that is dear to us. In abfo-
lute governments, when new arrangements of property and
U 3 a gradual'
2^7 Private Book III.
a gradual change of manners have deflroyed the original
ideas, on which the laws were devifed and eftablilhed, the
' prince by his edi<Sb may promulge a new code, more Aiited
to the prefent emergencies. But when laws are to be framed
by popular aiTemblies, even of the reprefentative kind, it is
too Herculean a talk to begin the work of legiflation afrelh,
and extradl: a new fyftem from the difcordant opinions of
more than five hundred counfellors. A fingle legiflator or
an enterprizing fovereign, a Solon or Lycurgus, a Juftinian
or a Frederick, may at any time form a concife, and perhaps
an uniform, plan of juflice : and evil betide' that prefump-
tuous fubje^l who queftions it's wifdom or utility. But
who, that is acquainted with the difficulty of new-modelling
any branch of our flatute laws (though relating but to roads
or to parilh fettlements) will<conceive it ever feafible to alter
any fundamental point of the common law, with all it's ap-
pendages and confequents, and fet up another rule in it's
Head ? When therefore, by the gradual influence of foreign
trade and domeftic tranquillity, the fpirit of our military
tenures began to decay, and at length the whole fl:ru6lure
was removed, the judges quickly perceived that the forms
and delays of the old feodal actions (guarded with their fe-
veral outworks of eflbins, vouchers, aid-prayers, and a hun-
dred other formidable intrenchments) were ill fuited to that
r 268 ] more fimple and commercial mode of property which fuc-
ceeded the former, and required a more fpeedy decifion of
right, to facilitate exchange and alienation. Yet they wifely
avoided foliciting any great legiflative revolution in the old
eftabliftied forms, which might have been produlive of con-
fequences more numerous and extenfive than the moft pene-
\ trating genius could forefee ; but left them as they were, to
languiHi in obfcurity and oblivion, and endeavoured by a fe-
ries of minute contrivances to accommodate fuch perfonal
aftions, as were then in ufe, to all the moft ufeful purpofes
of remedial juftice : and where, through the dread of inno-
vation, they hefitated at going fo far as perhaps their good
fjEnfe would have prompted them, they left an opening for
the more liberal and enterprizing judge?, who have fate in
Gur
Ch. i;. Wrong s. i65'
our courts of equity, to (hew them their error by fupplying
the omiffions of the courts of law. And, fince the new ex-
pedients have been refined by the pradice of more than a
century, and are fufficiently known and underftood, they in
general anfwer the purpofe of doing fpeedy and fubftantial
jullice, much better than could now be efFeled by any^reat
fundamental alterations. The only difficulty that attends
them arifes from their filions and circuities ; but, when ouce
we have difcovered the proper clew, that labyrinth is eafily
pervaded. Our fyftem of remedial law refembles an old Go-
thic caftle, eredlcd in the days of chivalry, but fitted up for
a modern inhabitant. The moated ramparts, the embattled
towers, and the trophied halls, are magnificent and vene-
rable, but ufelefs, and therefore neglefted. The inferior-
apartments, now accommodated to daily ufe, are cheerful
and commodious, though their approaches may be wind-
ing and difficult.
In this part of our difquifitions I however thought it my
duty to unfold, as far as intelligibly I could, the nature of
thefe real alions, as well as of perfonal remedies. And this
not only becaufs they are ftill in force, ftill the law of the
land, though obfolete and difufed ; and may perhaps, in
their turn, be hereafter with fome neceflary correftions called
out again into common ufe ; but alfo becaufe, as a fenfible
writer has virell obferved% " whoever confiders how great a r 260 1
**' coherence there is between the feveral parts of the law,
" and how much the reafon of one cafe opens and depends
** upon that of another, will I prefume be far from thinking
** any of the old learning ufelefs, which will fo much con-
** duce to the perfect underftanding of the modern." And
befides I fhould have done great injuftice to the founders of
our legal conftitution, had I led the ftudent to imagine, that
the remedial inftruments of our law were originally contrived
in fo complicated a form, as we now prefent them to his view:
had I, for inflance, entirely paffed over the dlrel: and obvious
remedies by affifes and writs of entry, and only laid before
him the modern method of profecuting a writ of ejedment.
* Hawk, Abr. Co. Litt. pref,
U4
7o P n I y A T ? Book III.
CHAPTER THE EIGHTEENTH.
OF THE PURSUIT OF REMEDIES
BY ACTION; AND FIRST, OF THE
ORIGINAL WRIT.
HAVING, under the head of redrefs by fu'iis in courts^
pointed out in the preceding pages, in the firft place,
the nature and feveral /pedes of courts of jufticc, wherein
remedies are adminiftered for all forts of private wrongs ; and,
in the fecond place, (hewn to which of thefe courts in par-
ticular application muft be made for redrefs, according to
the diftindlion of injuries, or, in other words, what wrongs
3re cognizable by one court, and what by another ; I pro-
ceeded, under the title of injuries cognizable by the courts of
common law i to define and explain thefpecifical remedies by
adlion provided for every poffible degree of wrong or injury;
as well fuch remedies as are dormant and out of ufe, as thofe
which are in every day's praftice, apprehending that the rea-
fon of the one could never be clearly comprehended, without
fome acquaintance with the other : and, I am now, in the
laft place, to examine the manner in which thefe feveral re-*
medii-^s are purfued and applied, by alion in the courts of
common law, to which I (hall afterwards fubjoin a brief ac-
count of the proceedings in courts of equity.
In treating of remedies by alion at common law, I {hall
confine myftlf to the nvAern method of .prafticf in our courts
of judicature. For, though I thought it ntc flary to throw
put a few obfcrvation? on the nature of real a6lions, how*
eve?
Ch. 18. Wrongs. 271
ever at prefent difufed, in order to demondratc the coherence
and uniformity of our legal conftitution, and that there was
no injury fo obftinate and inveterate, but which might ia
the end be eradicated by fome or other of thofe remedial
writs : yet it would be too irkfome a taflc to perplex both my
readers and myfelf with explaining all the rules of proceed-
ing in thefe obfolete adions, which are frequently mere
pofitive eftablilhments, the forma tt figura judicii, and con-
duce very little to illuftrate the reafon and fundamental
grounds of the law. Wherever I apprehend they may at
all conduce to this end, I (hall endeavour to hint at them
incidentally.
"What therefore the ftudent may expctH: in this and the
fucceeding chapters, is an account of the method of pro-
ceeding in and profecuting a fuit upon any of the perfonal
writs we have before fpoken of, in the court of common pleas
at Weftminfter; that being the court originally conftituted
for the profecution of all civil aflions. It is true that the
courts of king's bench and exchequer, in order, without in-
trenching upon antient forms, to extend their remedial in-
fluence to the neccflities of modern times, have now obtained
a concurrent jurifdiftion and cognizance of very many civil
fuits : but, as caufes ae therein conduled by much the fame
advocates and attorneys, and the feveral courts and their judges
have an entire communication with each other, the methods
and forms of proceeding are in all material refpets the fame
in all of them. So that, in giving an abftrafl or hlftory* of
the progrefs of a fuit through the court of common pleas, we
In deducing this hiftory the ftudent for the profeflion will find it neceflaxy to
mult not cxpedl authorities to be con- pcrufe the books of entries, antient and
ftantly cited i as praftical knowledge ij modern j whch are tranfcripts of pro -
not fo much to be learned ftom any books ceedings that have been had in fomeparti*
flaw, as from experience and attend, cularadlions. A book or two of technical
ance on the courts. The compiler mud learning will alfo be found very conveni-
therefare be frequently obliged to rely ent ; fom which a man of a liberal edu-
upon his own obfeivations ; which in cation and tolerable underftanding may
general he hath been ftudious to avoid glean pro re nata as much as i fufliclent
where thofe of any other might be had. for his purpofe. Thefe Looks f frafiictf
To accompany and il uftrate thefe re- as they are called, are all pretty much
smVi, fuch geatlemeu as ve defigned on a level, in point of compofition and
ralid
272 Private Book III.
fhall at the fame time give d general account of the proceed-
ings of the other two courts ; taking notice, however, of any
confiderable difference in the local praftice of each. And
the fame abftral will moreover afford us fome general idea
of the condut of a caufe in the inferior courts of common
law, thofe in cities and boroughs, or in the court -baron, or
hundred, or county court : all which conform (as near as
may be) to the example of the fuperior tribunals, to which:
their caufes may probably be, in fame ftage or other, re-^
moved.
The moft natural and perfpicuous way of confidering the
fub]el; before us will be (I apprehend) to purfue it in the
order and method wherein the proceedings themfelves follow
each other ; rather than to diftral and fubdivide it by any
more logical analyfis. The general therefore and orderly
parts of a fuit are thefe ; i. The original writ : 2. The pro-
cefs : 3. The pleadings: 4. The ifTue or demurrer : 5. The
trial : 6. The judgment, and it's incidents : 7, The proceed-
ings in nature of appeals : 8. The execution.
First, then, of the original, or original writ ; which is
the beginning or foundation of the fuit. When a perfon
hath received an injury, and thinks it tvorth his while to de-
mand a fatisfatlion for it, he is to confider with himfelf, or
take advice, what redrefs the law has given for that injury ;
and thereupon is to make application or fuit to the crown,
the fountain of all juflice, for that particular fpecific remedy
which he is determined or advlfed to purfue. As, for money
due on bond, an alion of debt; for goods detained without
force, an ^dlion of detinue or trover ; or, if taken with force,
an a<Slion of trefpafs vi et armis ; or to try the title of lands,
folid inllruifVion ; (o that that which moft grofs'iy by ignorant or carelefs tran-
bears the lateft edition is ufually the b:!t fcribers, yet it has traced out the reafon
'BvxGilbert^ibiftoryandfraii.ceoftbeccurt of many parts of our modem pra(Stice
tf ari-.mon fltai is a book of a very differ- from the feadal inftitutions and the pri-
ent ftamp ; and though (like the tell mitive conftrulion of our courts, in a
f'his puitbumoM woik) it bis fuS^ied inoii: clear and ingenious manner.
a 'Writ
Ch. 18. Wrongs. 273
a lurii of entry or aftlon of trefpafs in ejeEJment\ or, for any
confequential injury received, a fpecial alion on the cafe. To
this end he is to fue out, or purchafe by paying the ftated
fees, an originaly or original writ, from the court of chancery,
which is the officina jujiiciae^ the fhop or mint of juftice, .
wherein all the king's writs are framed. It is a mandatory
letter from the king in parchment, fealed with his great feal*",
and direfted to the fherifFof the county wherein the injury
is committed or fuppofed fo to be, requiring him to com-
mand the wrongdoer or party accufed, either to do juftice
to the complainant, or elfe to appear in court, and anfwer
the accufation againlt him. Whatever the fherifFdoes in
purfuance of this writ, he muft return or certify to the court
of common pleas, together with the writ itfelf : which is the
foundation of the jurifdiftion of that court, being the king's
warrant for the judges to proceed to the determination of the
caufe. For it' was a maxim introduced by the Normans,
that there fliould be no proceedings in common pleas before
the king's juftices without his original writ ; becaufe they
held it unfit that thofe juftices, being only the fubftitutes of
the crown, fhould take cognizance of any thing but what
was thus exprefsly referred to their judgment '. However,
in fmall aftions below the value of forty fhillings, which
are brought in the court-baron or county-court, no royal
writ is necessary ; but the foundation of fuch fuits continues
to be (as in the times of the Saxons) not by original wnV,
but by plaint^', that is, by a private memorial tendered ia
open court to the judge, wherein the party injured fets forth
his caufe of alion : and the judge is bound of common
right to admintfter juftice therein, without any fpecial man-
date from the king. Now indeed even the royal writs are
held to be demandable of common right, on paying the ufual
fees : for any delay in the granting them, or fetting an un
ufual or exorbitant price upon them, would be a breach of
magna carta ^ c. 29. *' nulli vendemus, tmlli negabimuSf aut
* d'lfferemus jujiitiam vel reSJum.**
" Finch. L. 437. * Mirr. c, 2, 3.
Flt. /. a. c, 34,
Original
374 Private Book III.
Original writs are either optional or peremptory ; or, in
the language of our lawyers, they are either z praecipe ^ or a
Ji tefecerit fecurum", ^ht praecipe is in the alternative, com-
manding the defendant to do the thing required, or fhew the
reafon wherefore he hath not done it ^ The ufe of this writ
is where fomething certain is demanded by the plaintiff,
which it is incumbent on the defendant himfelf to perform ;
as, to reftore the pofieffion of land, to pay a certain liqui-
dated debt, to perform a fpecific covenant, to render an ac-
count, and the like ; in all which cafes the writ is drawn up
in the form of z praecipe or command, to do thus or (hew
caufe to the contrary ; giving the defcndmt his choice, to
rcdrefs the injury or (land the fuit. The other fpecies of
original writs is czWsd zjijecerit te fecnrum^ from the words
of the writ ; which directs the ilicriff to caufe the defendant
to appear in court without any option given him, provided
the plaintiff gives the fheriff fecurity effectually to profecutc
his claim . This writ is in ufe, where nothing is fpecifically
demanded, but only a fatisfadlion in general j to obtain
which, and minifter complete redrefs, the intervention of fomc
judicature is neceffary. Such are writs of trefpafs, or on the
cafe, wherein no debt or other fpecific thing is fued for in
certain, but only damages to be affeffed by a jury. For this
end the defendant is immediately called upon to appear in
court, provided the plaintiff gives good fecurity of profe-
cuting his claim. Both fpecies of writs are tejledy or wit-
neffed, in the king's own name j " witnefs ourfelf at Wefl
*' minfter," or wherever the chancery may be held.
The fecurity here fpoken of, to be given by the plaintiff
for profecuting his claim, is common to both writs, though
it gives denomination only to the latter. The whole of it is
at prefent become a mere matter of form ; and John Doe
and Richard Roe are always returned as the {landing pledges
for this purpofe. The antient ufe of them was to anfwer for
Finch. L. 257. AppenJ. Na, II, I.
5 Append. No. III. i.
the
Ch. 18. Wrongs. 275
the plaintifF, who in cafe he brought an aftion without caufe,
or failed in the profecution of it when brought, was liable
to an amercement from the crown for raifing a falfe accufa-
tion i and fo the form of the judgment Hill is ^ : In like
manner, as by the Gothic conftitutions no perfon was per-
mitted to lay a complaint againft another y " niji fub fcrip-
** tura aut fpecificatioTie trium tejliunty quod a&ionem vellet per-
' feqtti ' ; and, as by the laws of Sancho I. king of Portu-
gal, damages were given againft a plaintiff who profecuted a
groundlefs a6lion ''.
Thb day, on which the defendant is ordered to appear in
court, and on which the fheriff 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 the king's juftices at
Weftminfler. And it is always made returnable at the dif-
tance of at leaft fifteen days from the date or tejicy that the
defendant may have time to come up to Weftminfter, even
from the most remote parts of the kingdom j and upon fome
day in one of the four terms, in which the court fits for the
dlfpatch of bufmefs.
These terms are fupposed by Mr. Seldon ' to have been
inftituted by William the conqueror: but fir Henry Spelman
hath clearly and learnedly ihewn, that they were gradually
formed from the canonical conftitutions of the church ; being
indeed no other than thofe leifurc feafons of the year, which
were not occupied by the great feftivals or fatts, or which
were not liable to the general avocations of rural bufinefs*
Throughout all chrlftendom, in very early times, the whole
year was one continual term for hearing and deciding caufes.
For the chriftian magiftrates, to diftinguifli themfelves from
the heathens, who were extremely fuperftitious in the obfer-
vation of their dies fajii et uefajliy went into a contrary ex-
treme, and adminiftered juftice upon all days alike. Till at
Finch. L. 189. 25a. * Mod. ITn. Hift. xxli. 45.
* Scienii itjwt Cttter. I, 3. c. 7, ' Jail. AngU I. 2. % 9.
length
2^6 Private Book IIL
length the church interpofed and exempted certain holy fca-
fons from being profaned by the tumult of forenfic litigations.
As, particularly, the time of advent and chriftmas, which
gave rife to the winter vacation 5 the time of lent and eafter,
which created that in the fpringj the time of pentecoft,
which produced the third j and the long vacation, between .
midfummer and michaelmas, which was allowed for the hay
time and harveft. All fundays alfo, and fome particular fef-
tivals, as the days of the purification, afcenfion, and fome
others, were included in the fame prohibition : which was
eftabliflied by a canon of the church, A. D. 517. and was
fortified by an imperial conftitution of the younger Theodo-
fius, comprized in the Theodofian code "*.
Afterwards, when our own legal conftitution came to
be fettled, the commencement and duration of our law terms
were appointed with an eye to thofe canonical prohibitions ;
and it was ordered by the laws of king Edward the confef-
for , that from advent to the olave of the epiphany, from
feptuageftma to the olave of eafter, from the afcenfion to the
olave of pentecoft, and from three in the afternoon of all
faturaays till monday morning, the peace of God and of
holy church (hall be kept throughout all the kingdom. And
io extravagant was afterwards the regard that was paid to
thefc holy times, that though the author of the mirror
mentions only one vacation of any confiderable length, con-
taining the months of Auguft and September, yet Britton is
cxprefs P, that in the reign of king Edward the firft no
fecular plea could be held, nor any man fworn on the
evangelifts ^, in the times of advent, lent, pentecoft, harveit
and vintage, the days of the great litanies, and all folemn
feftivals. But he adds, that the biftiops did neverthelefs
grant difpenfations, (of which many are prefervcd in Rymer's
foedera ^) that afllfes and juries might be taken in fome of
*" Spelnr.an of the terms. P c- S3*
'" c. 3. de temfor'ibus et dUbui ^acU, ' See pag. 59.
. 3. 8. I temp. Hen. JIl, fajftift.
thefc
Ch. i8. ^ Wrong s. 1176^
thcfc holy fcafons. And foon afterwards a general difpenfa-
tion was eftabliflied by ftatute Weftm. i, 3 Edw. 1. c. 51, [ 277 3
which declares, that, *' by the aflent of all the prelates, aflifes
* of novel dijpiftn mart d'ancejlori and darrein prefentment
* Ihall be taken in advent, feptuagefima, and lent ; and that
*' at the fpecial requeft of the king to the bifhops." The
portions of time, that were not included within thefe pro-
hibited feafons, fell naturally into a fourfold divifion, and,
from feme feftivalday that immediately preceded their com-
mencement, were denominated the terms of St. Hilary, of
Eafter, of the Holy Trinity, and of St. Michael : which
terms have been fince regulated and abbreviated by feveral
afts of parliament ; particularly Trinity term by ftatut^
32 Hen. VIII. c. 21. and Michaelmas term by ftatute
16 Car. I. c. 6, and again by ftatute 24 Geo. II. c. 48.
There are in each of thefe terms ftated days called days
m hank, dies in banco; that is, days of appearance in the court
of common bench. They are generally at the diftance of
about a week from each other, and have reference to feme
feftival of the church. On fomc one of thefe days in bani;
all original writs muft be made returnable j and therefore
they are generally called the returns of that term : whereof
every term has more or lefs, faid by the mirror * to have been
originally fixed by king Alfred, but certainly fettled as early
as the ftatute of 5 1 Hen. 3. ft. 2. But though many of the
return days are fixed upon fundays, yet the court never fits to
receive thefe returns till the monday after * ; and therefore no
proceedings can be held, or judgment can be given, or fup-
pofed to be given, or the fonday ".
The firft return in every term is, properly fpeaking, the
firft day in that term ; as, for inftance, the clave of St. Hi-
lary, or the eighth day inclufive after the feaft of that faint :
which falling on the thirteenth of January, the olavc therc-
* c. 5. ^ 108. " I Jon. 156. SM-ann& Broome. B. R.
* Regiftr. 19. Salk. 627. 6 Mod. 250. Mich. 5 Geo. III. u in Dsat. Free. 1766,
c fore
277 Private Book IIL
fore or firft day of Hilary term is the twentieth of January.
And thereon the court fits to take ejjhigns, orexcufes for fuch
278 3 2S do not appear according to the fummons of the writ ;
wherefore this is ufually called the ejfoigu day of the term.
But on every return-day in the term, the perfon fummoned
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 inclufive, quarto die pojly it is fufficient. For our
fturdy anceftors held it beneath the condition of a freeman to
appear, or to do any other al, at the precife time appointed.
The feodal law therefore always allowed three diftinft days
of citation, before the defendant was adjudged contumacious
for not appearing " : preferving in this refpeft the German
cuftom, of which Tacitus thus fpeaks'^, " illud ex libertate
** vitium quod non ftvtul nee jujfi convemunt ; fed et alter et
** tertius dies cunElatiom coeuntium a,bfumitur" And a fimilar
indulgence prevailed in the Gothic conftitution : " illud ensm
** ntmiae libertatis indicium^ concejfa toties impunitas non pa-
** rendi ; nee enim trinis judicii confejftbus poenam perditae
** caiifae contumax meruit*. ^^ Therefore, at the beginning
of each term, the court does not ufually ^ fit for difpatch of
bufinefs till the fourth or appearance day, as in Hilary term
on the twenty-third of January ( i) ; and in Trinity term, by
ftatute 32 Hen. VIII. c. 21. not till i\\Q fifth day, the fourth
V Feud. I. a. t. 22. ' Stiern. dejurt Goth. 1, 1. c. 6.
di mor, Ger. f. H. ^ See 1 Eulft, 35,
( I ) Michaelmas term always begins on the 6th of November,
and ends on the 28th of the fame month ; Hilary term alwaya
begins on the 23d of January, and ends on the 12th of February ;
unlcfs any of thefe four days falls on a funday, then the term
begins or ends on the day following. Eafter term begins always
on the wednefday fortnight after Eafter funday, and ends on the
inonday three weeks afterwards. Trinity term begins always on
the friday after Trinity funday, and ends on the wednefday fort-
night after it begins. I Crsmp.Prac. i.
2 happening
Ch. i8.
Wrongs.
iyS
happening on the great popifh feftival of Corpus Chrtjli ^ ;
which days are therefore called and fet down in the alma-
nacs as the firft days of the term and the court alfo fits till
the quarto die poji ox appearance-day of the laft return, which
is therefore the end, of each term.
2 See Spelman on the terms, ch. 17.
Note, that if ihe feaft of faint John the
kaptift, or midfummer day, falls on the
mortov/ o( Corf us Chrijii day, (as it did
A. D, 1614, 1698, and 1709, and will
again ./^. D. 179 1 ,) Trinity full term
thtn commences and the courts fit on that
(lay i though in other years it is no ju-
ridical day. Yet in 1702, 17 1 3, and
1724, when midfunnmer day fell upoa
what was regu'arly the !aji day of the
term, the courts did not then fit, but it
was regarded like a funday, and the term
was prolonged to the twenty-fifth of
June. [Rat.C. B. Bunb. 176.)
Vol. hi.
^79 Private Book III.
CHAPTER THE NINETEENTH.
OF PROCESS.
' I ''HE next ftep for carrying on the fult, after fulng out
-* the original, is called the proce/s ,- being the means of
conpelHng the defendant to appear in court. This is fome-
times called original procefs, being founded upon the original
writ ; and alfo to diftinguifh it from meffie or intermediate
procefs, which iffiies, pending the fuit, upon fome collateral
interlocutory matter; as to fummon juries, witnefles, and
the like^. Meffie procefs is alfo fometimes put incontra-
diftinlion \.o final procefs, or procefs of execution ; and then
it fignifies all fuch procefs as intervenes between the begin-
ning and end of a fuit.
But procefs, as we are now to confider it, is the method
taken by the law to compel a compliance with the original
writ, of which the primary ftep is by giving the party notice
to obey it. This notice is given upon all real praecipes^ and
alfo upon all perfonal writs for injuries not againft the peace,
by fummons ; which is a warning to appear in court at the
return of the original writ, given to the defendant by two of
the fheriff's meflengers cdWtAftimmenerSy either in perfon or
left at his houfe or land** : in like manner as in the civil law
the firft procefs is by perfonal citation, in jus vocando '. This
warQing on the land is given, in real a<n:ions, by erediing a
white ftick or wand on the defendant's grounds'"; (which
ftickor wand among the northern nations is called the baculus
* Fbch. L. /5 36. ^2.4- i.
* /ii/V. 344. - " Dalt. of iher, c. 31.
nuuc'ta"
Ch. 19. Wrongs. 280
nUTtciatontis' ;) and by ftatute 31 Eliz. c. 3. the notice mud
alfo be proclaimed on fome funday before the door of the
parifli church.
If the defendant difobeys this verbal monition, the next
procefs is by writ of attachment, or ponct fo called from the
words of the writ '^, ** potie per vadium et falvos plegiosy put
*' by gage and fafe pledges A. B. the defendant, ^^r." This
is a writ, not iflfuing 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
(heriff is commanded to attach him, by taking gage^ that is,
certain of his goods, which he fhall forfeit if he doth not
appear^*, or by making him i^nA fafe pledges ox fureties who
{hall be amerced in cafe of his non appearance''. This is
alfo the firft and immedfate procefs, without any previous
fummons, upon adllions of trefpafs vi et armis, or for other
injuries, which though not forcible are yet trefpafles againft
the peace, as deceit and cotfpiracy '; where the violence of
the wrong requires a more fpeedy remedy, and therefore the
original writ commands the defendant to be at once attach-
ed, without any precedent warning j.
If, zhtx attachment y the defendant neglels to appear, he not
only forfeits this fecurity, but is moreover to be farther compel-
led by writ of diflringas ^, or difirefsy infinite ; which is a fub-
fequent procefs ifluing from the court of common pleas, com-
manding the fherifFto diflreinthe defendantfrom time totime,
and continually afterwards, by taking his goods and the profits
of his land*, which are called iffuesy and which by the com-
mon law he forfeits to the king if he doth not appear '. But
now the ifTues may be fold, if the court {hall fo direct, in
order to defray the reafonable cofts of the plaintiff". In like
Stiemb. </(jr Sueon. 1. 1, c, 6. J Append. No II. i.
' Appervl.No JII. a. ^ Append. No III. 2.
Finch. L. 345. Lord Raym. 278. * Finch. L. 351.
* Dalt. fher. c. 31. >" Stac. 10 Geo. III. c. 50.
> Finch. L. 305. 351.
X 2 manner
28 1 Private Book III,
manner by the civil law, if the defendant ahfconds, fo that
the citation is of no efFecfl:, ** mittitur adverfarius in pojpjfio-
*' nem honor um tjus "."
And here by the common, as well as the civil, law the
procefs ended in cafe of injuries without force : the defend-
ant, if be had any fubflancc, being gradually flripped of it
all by repeated diilreiles, till he rendered obedience to the
king's writ ; and, if he had no fubftance, the law held him
incapabk of making fatisfadtibn, and therefore looked upon
all farther procefs as nugatory. And befides, upon feodal
principles, the perfon of a feudatory was not liable to be at-
tached for injuries merely civil, left thereby his lord fhould
be depiived of his perfonal fervices. But, in cafes of injury
accompanied with force, the law, to punifh the breach of
the peace and prevent it's difturbance for the future, pro-
vided alfo a procefs againft; the defendant's perfon in cafe he
neglected to appear upon the former procefs of attachment,
or had no fubftance whereby to be attached ; fubjeting his
body to imprifonment by the writ of capias ad refpoiidendum".
But this immunity of the defendant's perfon, in cafe of
peaceable though fraudulent injuries, producing great con-
tempt of the law in indigent wrongdoers, a capias was alfo
allowed, to arreft the perfon, in actions of account^ though
no breach of the peace be fuggcfted, by the ftatutesof Marl-
bridge, 52 Hen, III. c. 23. and V/eftm. 2. 13 Edw. I. c. 11.
in aftions of debt and detinue^ by ftatute 25 Edw. III. c, 17.
and in all actions on the cafe^ by ftatute 19 Hen. VIT. c. g.'
Before which laft ftatute a praftice had been introduced of
commencing the fuit by bringing an original writ of trefpafs
quare clnufum fregit^ for breaking the plaintiff's clofe vi et
armis : which by the old common law fubjefted the defend-
ant's perfon to be arrefted by writ of capias : and then after-
wards, by connivance of the court, the plaintiff might pro-
ceed to profecute for any otl^er lefs forcible injury. This
pradlice (through cuftom rather than neceffity, and for faving
fome trouble arid expenfe> in fuing out a fpecial original
" Ff. 1.4. 19. 3 Rep, iz,
adapted
Ch. 19, Wrongs. 282
adapted to the particular injury) ftill continues in almoft all
cafes, except in adlions of debt ; though now, by virtue of
the llatutes above cited and others, a capias might be had
upon almoft every fpecies of complaint.
If therefore the defendant being fummoned or attached
makes default, and negle<Sls to appear ; or if the ftieriff re-
turns a fiihi/, or that the defendant hath nothing whereby he
may be fummoned, attached, or diftreined ; the capias now
ufualiy ilTucsP : being a writ commanding the fheriff to take
the body of the defendant if he may be found in his baili-
wick or county, and him fafely to keep, fo that he may have
him in court on the day of the return, to anfwer to the plain-
tiff of a pica of debt, or trefpafs, tsc. as the cafe may be.
This writ, and all others fubfequent to the original writ, not
iffuing out of chancery but from the court into which the
original was returnable, and being grounded on what has
pafled in that court in confequence of the (heriff's return, are
called judicial^ not original writs j they ifTue under the pri-
vate feal of that court, and not under the great feal of Eng-
land ; and are te/Ie^dj not in the king's name, but in that of
the chief (or, if there be no chief, of the fenior) juftice only.
And thefe feveral writs being grounded on the IherifF's re-
turn, mufl refpedtively bear date the fame day on which the
writ immediately preceding was returnable.
This is the regular and orderly method of procefs. But
it is now ufual in pradlice, to fue out the capias in the iirfl:
inftance, upon a fuppofed return of the (heriff ; efpecially if
it be fufpc6led that the defendant, upon notice of the alIon,
will abfcond : and afterwards a fictitious original is drawn up,
if the party is called upon fo to do, with a proper return
thereupon, in order to give the proceedings a colour of regu-
larity. When this capias is delivered to the fherlfF, he by his
under-fherifF grants a warrant to his Inferior officers, or bai-
liffs to execute it on the defendant. And, if the fherilf of
Oxfordfliirc (in which county the injury is fuppofed to ha
* Append. No III. 2.
X 3 committed
i82 Private Book III.
committed and the al:ion is laid) cannot find the defendant
283 ] in his jurifdilion, he returns that he is not found, non eji
inventus^ in his bailiwick : whereupon another writ iflues,
called a tejlatum capias "^^ directed to the flierifF of the
county where the defendant is fuppofed to refide, as of
Berklhire, reciting the former writ, aiid that \x.\%tejlified^ tef-
tatum eJi, that the defendant lurks or wanders in his bailiwick,
wherefore he is commanded to take him, as in the former
capias. But here alfo, when the alion is brought in one
county and the defendant lives in another, it is ufual, for
faving trouble, time, and expenfe, to make out a tejiatum
capias at the firft ; fuppofing not only an original, but alfo a
former capias^ to have been granted, which in faft never was.
And this fiftion, being beneficial to all parties, is readily ac-
quiefced in and is now become the fettled pradtice ; being one
among many infl.inces to illullrate that inaxim of law, that
in jiElione juris cotift/lit aequitas.
But where a defendant abfconds, and the plaintiff would
proceed to an outlawry againft him, an original writ muft
then be fued out regularly, and after that a cnpias. And if
the (herifF caimot find the defendant upon the firll writ of
capiaSf and returns a non eJi inventus^ there iflues out an alias
writ, and after that z p/uries, to the fame eftecl as the for-
mer'': only after thefe words "we command you," this
claufe is inferted, " as we have formerly " or, *' as we have
** ofteny commanded you :" ^'Jicut alias," or **Jicut pluries,
<* praecipimus." And, if a non eJi inventus is returned upon all
of them, then a writ of exigent or exigi facias may be fued
out ', which requires the fheritF to caufe the defendant to be
proclaimed, required or exaled, in five county courts fuc-
ceflively, to render himfelf ; and if he does, then to take
him, as in a capias : but if he does not appear, and is re-
turned quinto exaSluSy lie fliall then be outlawed by the coro-
ners of the county. Alfo by ftatutes 6 Hen. VIII. c. 4. and
31 Eliz. c. 3. whether the defendant dwells within the fame
Append. N III. z. ' Ibid. i Ibid.
or
Ch. 19. Wrongs. 2^83
or another county than that wherein the exigent is fued out,
a writ of proclamation ' fhall iflue out at the fame time with [ 284 ]
the exigent^ commanding the fherifF of the county, wherein
the defendant dwells, to make three proclamations thereof in
places the moft notorious, and moft likely to come to his
knowlege, a month before the outlawry (hall take place.
Such outlaivry is putting a man out of the protedlion of the
law, fo that he is incapable to bring an aftion for redrefs of
injuries; and it is alfo attended with a forfeiture of all one's
goods and chattels to the king. And therefore, till fome
time after the conqueft, no man could be outlawed but for
felony ; but in Bracton's time, and fomcwhat earlier, procefs
of outlawry was ordained to lie in all actions for trefpafles vi
et armis^. And fince his days, by a variety of ftatutc? (the fame
which allow the writ oi capias before- mentioned) procefs of
outlawry doth lie in divers adlions that are merely civil ;
provided they be commenced by original and not by bill^. If
after outlawry the defendant appears publicly, he may be
arrefled by a writ of capias utlagatum^\ and committed till
the outlawry be reverfed. Which reverfal may be had by the
defendant's appearing perfonally in court or by attorney^
(though in the king's bench he could not appear by attorney*,
till permitted by ftatute 4 & 5 W. & M. c. 18.) ; and any
p)auGble caufe, howeyer flight, will in general be fufficient
to reverfe it, it being confidered only as a procefs to compel
an appearance. But then the defendant muft pay full cofts,
and put the plaintiff in the fame condition as if he had ap-
peared before the writ of exigi facias vas awarded. .
Such is the firft procefs in the court of common pleas. In
the king's bench they may alfo (and frequently do) proceed in
certain caufes, particularly in adlions of ejedlmpnt and tref-
pafs, by original writ, with attachment and capias thereon '^ ;
returnable, not at Weftminfter, where the common pleas are
Append. No III. 2. '^ 2 Roll. Rep. 490. Rigul. C, B.
Co. Litt. 128. A.D. 1654. c. 13.
' I Sid. 159. Cro. Jac. 616. Salk. 496.
* Append. NolII. 2. y Append. No 11. ^ 1.
X 4 now
284 Private Book III.
now fixed In confcquence of magna carta^ but " uhicur.qut
*^ fuerimus in Anglia,' wherefoever the king fhall then be in
285 ] England; the king's bench being removable into any part
of England at the pleafurc and difcretion of the crown. But
the more ufual method of proceeding therein is without any
original, but by a peculiar fpecies of procefs entitled a bill of
Middle/ex : and therefore fo entitled, bccaufe the court now
fits in that county ; for if it fate in Kenty it would then be a
hill of Kent '^, For though, as the juftices of this court have-^
by its fundamental conftitution, power to determine all of-
fences and trefpafles, by the common law and cuftom of the
realm ^, it needed no original writ from the crown to give it
cognizance of any mifdemefnor in the county wherein it re-
fides; yet, as by this court's coming into any county, it im-
mediately fuperfeded the ordinary adminiftration of juftice
by the general commiffions of eyre and of oyer and terminer ^^
a procefs of it's own became neceflary within the county
where it fate, to bring in fuch perfons as were accufed of
committing any forcible injury. The bill of Middlefex '^
(which was formerly always founded on a plaint of trefpa^i
' quare claufum fregit^ entered on the records of the court '') is
a kind of capias, directed to the fherifF of that county, and
commanding him to take the defendant, and have him befor?
our lord the king at Weflminfter on a day prefixed, to anfwer
to the plaintiff of a plea of trefpafs. For this accufation of
trefpafs it is that gives the court of king's bench jurifdidlion
in other civil caufes, as was formerly obferved ; fince, when
once the defendant is taken into cuftody of the marfhal, or
prifon-keeper of this court, for the fuppofed trefpafs, he,
being then a prifoner of this court, may here be profecuted
for any other fpecies of injury. Yet, in order to found this
jurifdiilion, it is not neceflary that the defendant beaftually
the marfiial's prifoner j for, as foon as he appears, or puts
* Thus, when the court fate at Ox- > Bro. y^hr. t. junJdtEikn, ii,
fotd,byreafonof the plague,MUh. 1665. 3 In#. 17.
the procefs was by bill of Oxfordjhire. Append. No III. 3.
Ttjt'sjui Fiiixar. loi. * Trye's Jut Filixar. 98.
* Bio. Abr.i.cjerend determitttr.i,
' ' " m-
Ch. 19. Wrongs. 285
in bail, to the procefs, he is deemed by fo doing to be in fuch
cuftody of the marflial, as will give the court a jurifditlion
to proceed*. And upon thefe accounts, in the bill or pro-
cefs a complaint of trefpafs is always fuggefted, whatever elfe L 285 J
may be the real caufe of al:ion. This bill of Middlefex muft
be ferved on the defendant by the flierifF, if he finds him in
that county ; but, if he returns " non eji inventus^* then
there iffiies out a writ of latitat^ ^ to the fherifF of another
county, as Berks : which is fimilar to the tejlatum capias in
the common pleas, and recites the bill of Middlefex and the
proceedings thereon, and that it is teftified that the defendant
** latitat et difcurrity" lurks and wanders about in Berks ; and
therefore commands the flieriff to take him, and have his body
in court on the day of the return. But, as in the common
picas the tejlatum capias may be fued out upon only a fuppofed,
and not an alual, preceding capias ; fo in the king's benck
a latitat is ufually fued out upon only a fuppofed, and not an
a6iual, bilk of Middlefett . So that, iu fact, a latitat may be
called the firft procefs in the court of king's bench, as the
tejlatum capias is in the common pleas. Yet, as in the com-
mon pleas, if the defendant lives in the county wherein the
alion is laid, a common capias fuffices ; fo in the king's
bench likewife, if he lives in Middlefex, the procefs muft
ftill be by hill of Middlefex only.
In the exchequer the firft procefs is by writ of quo mimtSt
in order to give the court a jurifdidlion 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 fuffciens exiflit^
by which he is the lefs able, to pay the king his rent, or debt.
And upon this the defendant may be arreftcd as upon a capias
from the common pleas.
Thus differently do the three courts fet out at firft, in the
commencement of a fuit, in order to entitle the two courts
4 Inft. 72. f Append. No III. 3. Ibid, 4.
of
i86 Private Book III.
of king's bench and exchequer to hold plea in caufes between
fubjedl and fubjel, which by the original conltitutionof Weft-
minfler-hall they were not empowered to do. Afterwards,
when the caufe is once drawn into the rcfpelive courts, the
method of purfuing it is pretty much the fame in all of them.
t 287 ] If the (heriff has found the defendant upon any of the
former writs, the capias^ latitat ^ &c. he was antiently obliged
to take him into cuftody, in order to produce him in court
upon the return, however fmall and minute the caufe of
adlion might be. For, not having obeyed the original fum-
xnons, he had (hewn a contempt of the court, and was no
longer to be trulted at large. But when the fummons fell
into difufe, and the capias became in fal the firfl: procefs, it
was thought hard to imprifon a man for a contempt which
was only fuppofed ; and therefore in common cafes by the
gradual indulgence of the courts (at length authorized by fta-
tute 1 2 Geo. I. c. 29. which was amended by 5 Geo. II.
c. 27. made perpetual by 21 Geo. II. c. 3. and extended to
ail inferior courts by 19 Geo. III. c. 70.) the flierifFor pro-
per officer can now only perfonally ferve the defendant with
the copy of the writ or procefs, and with notice in writing to
appear by his attorney in court to defend thisalion ; which
in effel reduces it to a mere fummons. And if the defendant
thinks proper to appear upon this notice, his appearance is'
recorded, and he puts in fureties for his future attendance and
obedience , which fureties are called common baily being the
fame two imaginary perfons that were pledges for the plain-
tiff's profecution, John Doe and Richard Roe. Or, if the de-
fendant does not appear upon the return of the writ, or within
four (or in fome cafes, eight) days after (i), the plaintiff may
( I ) In all cafes where the defendant is ferved with a copy of
the procefs, he has eight days to file common bail in the king's
bench, or to enter a common appearance in the common pleas,
exclufive of the return day ; and if the laft of the eight days
be a funday, he has all the next day. i Cramp. Prac. 48^
I Burr. ^6.
4 enter
Ch. 19. Wrong s. 287
enter an appearance for him, as if he had really appeared; and
may file common bail in the defendant's name, and proceed
thereupon as if the defendant had done it himfelf.
But if the plaintiff will make affdavit, or aflert upon
oath, that the caufe of action amounts lo ten pounds or up-
wards(2), then he may arrefl the defendant, and make him put
in fubftantial furetics for his appearance, cAXtdifpecial bail. In
order to which, it is required by ftatute 13 Car. U. ft. 2. c. 2.
that the true caufe of aclion fliould be exprefled in the body of
the writ or procefs : elfe no fccurity can be taken in a greater
fum than 40/. This ftatute (without any fuch intention
In the makers) had like to have oufted the king's bench of
all it's jurifditlion over civil, injuries without force j for, as [ 288 3
the bill of Middlefex was framed only for adlions of trefpafs,
a defendant could not be arrefted and held to bail thereupon
for breaches of civil contrafts. But to remedy this incon-
venience, the officers of the king's bench devifed a method
of adding what is called a claufe of ac eiium to the ufual
complaint of trefpafs : the bill of Middlefex commanding
the defendant to be brought in to anfwer the plaintiff of a
plea of trefpafs, ntid alfo to a bill of debt ^ : the complaint
of trefpafs giving cognizance to the court, and that of debt
authorizing the arreft. In imitation of which, lord chief juf-
tice North a few years afterwards, in order to fave the fuitors
of his court the trouble and expenfe of fuing out fpecial ori-
ginals directed that in the common pleas, befides the ufual
complaint of breaking the plaintiff's clofe, a claufe of ac
tium might be alfo added to the writ of capias^ containing
' Tryc*s Jut Fi.'ixar. icz. Append. No III. ^3.
(2) This affidavit niufl be certain and pofitive ; for an affidavit
raade upon belief, or with a reference to foniething tlfc, as where
the plaintiff fwears the defendant is indebted to him in ten pounds
or upwards, as appears by his books, or by a bill delivered, will
not be hjfficient, unlefs the plaintiff is an executor, adminiftrator,
or alSgnet, for then, from the nature of his fituation, he cannot
fvear more pofitively than from belief, or from a reference to the
accounts of others, i Scllon't Prac. 112.
:.'' the
288 Private Book III,
the true caufe of aflion ; as, " that the fald Charles the de-
*' fendant may anfwer to tiie plaintiff of a plea of trefpafs in
*' breaking his clofe : and alfo, ac etianiy may anfwer him,
** according to the cuflom of the court, in a certain pica of
* trefpafs upon the cafe, upon promifes, to the value of
** twenty pounds, ^ri^" The fum fworn to by the plaintiff
is marked upon the back of the^writ ; and the (heriff, or his
officer the bailiff, is then obliged aftualiy to arreft or take
into cuftody the body of the defendant, and, having fo done,
to return the writ with a cepi corpus cndorfed thereon.
An arrejl muff be by corporal feifing or touching the de-
^ fendant's body ; after which the bailiff may juftify breaking
open the houfe in which he is, to take him : otherwife he
has no fuch power , but muff watch his opportunity to arreft
him. For every man's houfe is looked upon by the law to be
his callle of defence and afylum, wherein he ftiould fuffer
no violencc(3). Which principle is carried fo far in the civil
law, that for the moft part not fo much as a common citation
or fummons, much lefs an arreft, can be executed upon a
man within his own walls ''. Peers of the realm, members
280 3 <^f parliament, and corporations, are privileged from arrefts;
and of courfe from outlawries ^ And againft them the procefs
" Lilly pral. Reg. t. ac etiam. North's " Ff. 2. 4. iS 21.
fife of lord Guilfoid. 99. * Whitelocke of pari. 206, 207.
(3) A bailiff before he has made the arreft cannot break open
an outer door of a houfe ; but if he enters the outer door
peaceably, he may then break open the inner door, though it be
the apartment of a lodger, if the owner himfelf occupies part of
the houfe. Convp. \. But if the whole houfe be let in lodgings,
as each lodging is then confidered a dwelling houfe, in which
burglary may be ftatcd to have been committed, fo in that cafe
I conceive the door of each apartment would be confidered an
outer door, which could not be legally broken open to execute an
arreft. Cowp- 2. It is not neceffary that the arreft fiiould be
made by the hand of the bailiff, nor that he ftiould be aftually
in fight ; yet where an arreft is made by his affillant or fol-
lower, the bailiff ought to be fo near as to be co&fidered at adling
in it. CoKvp. 65.
6
Ch. 19. Wrongs, 189
to enforce an appearance mud be by fummons and diftrefs
infinite), 'm(tead oi z capias. Alfo clerks, attorneys, and
all other perfons attending the courts of juftice (for attorneys,
being officers of the court, are always iuppofod to be there
attending) are not liable to be arrefted by the ordinary procefs
of the court, but muft be fued by iill (called ufually a bilJ of
privilege) as being perfonally prefent in court''. Clergymen
performing divine fervice, and not merely (laying in the
church with a fraudulent defign, are for the time privileged
from arrefts, by ftat. 50 Edw. III. c. 5. and i Ric. II.
c. 16, as likewife members of convocation actually attending
thereon, by ftatute 8 Hen. VI. p. i . Suitors, witneflts, and
other perfons, neceflarily attending any courts of record upon
bufinefs, are not to be arrefted during their a6tual attend-
ance, which includes their neceffary coming and returning(4).
And no arreft can be made in the king's prefence, nor within
the verge of his royal palace', nor in any place where the
ting's juftices are alually fitting. The king hath moreover
J See page 2S0. the palace of Weftmlnfter extends, by
^ Bro. Abr. t. billt. 29. 12 Mod. 163. ftat. 28 Hen.VlIL c 1 2. fromCharing-
' See VoL IV. 276. The verge or crcfs to Weftminfter hall.
(4) The court of common pleas have laid down this general
rule, viz. that all perfons who have relation to a fuit, which call
for their attendance, whether they are compelled to attend by
procefs or not, are ent*led to privilege eundo et redeundo, provided
they come honajide. A pcrfon, therefore, attending the court to
juftify himfelf as an honeft bail, is privileged. I H. Bl. 636. Bar-
riilers arretted upon the circuit have frequently been difcharged
by thejudges. Ibid. The court of king's bench have refufed to
difchargc a creditor of a bankrupt arretted whilfl attending the
commiflioners to prove his debt ; but probably he would have
been difcharged by the chancellor, from whom the "commiflioner
of bankrupt immediately derive their authority. 4 T. R. 377.
The king's fervants are privileged from arreft ; and if they are
taken in execution they are entitled to be difcharged upon motion.
6 T. /?. 686. Where a caufe is referred by a rule of court, the
party is protefted from arreft whilft attending the arbitrator.
3///. 941,
a ipecial
289 Private Book llh
a fpecial prerogative, (which indeed is veryfeldom exerted"",)
that he may by his wrii of proteElion privilege a defendant
from all perfonal, and many real, fuits for one year at a time,
and no longer \ in refpel of his being engaged in his fervice
out of the realm ". And the king alfo by the common law
might take his ddbtor into his protelion, fo that no one
might fue or arreft him till the king's debt were paid": but
by the ftatute 25 Edw. III. ft. 5. c. 19. notwithftanding fuch
C 290 ] protelion, another creditor may proceed to judgment againft
him, with a ftay of execution, till the king's debt be paid j
unlefs fuch creditor will undertake for the king's debt, and
then he fhall have execution for both. And, laftly, by ftatute
29 Car. II. c, 7. no arreft can be made, nor procefs ferved upon
a funday, except for treafon, felony, or breach of the peace.
When the defendant is regularly arrefted, he muft either
go to prifon, for fafe cuftody: or put in fpecial hail to th^
IherifF. For, the intent of the arreft being only to compel
an appearance in court at the return of the writ, that purpofe
is equally anfwered, whether the flieriff detains his perfon,
or takes fufficient fecurity for his appearance, called hail
(from the French word, hailler^ to deliver) becaufe the de-
fendant is bailed, or delivered, to his fureties, upon their
giving fecurity for his appearance ; and is fuppofed to con-
tinue in their friendly cuftody inftead of going to gaol. The
method of putting in bail to the ftierifFis by entering into a
bond or obligation, with one or more fureties, (not hcStitious
perfons, as in the former cafe of common bail, but real,
fubftantial, refponlible bondfmen,) to infure the defendant's
appearance at the return of the writ; which obligation is
^ Sir Edward Coke informs us, " be thoBght to delay juftice." But
(l Inft. t")!.) that herein " he could king William, in 1692, granted one to
'* fay nothing of his own experience ; lord Cutts, to proteft him from being
' for albeit queen Elizabeth maintained outlawed by his taylor : {3 Lev. 332)
" many wars, yet flie granted few or no which is the laft that appears upon our
" prote61ions; and herreafon waS, that bool'S.
< he was no, fie fubjeft to be employed "* Finch. L, 4.54. 3 Lev. 33a.
< in her fervice, that was fubjeft to <> F. N. B. z8. Co. Litt. 131.
" other men's a^ons } left ihe might
called
Ch. 19. Wrongs. 290
called the bail-bond''. The fherifF, if he pleafes, may let the
defendant go without any fureties ; but that is at his own
peril : for, after once taking him, the fiieriff is bound to
keep him fafely, fo as to be forthcoming in court ; otherwife
an action lies againfl him for an efcape. But, on the other
hand, he is obliged, by ftatute 23 Hen. VI. c. 10. to take
(if it be tendered) a fufficient bail-bond: and by ftatute
1 2 Geo. I. c. 29. the fherifF fliall take bail for no other fum
than fuch as is fworn to by the plaintiff, and endorfed on
the back of the writ.
Upon the return of the writ, or within four days after (5),
the defendant muft appear according to the exigency of the
writ. This appearance is efFeted by putting in and juflifying
bail to the aBion ; which is commonly called putting in bail C 29I ]
above. If this be not done, and the bail that were taken by
the fherifF belonv are refponfible perfons, the plaintiff may
take an affignment from the fherifF of the bail-bond (under
the ftatute 4 & 5 Ann. c. 16.), and bring an adlion thereupon
againft the fherifF's bail. But if the bail, fo accepted by the
(herifF, be infolvent perfons, the plaintifFmay proceed againft
the fherifF himfelf, by calling upon him, firft, to return the
writ (if not already done) and afterwards to bring in the
body of the defendant. And, if the fherifF does not then
caufe fufTicient bail to be put in and perfected a^ow, he will
himfelf be refponfible to the plaintifF.
The bail above^ or bail to the aBion, muft be put In either
in open court, or before one of the judges thereof; or elfe,
in the country, before a commifTioner appointed for that pur-
pofe by virtue of the ftatute 4 W. & M. c. 4. which muft be
tranfmitted to the court. Thefe bail, who muft at leaft be
two in number, muft enter into a recognizance 1 in court or
before the judge or commifFioner, in a fum equal (or in fome
Append. No IH. 5. < Ibid.
(5) In London and Middlcfex fpccial bail in th king's bench
muft be put in within four days, exclufive of the return of the
writ ; ia any other county within fix days : but if the laft day
faUs
291 Private Book lit,
cafes (6) double) to that which the plaintiff has fvvorn to ;
whertby they do jointly and feverally undertake, that if the
defendant be condemned in the a6lion he fhall pay the cofts
and condemnation, or render himfelf a prifoner, or that they
will pay it for him : which recognizance is tranfmitted to the
court in a flip of parchment entitled a bail piece''. And, if
excepted to, the bail muft be perfecled^ that is, they nwx^juf-
tify themfelves in court, or before the commiflTiqner in the
country, by fwearing themfelves houfekeepers, and each o^
them to be worth the full fum for which they are bail, after
payment of all their debts. This anfwers in fome meafure to
thejiipulaiio or fatifdatio of the Roman laws', which is mutu-
ally given by each litigant party to the other : by the plaintiff,
that he will profecute his fuit, and pay the cofts if he lofes his
caufe ; in like manner asour law ftill requires nominal pledges
of profecution from the plaintiff: by the defendant, that he
(hall continue in court, and abide the fentence of the judge,
much like our fpecial bail ; but with this difference, that the
f 292 '\ Jidejujfores were there abfolutely bound, judicatumfolvere^ to
fee the cofts and condemnation paid at all events : whereas our
fpecial bail may be difcharged, by furrendering the defendant
into cuftody, within the time allowed by law ; for which
purpofe they are at all times entitled to a warrant to appre-
hend him' (7).
Append. N III. 5. Show. ao2. 6 M<mI. 231.
* Itiji. 7.4. t. II. Ff.h 2. /. 8.
falls on a funday, it may then be put in on the monday following.
In any other county where the adion is brought in the com-
mon pleas fpecial bail may be put in within eight days. I Cromp,
Prac. 59.
(6) If the defendant Is not prefent, and does not enter into
the recognizance, then the bail are bound in double the fum fworn
to. 1 Cromp, 56.
(7) The bail to the fherlff cannot take and furrender the de-
fendant ; for it is held, that nothing can- be a performance of the
condition of the bail-bond, but putting in bail above, 5 Burr. 2683 ;
except the defendant voluntarily furrenders himfelf to the flieriff
Wfort the return of the writ. 6 T* R. 753. But bail above may
U
Ch. 19, Wrong s. 292
Special bail is required (as of courfe) only upon adlions
of debt, or alions on the cafe in trover or for money due,
where the plaintrfFcan fwear that the caufe of adion amounts
to ten pounds : out in adions where the damages are preca-
rious, being to be aflefled ad libitum by a jury, as in adions
for words, ejedlment, or trefpafs, it is very feldom pofllble for
a plaintiff to fwear to the amount of his caufe of adion ; and
therefore no fpecial bail is taken thereon, unlefs by a judge's
order or the particular direftions of thecourt, in fome pecu-
liar fpecies of injuries, as in cafes of mayhem or atrocious
battery ; or upon fuch fpecial circumftances, as make it ab-
folutely neceffiiry that the defendant fliould be kept within
the reach of juftice. Alfo in adions againft heirs, executors,
and adminiftrators, for debts of the deceafed, fpecial bail is
not demandable ; for the action is not fo properly againft them
in perfon, as againft the effedls of the deceafed in their pof-
feflion. But fpecial bail is required even of them, in adions
for a devajiavit^ or wafting the goods of the deceafed j that
wrong being of their own committing.
Thus much for procefs : which is only meant to bring
the defendant into court, in order to conteft the fuit, and
abide the determination of the law. When he appears either
in perfon as a prifoner, or out upon bail, then follow the
pleadings between the parties, which we (hall confider at large
in the next chapter.
be put m without the defendant's confent, who may the next day
take up the defendant and fiirrender him in difchargc of them-
fclves. The defendant is confidcred in the cuftody of his bail,
Who may therefore Spprehend him without any warrant, even if
hfc' is attending a court of juillce, or is a bankrupt who has not
pafled his Inft examiilation. 5 7". R. 210. And if the defendant
J8 in cuftody, either in a civil aftlon or upon a criminal charge,
they may have a writ of habeas corpus to bring him up to the court
to be furrendered in difcharge of the bail, j T. R. 226. In what
cafes an exoneretur may be entered upon the bail-piece, and for
the proceedings upon the bail-bond, &c. fee the various books of
practice with which it is ncccffary that every ftudent, who intcndl
to praftice the law, fliould make himfelf familiar-
VoL. III. y
93 Private Book III.
CHAPTER THE TWENTIETH*
OF PLEADING.
PLEADINGS are the mutual altercations betweea
the plaintiff and defendant j which at prefent are fet
down and delivered into the proper office in writing, though
formerly. they were ufually put in by their counfel oreUnus^ or
viva voccy in court, and then minuted down by the chief
clerks, or prothonotarics ; whence in our old law French
the pleadings are frequently denominated the parol.
The firft of thefe is the declaration^ narratio or county
antiently called the tale * ; in which the plaintiff fcts forth
his caufe of complaint at length : being indeed only an am-
plification or expofition of the original writ upon which his
alion is founded, with the additional circumftances of time
and place, when and where the injury was committed. But
we may remember '', that, in the king's bench, when the de-
fendant is brought into court by bill of Middlefex, upon a
fuppofed trefpafs, in order to give the court a jurifdidlion^
the plaintiff may declare in whatever adlion, or charge him
""with whatever injury he thinks proper j unlefs he has held
him to bail by a fpecial ac etiam^ which the plaintiff is then
bound to purfue. And fo alfo, in order to have the benefit of
a capias to fecure the defendant's perfon, it was the antient
praftice and is therefore ftill warrantable in the common
pleas, to fue out a writ of trefpafs quart claujumf regit ^ for
breaking the plaintiff's close ; and when the defendant is once
Append. N II. 2. N" III. 6. Seepag. 285. 288.
brought
Ch. ao. Wrongs. 294
brought in upon this writ, the plaintiff declares In whatever
alion the nature of his true injury may require ; as in an
ation of covenant, or on the cafe for breach of contract, or
other lefs forcible tranfgreflion ^ : unlefs, by holding the de-
fendant to bail on a fpecial ac etiaiTiy he has bound himfelf to
declare accordingly.
In local 7iQC\ovi%i where poffeffion of land is to be recovered,
or damages for an alual trefpafs, or for wafte, ^c. affecting
land, the plaintiff muft lay his declaration or declare his in-
jury to have happened in the very county and place that it
really did happen j but in tranfttory adtions, for injuries that
might have happened any where, as debt, detinue, flander,
and the like, the plaintiff may declare in what county he
pleafes, and then the trial muft be had in that county in which
the declaration is laid. Though if the defendant will make
affidavit, that the caufe of action, if any, arofenot in that but
in another county, the court will diredl; a change of the vetiue
or vifnet (that is, the vicinia or neighbourhood in which the
injury is declared to be done,) and will oblige the plaintiff to
declare in the other county; unlefs he will undertake to give
material evidence in the firft (i ). For the ftatute 6 Rich. 11.
c. 2. and 4 Hen. IV. c. 18. having ordered all writs to be
laid in their proper counties, this, as the judges conceived,
impowered them to change the venue^ if required, and not
to infift rigidly on abating the writ : which practice began in
the reign of James the firft **. And this power is difcretionally
exercifed, fo as to prevent and not to caufe a defeb of juf-
tlce. Therefore the court will not change the vetiiic to any
of the four northern counties, previous to the fpring circuit ;
*iVen'r. 159. Filix. 231. Styl. prad. Reg. (edit,
* Rafte'.l t. Ditte. 184, b. Fitx. Mr. 1657.) 331.
t. Brxtft. 18. Salk. 670. TrjTi's Ju%
( I ) But if he fails to produce at the trial material evidetice of
the caufe of adiion in the county, in which he has laid it, he muft
be nonfuited, though he might have recovered a verdift in another
county. 2 Bl. Rfp. lo^i .
y 2 bccaufe
'294 Private Book IIL
becaufe there the ailife^are holden only once a year, at the
time of the fummer circuit- And it will fometimes remove
the venue from the proper jurifdidlion, (efpecially of a narrow
and limited kind,) upon a fuggeftion, duly fupported, that a
fair and impartial trial cannot be had thereiri'(2).
r 2Q- T It is generally ufual in aflions upon the cafe to fet forth
feveral cafes, by different counts in the fame declaration; fo that
if the plaintiff fails in the proof of one, he may fucceed in
"another. As, in an alion on the cafe upon an ajfumpfttiox
goods fold and delivered, the plaintiff ufually counts or de-
clares, firft, upon a fettled and agreed price between him and
the defendant ; as that they bargained for twentypounds : and
lefl he (hould fail in the proof of this, he counts likewife upon
a quantum vakbant i that the defendant bought other goods,
and agreed to pay him fo much as they were reafonably worth;
and then avers that they were worth other twenty pounds :
and fo on in three or four different fhapes ; and at laft con-
cludes with declaring, that the defendant had re,fufcd to ful-
fil any of thefe agreements, whereby he is endamaged to fuch
a value. And if he proves the cafe laid in any one of his
counts, though he fails in the reft, he fhall recover propor-
tionable damages. This decfaration always concludes with
thefe words, " and thereupon he bringsy?//'/," &c. ^' inde pro-
*' ducitfeBam" &c. By which word S,y?/// oxfecJa (afequendo)
were antiently underftood the witneffes or followers of the
plaintiff *^. For in former times the law would not put the de-
* Stra.87.4. Mylockv. SaiadiDC, Tn'n. ^ Geo. TIL B.R.
' Seld. onFortefc. c. 21.
(2) The court will not change the venue in an aftion brought
upon a fpecialty, a promifTory note, or a bill of exchange ; yet in
oe-cafe wJiere the aftion was upon a bond, and the witnefTes of
toth parties lived in the county to which the defendant prayed
the venue might be changed, the court ordered it to be changed
upon condition that the defendant fhould bring no writ of error,
and fhould give juigmeritof the term preceding the trial, i T. R.
4 fendant
Ch. 20. Wrongs. 495
fendant to the trouble of anfwering the charge, till the plaintiff
had made out at leaft a probable cafe ^. But the adlual produc-
tion of the/uii, tlieJiSa, ox followers, is now antiquated j and
hath been totally difufed, at leaft ever fince the reign of Ed-
ward the third, though the form of it ftill continues.
At the end of the declaration are added alfo the plaintiff's
common pledges of profecution, John Doe and Richard Roe,
which, as we before obferved ^, are now mere names of form ;
though formerly they were of ufe to anfwer to the king for
the aTiiercement of the plaintiff, in cafe he were nonfuited,
barred of his aclion, or had a verdi6l or judgment againft
him '. For, if the plaintiff negledls to deliver a declaration
for two terms after the defendant appears, or is guilty of other,
delays or defaults againft the rules of law in any fubfequent
ftage of the a<Stion, he is adjudged not to JgUqiu or purfue his r ^q^ t
remedy as he oiight to do, and thereupon a nonjuit^ or non
profcqultur, is entered j and he is i^iA to be nonpros' d. And
for thus defcrcing his complaint, after making a felfe claim or -^
complaint, (pro falfo clamorefuoy) he (hall not only pay cofts
to the defendant, but is liable to be amerced to the king. A,
retraxit differs from a uonfuit, in that the one is negative, and
the other pofitive : the nonfuit is a mere default and neglect of
the plaintiff, and therefore he is allowed to begin his fuit again,
upon payment of cofts ; but a retraxit is an open and volun-
tary renunciation of his fuit, in court, and by this he for
ever lofcs his-a<f]tion. A difcqntinuauce is fomewhat limilar to
a nonfuit : for when a plaintift' leaves a chafm in the proceed-
ings of his caufe, as by not continuing the procefs regularly
from day to day, and time to time, as he ought to do, the fuit
is difcontinued, and the defendant is no longer bound to at-
tend ; but the plaintiff muft begin again, by fuing out a new,
original, ufually paying cofts to his antagonift. Antiently, by
the demife of the king, all fuits depending in his courts were at
once difcontinued, and the plaintiff was obliged to renew the
procefs, by fuing out a frcfli writ from the fucceffor : the virtue
Biaft. 400. Fkt. /, a. f. 6. '3 Bulflr. 275. 4 Inil. 189,
" Stc pig. 274,
Y3 of
296 Private Book III.
of the former writ being totally gone, and the defendant no
longer bound to attend in confequencc thereof: but, to pre-
vent the expence as well as delay attending this rule of law,
the ftatute 1 Edw. VI. c. 7. enaiSls, that by the death of the
king no action {hall be difcontinued ; but all proceedings
fhall ftand good as if the fame king had been living.
When the plaintiff hath ftated hiscafe in the decferation,
it is incumbent on the defendant within a reafonable time to
make his defence, and to put in zplea ; elfe the plaintiff will at
once recover judgment by defaidt,ox nihildicit of the defendant.
Defence, in it's true legal fenfe, fignifies not a juflification,
protedlion, or guard, which is now it's popular fignification ;
but merely znoppojtfig or de/iial [hom the French verb defender J
of the truth or validity of the complaint. It is the contejlatio
litis of the civilians : a general afiertion that the plaintiff hath
no ground of action, which affcrtion is afterwards extended -
C ^97 ] '^"^ maintained in his plea. For it would be ridiculous to
fuppofe that the defendant comes and defends (or, in the vul-
gar acceptation, juflifies) the force and injury, in one line,
and pleads that he is not guUty of the trefpafs complained of,
in the next. And therefore in actions of dower, where the
demandant doth not count of any injury done, but merely de-
mands her endowment '', and in affifes of land, wl^ere alfo
there is no injury alleged, but merely a queftion of right dated
for the determination of the recognitors or jury, the tenant
makes no fuch defence '. In writs of entry ", where no injury
is dated in the count, but merely the right of the demandant
and the defeftive title of the tenant, the tenant comes and
defends or denies his nghi^jusfuum ; that is, (as I underfland
it, though with a fmall grammatical inaccuracy,) the right of
the demandant, the only one exprefsly mentioned in the plead-
ings : or elfe denies his own right to be fuch, as is fuggefled'
by the count of the demandant. And in writs of right " the
tenant always comes and defends the right of the demandant
k Riftal. entr. 234. '" Vol. II. Append, N" V. ^,
> Booth of real aftior,s. i|8, . " Append. No I- 5.
Ch. 20. Wrongs. 297
and his (t'lCintJas praediSIi S. etfeiftnam ipjius^y (or elfe the fei-
(in of his anceftor, upon which he counts, as the cafe may be,)
and the demandant may reply, that the tenant unjuftly defends
his, the demandant's right, and the feifin on which he countsP.
All which is extremely clear, if we underftand by defence an
eppofitioti or denial, but is otherwife inexplicably difficult ''.
The courts were formerly very nice and curious with re-
fpefl: to the nature of the defence, fo that if no defence was
mnde, though a fufficient plea was pleaded, the plaintiff fhould
recover judgment' : and therefore the book intitled novae
narrationes or the new talys*, at the end of almoft every count,
Ttarratioy or tale, fubjoins fuch defence as. is proper for the de-
fendant to make. For a genernl defence or denial was not
prudent in every fituation, fince thereby the propriety of the
writ, the competency of the plaintiff, and the cognizance of
the court, were allowed. By defending the force and injury
the defendant waived all pleas of mifnofmer'j by defending the [ 298 ^
damages, all exceptions to the perfon of the plaintiff; and by
defending either one or the other ivhen and where it fhould
behove him, he acknowledged the jurifdicHon of the court".
But of late years thefe niceties have been very defervedly
difcountenanced * ; though they ftill feem to be lav/, if in-
filled on \
Before defence made, If at all, cognizance of the fult muft
ht claimed or demanded ; when any perfon or body corporate
hath the franchife, not only of holding pleas within a particu-
lar limited jurifdicllon, but alfo of the cognizance of pleas :
Co. Entr, 1 8l. home doyt tntendrt quilfe excufe dt tort a
f Nov. Narr, 130. edit. 1534. /uy furmys per counte, et fait Je fartie
i The true reafon of this, fays Boofh, al fie 5 et per tant quiUefende let dami-
(onrealadiioni, 94 iia.) 1 could never get, i! affirm /e parte able de/lrere/pondu;
yet find : fo littie did he uuderftaiid of et per tant qu'il defcnde ou et quant il de-
principlcl ! -vera, il accepte la poiar de court de cc-
Co. Litt. 127. fififtre ou trier hur pie. (Mod. ttnend.
' E'^it- '534- cur. 408. edit. 1534.) Sec alfo Co.
Theloil. dig. /, 14. *. i. pag. 3.57. Litt. 127.
" En la defence font Hj chofes entert' * Salk. 217. Lord Raym. 282.
dantx : per tant qml dtftndi tort et force, * Caitfa. 430. Lord Rayon. 117.
Y 4 and
29^ Private Kook III.
and that, either without any words exclufive of other. courts,
which entitles the lord of the franchife, whenever any fuit
that belongs to his jurifdidion is cominenced in the courts
at Weftminfter, to demand the cognizance thereof ; or nvith
fuch exclufive words, which alfo entitle >the defendant to
plead to the jurifditlion of the court i'. Upon this claim of
cognizance, if allowed, all proceedings (hall ceafe in the fu-
pcrior court, and the plaintiff is left at liberty to purfue his
remedy in the fpecial jurifdilion. As, when a fcholar, or
other privileged perfon of the univeriities o^ Oxford, or Cam-
bridge is impleaded in the. courts at Wefiminftex* for any
caufe of alion whatfoever, unlefs upon a queftion of free-
hold *. In thefe cafes, by the charter of thofe learned bo-
dies, confirmed by a6t of parliament, the chancellor or vice-
chancellor may put in a claim of cognizance; which, if made
in due time and form, and with due proof of the fadls alleged,
is regularly allowed by the courts^. It muft be denpanded
before full defence is made ^ or imparlance prayed ; for thefe
are a fubmiffion to the jurifdiclioncf the fuperior cpurt, and
the delay is a lac/jes in the lord of the franchife . and -it will
not be allowed, if it occafions a failure of juftice*^, or if an
C "^99 ] ^^^^^ ^^ brought againft the perfon himfelf, who claipns the
franchife, unlefs he hath aifo a power in fuch cafe of making
another judge '^.
After defence made, the defendant muft pv^t in hjsjilta.
But, before he defends, if the' fuit is commenced by (aj>ias
or latitat, without any fpecial original, he is entitled to de-
1 2 Lord Raym. 836. loMod. ii6. of thAitognizancn, is curious. and worth
' See pag. 83. tranfcribing. Jeo -vous dirai unfjhle.
' Hardr. ^05. , La jfcun temjis Jul', un faiii, et avoit
* Ra!l. Entr. iz8, &c. fnt un grand offence, et h cardinul} -vin-
' a Ventr. 353. drcnt a luy et d:J'yent a luy,'** '^eciajh:**
* Hab.f7. Yeai.b;iok. jT/. ZEer. VI. et il dU, " judica ws;" et'^Hi dijcyent,
20. In this latter cafe ihe chancellr of " r.or pcffumus, quia cn^ut es tcclefiat \ '
Oxford ciairr.eJ cognizance of an i'Cti m " u:di':a teipjun: ;" ct rapcjiol dit, " ju-
of trerpifs brought againft himfelf; * " duo me cremari;'" ct'fucomkuflui\
vhxh was difa'lowed, becaufe hi fliouid ' et ofrei'fmt :in Ja'incl. Et in cenai U
not be juJgc in his own caufc. The ar- fuit Jon juge Jcmene, et ifftrt u'efi pai in-
gumeatufed by feijeantRulfe, on bsha'if aav.inUnt que un bonufdt jage dtmene.
mand
Ch. 20. Wrong s. 299
mand one imparlance" ^ or licentia kquendi -. and may, before he
fleads, have more time granted by conlcnt of the court j to
' fee if he can end the matter amicably without farther fuit, by
talking with the plaintiff: a pradlice, whicli is ^ fuppcfcd to
have arifeu from a principle of religion, in obedience to that
precept of the gofpel, " agree with thine adverfary quickly,
* whilfl thou art in the way with him^."' And it may he ob-
ferved that this gofpel precept has a plain reference to the
Roman law of the twelve tables,' which exprefsly directed
the plaintiff and defendant to make up the matter, while
tl\ey were in the ivayy or going to the praetor in via, rem
uti pacunt orato. There are alfo many other previous Heps
which may be taken by a defendant before he puts in his plea.
He may, in real adlions, demand a view of the thing in quef-
tion, <ir\ order to afcertain it's identity and other circum-
ftances. He may crave oyer^ of the writ, or of the bond, or
other fpecialty upon which the action is brought ; that is to
hear it read to him j the generality of defendants in the times
of antient fimplicity being fuppofed incapable to read itthem-
felves : whereupon the whole is entered verbatim upon the
record, and the defendant may take advantage of any condition
or other part of it, not ftated in the plaintiff's declaration.
In real adlions alfo the tenant may pray in aid^ or call for af- r ^qq j
Cftance of another, to help him to plead, becaufe of the fee-
blencfs or imbecility of his own eftate. Thus a tenant for
life may pray in aid of him that hath the inheritance in re-
mainder or reverfion ; and an incumbent may pray in aid of
the patron and ordinary :' that is, that they (hail be joined in
the aclion and help to defend the title. Voucher alfo is the
calling in of fome perfon to a:ifwer the action, that hath
warranted the title to the tenant or defendant. This we ftill
make ufe of in the form of common recoveries ', which are
grounded on a writ of entry; a fpecies of alion that we may -
remember relies chiefly on the weaknefs of the tenant's title,
who therefore vouches another perfon to warrant it. If the
vouchee appears, he is made defendant inftead of the vouchor :
Append. N" III. 6. ^ Append. N=' III. 6.
' Gilb. Hift. Com. PI. 35. ' Vol. II. Appends N" V. 2.
Mate. T. z%*
but,
300 Private Book III.
but, if he afterwards makes default, recovery fliall be had
againft the original defendant ; and he (hall recover over an
equivalent in value againft the deficient vouchee. In affifcs
indeed, where the principal queftion is, whether the demand-
ant or his anceftors were or were not in poflefliontill the oufter
happened, and the title of the tenant is little (if at all) dif-
cufled, there no voucher is allowed ; but the tenant may
bring a writ of ivarrantia chartae againft the warrantor, to
compel him to aflift him with a good plea or defence, or elfe
to^render damages and the value of the land, if recovered
againft the tenant''. In many real alions alfo', brought by
or againft an infant under the age of twenty one years, and
alfo in a6lions of debt brought againft him, as heir to any de-
ceafed anceftor, either party may fuggeft the nonage of the
infant, and pray that the proceedings may be deferred till his
full age ; or (in our legal phrnfe) that the infant may have his
age, and that the parol may demur ^ that is, that the pleadings
may be ftaid j and then they fliall not proceed till his full age,
unlefs it be apparent that he cannot be prejiidiced thereby .
But, by the ftatutes of Weftm. i. 3 Ectvv. I. c. 46. and of
Glocefter, 6 Edw. I. c. 2. in writs of entry fur dijei/inin
fome particular cafes, and in aftions aunceftrel brought by
r 501 "1 ^" infant, the parol (hall not demur : otherwife he might h^
deforced of his whole property, and even Want a maintenance^'
till he came of age. So likewife in a writ of dower the heir
{ball not have his age ; for it is neceffary that the widow's
claim be immediately determined, elfe fhe may want a pre-
fent fubfiftence". Nor fliall an infant patron have it in a
f[uar impedit-y fmce the law holds it nccefTary and expedient
that the church be immediately filled.
"When thefe proceedings are over, the defendant muft
then put in his excufe or plea. Pleas are of two forts ; di-
latory pleas, and pleas to theaEllon. Dilatory pleas are fuch
as tend merely to delay or put off the .fait, by queftioning
k F. N. B. 135, ' 1 Roil. Abr. 137, '
* Dyer. 137. Ih'id. 13S.
> Finch. L. 360.
the
Ch. 20. Wrongs. 301
the propriety of the remedy, rather than by denying the in-
jury : pleas to the aflion are fuch as difpute the very caufc
of fuit. The former cannot be pleaded after a general im-
parlance, which is an acknowlegement of the propriety of
the alion. For imparlances are either ^^7;^rdr/, of which we
have before fpoken, and which are granted of courfe ; or
fpecialy with a faying of all exceptions to the writ or count,
which may be granted by the prothonotary ; or they may be
flill more fpecialy with a faying of all exceptions whatfoever,
which are granted at the difcretion of the court p.
I. Dilatory pleas are, i. To tlie jiirifdiElion of the
court : alleging, that it ought not to hold plea of this in-
jury, it arifing in Wales or beyond Tea ; or becaufe the land
in queftion is of antient demefne, and ought only tO be de-
manded in the lord's court, Isfc. 2. To the dif ability of
the plaintiff, by reafon whereof he is incapable to com-
mence or continue the fuit ; as, that he is an alien enemy,
outlawed, excommunicated, attainted of treafon or felony,
under a praemunire^ not in rerum natura (being only a fic-
titious perfon), an infant, a feme-covert, or a monk pro-
fefled. 3. In abatement: which abatement is either of the
writ, or the count, for fome defeft in one of them ; as by [ goj 1
mifnaming the defendant, which is called a mifnofmer; giving
him a wrong addition, as efquire inftead oi knight ; or other
want of form in any material refpeQ (3). Or, it may be, that
' 12 Mod. 579.
(3) All dilatory pleas are called pleas in abatement, in contra-
diftinftion to pleas in bar. By the 4 & 5 Ann. c. 16. and the
prafUce of the courts, naplea in abatement can be received unlefs
the defendant proves the truth of it by af&davit. i Cromp. 132.
3 Burr. 1618.
Thefc pleas are not favoured by the courts, and they mud be
filed within four days after the day upon which the declaration ii
delivered, both days being tnciufive. i T. R. 2.77. 5 T. R. 210.
Where an action is brought againft one or fome only of a num
bcr of partner!, if the defendant mv defendants intend to take ad-
12 TanUfe
302 p. R r V ATE Book III.
the plaintiff i^ dead ; fpx the d,eath of either party, is at once
an abatement of tUefuit. And in adtions merely perfonal,
ajrifing ex deli^foyioT wrongs actually done or committed by
the defendant, as trefpafs, battery, and .llanUcr, the rule is
tl^a;: a^io^p^rfonalis morittir ^cum ^erjona 1^j^nd.Jt never fhall
be, reY.tv?,d, eithe^ by or .again ft the executors or other reprc-
fe^itatives. For neither , the executors of the piaintiiT have
receive d,,Aot; thpfe of the. defendant have committed, in their
own perfpflal capacity, any manner of wrong or injury. But
in actions ari/ing ex contraElu., by breach of promife and the
like, where the right defcends to the reprefentatives of the
plaintiff, and thofe of the defendant have aflets to anfwer
the^d,emand, though the fuits fiiall abate, by the death of the
partie^jjet ithe,y may be revived againft or by the executors "^i
being indeed. rather adlions againft the property than the per-
fon, in which- the executors have now the fame intereft that
ti^ir te(^tpr;^ad^ before.'
THEySEple^s to |Q^ jurifdjdtiqn, to th^e^^dlfabiU or in
abatement, were, forn^erly very often ufed as mere dilatory
picas, without any foundation of truth, and calculated only
for delay ; but now by ftatute 4 & 5 Ann. c. 16. no dilatory,
ple^ ig to bq. admitted, withcmt affidavit made of,the trutK
thereof, or fome probable matter fhewn to the court to induce
them to believe it true. And witli refpe6l to the pleas them-
vantage of the partnership, it mufl be pleaded in abatement, orit is
fuppoTed to Ee waived. And the pica in abatement mini ftate who
are the real partners. 2 Bl. Rep. 947. If one of feveral part-
owners of a chattel, as of a fhip fue alone, and although this ap-
p^shy the declaration,- for an Injury done to the chattel, the de-
fendant c!anoniy take advantage of this by a plea in ahatcment ; but
if there is no fuch plea, the plaintiff may recover damages for his
fhare. 6'T* R^ ^66. And if another part-owner brings a fimilar
action-, then the defendant cannot plead in abatement that the for-
mer part-owner is not joined in the alion, for he has already ob-
tained a compenfation Jbr the injury done to him. 7 T, R. 279.
felvcs.
cr
Ch. 20. W R o N tj s. 302
feU'es, it is a rule, that no'ei-eej^tionlfhall be atfttiitted agalnfl;
a declaration or writ, unlefs the defendant will in the fame
plea give the plaintiff a better ' ; that is, fliew him how it
might be amended, that there may not be tv/o objedions
upon the fame account. Neither, by ftatute 8 & 9 W. III.
c. 3 1 . (hall any plea in abatement be admitted in any fuit
for partition of lands ; nor shall the fame be abated by reafon
of tlie death of any tenant.
All pleas to the jurifditSbion conclude to the cognizance [ 303 J
of the court; praying "judgment, whether the court will
' have further cognizance of the fuit :" pleas to the difabi-
lity conclude to the perfon ; by praying " judgment, if the
" faid A the plaintiff ought to be anfvvered :" and pleas in
abatement (when the fuit is by original) conclude to the
writ or declaration ; by praying " judgment of the writ, or
*' declaration, and that the fame may be quafhed," cajetur,
made void, or abated : but, if the ation be by bill, the plea
muft pray '* judgment of the bill," and not, of the declara-
tion ; the bill being here the original, and the declaration
only a copy of the bill.
"When thefe dilatory pleas are allowed, the caufe is either
difmifled from that jurifdidlion j or the plaintiff is flayed till
his difability be removed ; or he is obliged to fue out a new
writ, by leave obtained from the court ' ; or to amend and
new-frame his declaration. But when on the other hand
they are over- ruled as frivolous, the defendant has judgment
of refpondeat ouflery or to anftver over in fome better manner.
It is then incumbent on him to plead.
2. A PLEA to the anion ; that is to anfwer to the merits
of the complaint. This is done by confefling or denying It.
A CONFESSION of the whole complaint is not very ufual,
for then the defendant would probably end the matter fooner;
or not plead at all, but fuffer judgment to go by default.
Yet fometimes, after tender and refufal of a debt, if the cVc-
* Browni. 1J9. Ca. Ent. 271,
ditor
303 Private Book III.
ditor harafles his debtor with an adlion, it then becomes ne-
ceiTary for the defendant to acknowlege the debt, and plead
the tender ; adding that he has always been ready, tout temps
pri/iy and ftill is ready, uucore priji, to difcharge it : for a
tender by the debtor and refufal by the creditor will in all cafes
difcharge thecofts ^, but not the debt itfelf ; though in fome
particular cafes the creditor will totally lofe his money " (4).
j^ 304 3 But frequently the defendant confefles one part of the com-^
plaint, (by a cognovit anionem in refpedl thereof) and traverfcs
or denies the reft : in order to avoid the expenfe of carrying
that part to a formal trial, which he has no ground to liti-
gate. A fpecies of this fort of confeflion is the ptT\^ment of
motley itjto court "^c which is for the moft part neceflary upon
pleading a tender, and is itfelf a kind of tender to the plain-
tiff; by paying into the hands of the proper officer of the
court as much as the defendant acknowleges to be due, to-
gether with the cofts hitherto incurred, in order to prevent
the expenfe of any farther proceedings. This may be done
upon what is called a motion ; which is an occafional appli-
cation to the court by the parties or their counfel, in order
to obtain fome rule or order of court, which becomes necef-
fary in the progrefs of a caufe ; and it is ufually grounded
upon an affidavit y (the perfefl tenfe of the verb affidoy) being
a voluntary oath before fome judge or officer of the court, to
evince the truth of certain fals, upon which the motion is
grounded : though no fuch affidavit is necefTary for payment
of money into court. If, after the money paid in, the
plaintiff proceeds in his fuit, it is at his own peril : for if
he does not prove more due than is fo paid into court, he fliall
be nonfuited and pay the defendant cofts ; but he (hall ftiU
have the mc.iey fo paid in, for that the defendant has acknow-
]eged to be his due (5). In the French law the rule of practice
" I Vent. 21. Styl. praa. Reg {edit. 1657.) 2CI.
Litt. 338. Co. Litt. 209. a Keb. 555. Salic, 596.
(4) A tender in bank notes is fufficient, unlefs the creditor ex-
prefsly refufes to receive notes and infifls upon cafli. 3 T. R. 554.
. (5) Where goods have been taken under a miftake without any
lofs to the owner, the court upon motion will ftay the proceedings
in
Ch. 20. W R o N G Si 394
is grounded upon principles fomewhat finallar to this ; for
there, if a perfon be fued for more than he owes, yet he lofes
his caufe if he doth not tender fo much as he really docs owe^.
To this head may alfo be referred the prr.6lice of what is
called zfet-off: whereby the defendant acknowlegts thejuf-
tice of the plaintiff's demand on the one hand ; but on the
other fets up a demand of his own, to counterbalance that
of the plaintiff, either in the whole or in part ; as, if the
plaintiff fues for ten pounds due on a note of hand, the de-
fendant may fet off nine pounds due to himfelf for merchan-
dize fold to the plaintiff, and, in cafe he pleads fuch fet-off,
muft pay the remaining balance into court. This anfwers
very nearly to the compenfat'iOf ox Jloppage, of the civil law*, [ 305 J
and depends on the ftatutes 2 Geo. II. c. 22. and 8 Geo. II.
c. 24. which enal, that, where there are mutual debts be-
tween the plaintiff and defendant, one debt may be fet againfl
the other, and either pleaded in bar, or given in evidence
upon the general iffue at the trial ; which fhall operate as
Sp, L. b. 6. c. 4. Ff. 16. a. 1.
in an aftion of trefpafs, upon the defendant's undertaking to rc-
ftorc them, or to pay their full value, with the cods of the adlion.
Lord Mansfield has declared, " that where a factor, dealing for a
" principal, but concealing that principal, delivers goods in his own
" name, the perfon contradling with him has a right to confider
** him to all intents and purpofes as the principal; and though the
" real principal may appear andbring an aftion upon that contraft
* agalnft the purchafer of the goods, yet that purchafer may fet
' off any claim he may have againO; the factor in anfwtr to the
" demand of the principal. This has been long fettled."
This has fmce been confirmed as law by lord Kenypn and die
court of king's bench. 7 7*. R, 359. And lord Kenyon has alfo
held, that a demand upon one partner may be fetoRin an aftion by
a number of partners, if that one partner was the only oftenfible
perfon engaged in the bufinefs, and appeared to the world as folcly
intercilcd therein. 7 "T. Z^^, 361.
payment.
y>S Private Book III.
payment, and xtinguifli fo much of the plaintiff's de-
mand (6).
Pi-EAs, that totally deny the caufe of complaint, are cither
the ge fie ^I iflue, or a fpecial plea, in bar.
J' ! i'. The general \S\xt, or general plea, is what traverfcs^
thwarts, and denies at once the whole declaration \ without
offering any fpecial matter whereby to evade it. As in tref-
p^fs either vi et nnnis^ or on the cafe, non culpahil'is, not
guilty J'; in debt upon cor\Xxz6kt nihil deht^ he owes nothings
' in debt on bond, mii ejl fnBum^ it is not his deed ; on an
djfuvipjitf non ojjumpjity he made no fuch promife. Or in real
actions, mil tort, no wrong don^j vul dijjeijtn^ no difleifin \
and in a writ of right, the mife or iflue is, that the tenant
has more right to hold than the demandant has to demand.
Thefe pleas are called the general Iffue, becaufe, by im-
porting an abfolute and general denial of what is alleged
in the declaration, they amount at once to an iffue j by
which we mean a fal affirmed on one fide and denied on
the other.
Formerly the general Iffue was feldom "pleaded, except
when the party meant wholly to deny the charge alleged againft
him. But when he meant to difllnguifli away or palliate the
charge, it was always ufual to fet forth the particular fa(5ls in
- y Append. N" IL 4.
(6) The debts between the plaintiff and defendant muft be
inutual, but may be of different natures; if the defendant doe*
not fpecially plead bis debt as a fet-off, he muft deliver a notice of
fet-oft together with the plea of the general iffue. But where
either debt arlfes upon the penalty in any bond or fpecialty, the
^ebt fet-off muft be pleaded. 8 Geo. 11. c. 24. A notice of fet-
off ought to be expieffed with almofl asmuch certainty as a de
claralion ; and the delivery of It muft be proved at the trial of the
caufe. I Cromp. Pr. 157. But In aiSions by or againft the af-
fignees of a bankrupt, the fum juftly diie may be- recovered under
, the 5 Geo. II. c. 30. without either pleading, or giving notice of 3
iet-off. ir.R.i 15.
what
Ch. 20. tV R O N G S^ 305
what is called % fpeciol plea ; which was originally intended
to apprize the court and the adverfe party of the nature and
eircumftances of the defence, and to keep the law and the
fa(Sl diflin(3:. And it is an invariable rule, that every dcfeace
which cannot be thus fpecially pleaded, may be given in evi-
dence, upon the general ifTue at the trial. But, the fclence
of fpecial pleading having been frequently perverted to the C 3^ 3
purpofes of chicane and delay, the courts have of late in
fome inftances, and the legiflature in many more, permitted
the general iffue to be pleaded, which leaves every thing open,
the fal, the law, and the equity of the cafe ; and have al-
lowed fpecial matter to be given in evidence at the trial. And,
though it ftiould feem as if much confufion and uncertainty
Would follow from fo great a relaxation of the (Iritlnefs
antiently obferved, yet experience has fliewn it to be other-
wife ; cfpccially with the aid of a new trial, in cafe either
party be unfairly furprifed by the other.
2. Special pleas, in bar- of the plaintiff's demand, are
Very various, according to the eircumftances of the defend-
ant's cafe. As, in real adlions, a general releafe or a fine, ^
both of which may dsilroy and bar the plaintiff's title. Or,
in perfonal aclions, an accord, arbitration^ conditions per-
formed, nonage of the defemlant, or fome other fa6t which
preclil<!es the plaintiff from his a61:ion '^. A jujlification is
likewlfe a fpecial plea in bar ; as in actions of affault and .
battery, fon affault demefne, that it was the plaintiff's own
original affault ; in trefpafs, that the defendant did the thing
complained of in right of fome office which warranted him
fo to do ; or in an action of flander, that the plaintiff is
really as bad a man as tlie defendant faid he was.
Also a mari may plead t!ie ftatutes of limitation* in bar; 'v
or the time limited by certain acls of parliament, beyond
which no plaintiff can lay his caufe of adion. This, by the
ftatute of 32 Hen, VIII. c. 2. in a writ of right, \sfixty years ;
in affifes, writs of entry, or other pollcffory adliona real, of
* Append. No UI. ^6. See pig. ii%. 196.
Vol. Ill, Z the
306 Private Book III.
the feifin of one's anceftors, in lands ; and either of their
feifin, or one's own, in rents, fuits, and fervices, fifty years :
and in aftions real for lands grounded upon one's own feifin
or poflefiion, fuch pofleflion muft have been within thirty
years. By ftatute i Mar. ft. 2. c. 5. this limitation does not
extend to any fuit for advowfons, upon reafons given in a
former chapter ^. But by the ftatute 21 Jac. I. c. 2. a time
C 3*^7 ] ^^ limitation was extended to the cafe of the king; viz.
fixty years precedent to ig Feb. 1623 ^ ; but, this becoming
inefFedlual by efflux of time, the fame date of limitation was
fixed by ftatute 9 Geo. III. c. 16. to commence and be
reckoned backwards, from the time of bringing any fuit or
other procefs, to recover th? thing in queftion ; fo that a
pofTeflion iox fixty years is now a bar even againft the prero-
gative, in derogation of the antient maxim, " nullum tempus
** occurrit regi*' By another ftatute, 2 1 Jac. I. c. 1 6. twenty
years is the time of limitation in any writ of formedon : and,
by a confequence, twenty years is alfo the limitation in every
- ation of ejettment ; for no ejectment can be brought, un-
lefs where the leflbr of the plaintifFis entitled to enter on the
lands *, and by the ftatute 21 Jac. I. c. 16. no entry can be
made by any man, unlefs within twenty years after his right
fhall accrue. Alfo all adlions of trefpafs, {qiiare claufumf regit ^
or otherwife,) detinue, trover, replevin, account, and cafe (7),
(except upon accounts between merchants (8),) debt on fimple
contract, or for arrears of rent, are limited by the ftatute laft
mentioned to fix years after the caufe of aflion commenced :
'' See pag. 250. '^ 3 Inft. 189. ** See pag. 206.
(7 ) Under the head of U'^^ions upon the cafe are included aftions
for libels, criminal convefation, feduftion, and a6tions for words,
which are not adlionable without a fpecial damage.
(8) This exception does not extend to a tradefman's account
with his cuftomer, where the items are all on one fide, for then
the ftatute will bar tliofe beyond fix years ; but where there is a
mutual unfettled account, it is held ihat a new item in the account
within fix years is an acknowledgment of the whole, and takes the
whole account out oflhe ftatute. 6 T. R. 189.
and
Ch. 20. Wrongs. 3ay
and actions of afTault, menace, battery, mayhem, and im-
prifonment, mud be brought yx'ith'm four years, and actions
for words within two years, after the injury committed (9).
And by the ftatute 3 1 Eliz. c. 5. all fuits, indictments, and in-
formations, upon any penal flatutes, where any forfeiture is
to the crown alone, (hall be fued within tivo years j and where
the forfeiture is to a fubje6t, or to the crown and a fubjel,
within c;/f year after the offence committed (10), unlefs where
any other time is fpecially limited by the ftatute. Laftly, by
ftatute loW.III. c. 14. no ^vntoi error, fcire facias f or other
fuit, ftiall be brought to reverfe any judgment, fine, or reco-
very, for error, unlefs it be profecuted within twenty years (11).
(9) The ftatute makes an exception for all perfons who fliall be
under age, feme covertsy non compos mentis, in prffon, or abroad,
when the caufe ofaftion accrues ; and the limitations of the ftatute
ftiall only commence from the time when their refpeftive Impedi-
Hients or difabilitles are removed ; fee. 7. But if one only of a
number of partners lives abroad, they muft bring their aAIon
within fix years after the caufe of it accrued. 4 7". iJ. 5 1 6. And
where a party has been guilty of any fraud in his dealings or ac-
counts, the courts of law and equity have determined that he fhall
only proteft himfelf by the ftatute of limitations from the time hia
fraud is difcovered. 3 P. JVms. 143. Doug. 630.
Any acknowledgment of the exiftence of the debt, however
flight, win take It out of the ftatute, and the limitation will thea
run from that time ; and where an expreflion is ambiguous, it
Ihall be left to the confideration of the jury, whether it amounts or
not to fuch acknowledgment. 2 T. R. 760. Where there are
two or more drawers of a joint and feveral promiflbry note, the
acknowledgment of one may be given in evidence in a feparate
aftlon agalnft another, and will defeat the effcft of the ftatute.
DotiS' 629. ' .
(10) Where the forfeiture is to the crown and a fubjeft, a com-
mon informer muft fue within one year, and the crown may profe-
cutc for the whole penalty at any time within two years after thati
year ended.
(11) No ftatute has fixed any limitation to a bond or fpecialty;
fcut Tiherc no intereft has been paid upon a bond, and no demand
Z 2 proved
307 Private Book III.
The ufe of thcfe ftatutes of limitation is to preferve the peace
of the kingdom, and to prevent thofe innumerable perjuries
\yhich might enfue, if a man Were allowed to bring an action
[ 308 "} i<>r any injury committed at any diftance of time. Upon both
thefe accounts the law therefore holds, that " interejl reipuh~
licae uijtt finis litium :" and upon the fame principle the Athe-
nian laws in genetal prohibited all alions, where the injury
was committed five years before the complaint was made .
If therefore in any fuit, the injury, or caufe of a^ion, hap-
pened earlier than the period exprtfsly limited by law, the de-
fendant rnay plead the ftatutes of limitations in bar: as upon
an ajfumpjity or promife to pay money to the plaintiff, the de-
fendant may plead non ajfumpfit infra fex annos -, he made no
fuch promife within fix years i which is an effedlual bar to
the complaint.
An efioppel is likewife a fpcclal plea in bar j which hap-
pens where a man hath done fome aft, or executed fome deed,
which eftops or precludes him from averring any thing to
the contrary. As if tenant for years (who hath no freehold)
kvics a fine to another perfon. Though this is void as to
llrangcrs, yet it (hall work as an eftoppel to the cognizor j
for if he afterwards brings an aftion to recover thefe lands,
and his fine is pleaded againft him, he fliall thereby be eftop-
ped from faying, that he had no freehold at the time, and
therefore was incapable of levying it.
The conditions and qualities of a plea (which, as well
as the doftrine of eftoppels, will alfo hold equally, mutatis
mutandisy with regard toother parts of pleading) are; i.That
it be fingle and containing only one matter ; for duplicity
begets confufion. But by ftatute 4 & 5 Ann. c. 16. a man
vdxh leave of the- court may plead two or more diftinft; mat-
* Pott. Ant. b. I. c. 21.
proved thereon for twenty.years, the judges recommend it to the
jury to prefume that it is difcharged, and to find a vordi^ for the
dcfcndaat. 2 T. R. 2jo,
K ter
Ch. 20. Wrongs. 308
ters or fingle pleas; as, in an adliion of aflault and battery,
thefe three, not guilty, fon ajfault dttnefne^ and the ftntute of
limitations. 2. That it be direl and pofitive, and not ar-
gumentative. 3. That it have convenient certainty of time,
place, and perfons. 4. That it anfwer the plaintiff's alle-
gations in every material point. 5. That it be fo pleaded as
to be capable of triaL
Special pleas are ufually in the affirmative, fometimes [ 309 ]
In the negative ; but they always advance fome new fadl not
mentioned in the declaration; and then they mud be averred
to be true in the common form : " and this he is ready to
*' verify." This is not necefiary in pleas of the general
iffuc ; thofe always containing a total denial of the fadls
before advanced by the other party, and therefore putting
him upon the proof of them.
It is a rule in pleading, that no man be allowed to plead
fpecially fuch a plea as amounts only to the general iffiie, or
a total denial of the charge ; but in fuch cafe he fiiall be
driven to plead the general ifflie in terms, whereby the whole
quc^ftion is referred to a jury. But if the defendant, in an
aflife or action of trefpafs, be defirous to refer the validity of
his title to the court rather than the jury, he may ftate his
title fpecially, and at the fame time give colour to the plaintiff,
or fuppofe him to have an appearance or colour of title, bad
indeed in point of law, but of which the jury are not com-
petent judges. As if his own true title be, that he claims
by feoffment with livery from A, by force of which he en-
tered on the lands in queftion, he cannot plead this by itfelf,
as It amounts to no more than the general iffue, mil torty mil
diffi'ifm^ in affife, or not guilty In an alion of trefpafs. But
he may allege this fpecially, provided he goes farther and
fays, that the plaintiff claiming by colour of a prior deed of
feoffment, without livery, entered ; upon whom he entered j
and may then refer hinifelf to the judgment of the court
which of thcfc two titles is the bell in point of law ^
' Dr. & Stud. 2. c. 5 J,
Z 3 When
309 Private Book III.
When the plea of the defendant is thus put in, if it does
not amount to an ifTue or total contradiction of the declara-
tion but only evades it, the plaintifF may plead again, and
reply to the defendant's plea : either traverfinji it ; that is,
totally denying it ; as, if on an adion of debt upon bond the
defendant pleadsyl/^^/Vfl^ /;>/, that he paid the money when
[ 310 J due, here the plaintifF in his replication may totally traverfe
this plea, by denying that the defendant paid it ; or, he may
allege new matter in contradilion to the defendant's plea ;
as when the defendant pleads no award made, the plaintifF
may reply, and fet forth an actual award, and afTign a
breach 5: or the replication may covfefs and avoid the plea, by
fome new matter or diftinclion, confiflent with the plaintiff's
former declaration ; as, in an alion for trefpafTmg upon land
whereof the plaintifF is feifed, if the defendant fhews a title
to the land by defcent, and that therefore he had a right to
enter, and gives colour to the plaintifF, the plaintifl'may either
traverfe and totally deny the fa<Sl of the defcent; or he may
confefs and avoid it, by replying, that true it is that fuch
defcent happened, but that fmce the defcent the defendant
himfelf demifed the lands to the plaintifF for term of life.
To the replication the defendant may rejoin^ or put in an
anfwer called a rejoinder. The plaintifF may anfvver the xt-
mm^txhy z fur- rejoinder : upon which the defendant may
rebut ; and the plaintifF anfwer him by zfur-rehutter. Which
pleas, replications, rejoinders, fur-rejoinders, rebutters, and
fur- rebutters anfwer to the exception replication dutlicatiOf
triplication and quadruplicatio of the Roman Jaws '.
The whole of this procefs is denominated the pleading j
ill the feveral flages of which it mufl be carefully obferved,
not to depart or vary from the title or defence, which the
party has once infilled on. For this (which is called a de-
partiire in pleading) might occafiori endlefs altercation.
Therefore the replication muft fupport the declaration, and,
the rejoinder mufl fupport the plea, without departing out of
, 8 Append, No III. 6. " /"/ 4- H* Bradl. /. 5. tr. 5. c. i.
6 it>
Ch. 20. Wrongs. 310
it. As in the cafe of pleading no award made, in confequence
of a bond of arbitration, to which the plaintiff replies, fetf
tint; forth an adlual award ; now the defendant cannot rejoin
that he hath performed this award, for fuch rejoinder would
be an entire departure from his original plea, which alleged
that no fuch award was made : therefore he has now no other
choice, but to traverfe the fa6l of the replication, or elfe to [ 311 "]
demur upon the law^ of it.
Yet in many alions the plaintiff, who has alleged in his
declaration a general wrong, may in his replication, after an
cvafive plea by the defendant, reduce tliat general wrong to
a more particular certainty, by alFigning the injury afrefh
with all it's fpecific circumftances in fuch manner as clearly
to afcertain and identify it, confidently with his general
complaint; which is called a new ox novel ajftgnment. As, if
the plaintiff in trefpafs declares on a breach of his clofe in D j
and the defendant pleads that the place where the injury ig
faid to have happened is a certain clofe of pafture in D,
which defcended to him from B his father, and fo is his own
freehold ; the plaintiff may reply and affign another clofe in
D, fpecifying the abuttals and boundaries, as the real place
of the injury".
It hath previoufly been obferved'' that dtiplicityin pleading
muft be avoided. Every plea muft be fimple, entire, con-
nefted, and confined to one fingle point : it mud never be
entangled with a variety of diflin6l independent anfwers to
the fame matter ; which mud require as many different
replies, and introduce a multitude of iffues upon one and the
fame difpute. For this would often embarrafs the jury, and
fomctimes the court itfclf, and at all events would greatly
enhance the expenfe of the parties. Yet it frequently is
expedient to plead in fuch a manner as<o avoid any imnlicd
admiffion of a fal, which cannot with propriety or fafety be
pofitively affirmed or denied. And this may be done by what
is called 2l protejlatkn ; whereby the party interpof<rs an ob-
liro. Abr.t. trcj{>afs. iOJ. 184. k pag. 308.
2 4 liquc
3ti Private Book III,
lique allegation or denial of fome fai, protefting (by the
gerund , prote/fanda) that fuch a matter does or does not exift ;
and at the fame time avoiding a direl affirmation or denial.
Sir Edward Coke hath defined' a proteftation (in the pithy
dialed of that age) to be *^ an exclufion of a conclufion,'*
L 3^2 ] For the ufe of it if, to fave the party from being concluded
with refpel to fome fatl or circumftance, which cannot b'e
diredly affirmed or denied without falling into duplicity of
pleading; and which yet, if he did not thus enter his protell,
he might be deemed to have tacitly waived or admitied.
Thus, while tenure in villenage fubfifted, if a villein had
brought an aftion againfl: his lord, and the lord was inclined
to try the merits of the demand, and at the fame time to
prevent any conclufion againll himfclf that he had waived
his figniory ; he could not in this cafe both plead affirmar
lively that the plaintiff was his villein, and alfo take iflue
tipon the dernand ; for then his plea would have been double^
as the former alone would have been a good bar to the adlion :
but he might hgve alleged the villenage of the plaintiff, by
way of proteftation, and then have denied the demand. By
this means the future vaflal-'.ge of the plaintiff was faved to
the defendant, in cafe the iffue was found in his (the defendr
^nt's) favour"^ : for the proteftation prevented that conclu-
fion, which would otherwife have refulted from the reft of
his defence, that he had enfranchifed the plaintiff" ; fince nq
villein could maintain a civil aftion againft his lord. So alfo
if a defendant, by way of inducement to the point of his
defence, alleges (among other matters) a particular mode of
feifm or tenure, which the plaintiff is unwilling to admit,
and yet defires to take iffue on the principal point of the de-
fence, he muft deny the feifin or tenure by w,ay of protefta-
tion, and then traverfe the defenlive matter. So laftly, if
an award be fet forth by the plaintiff, and he can afCgn a
' breach in one part of it, {viz. the non-payment of a fum of
money,) and'yet is afraid to admit the pcrforn^ance of the reft;
pf ;he award, or to aver in general a non performance of any
I Infl. i;4. " Co. Litt. 126. " See book II, ch. 6. pag. 194,
part
Ch. ao. Wrongs. 312
part of it, left fomething (hould appear to have been per-
formed J he may fave to himfelf any advantage he might
hereafter make of the general non-performance, by alleging
that by protcftation \ and plead only the nonrpayment of the
money ".
In any ftage of the pleadings, when either fide advances or [ jij T
affirms any new matter, he ufually (as was faid) avers it to
he tiuei " and this he is ready to verify." On the other
hand, when enhcr fide traverfes or denies the fals pleaded by
his antagoiiift, he ufually tenders an iflue, as it is called ; the
language i)t which is different according to the party by whom
the iflue is tendered ; for if the traverfe or denial comes from
the defendant, the iflue is tendered in this manner, *' and of '
*' this he puts himfelf upon the country," thereby fubmitting
bimfclf to the j udgment of h s peers p ; but if the traverfe lies
wj^on the phiutifF, he tenders the iflue or prays the judgment
of the peers againft the defendant in another form ; thus :
** and this he prays may be inquired of by the country."
But if either fide (as, for inftance, the defendant) pleads
a fpeclal negative plea; not traverfing or denying any thing
that Wits before all'-ged, but difclofing fome new negative
inatter ; as, where the fuit is on a bond, conditioned to per-
form an award, and the defendant pleads, negatively, that
n3 award was made, he tenders no iflue upon this plea ; be-
caufe it does not yet appear whetlier the fal will be difputed,
the plaintiff^ not having yet aflerted the exiftence of any
award j but when the plaintiff replies, and fets forth an
aftual fpecific award, if then the defendant traverfes the re-
plication, and denies the making of any fuch award, he then,
and not before, tenders an iflue to the plaintiff. For when in
the courfe of pleading they come to a point which is aflirmcd
on one fide, and denied on the other, they are then faid to
be at iffue i all their debates being at laft contracted into-a
fingle point, which muft now be determined either in fa-
vour of the plaintiff or of tlv defendant.
o Append. NolU. 6, ? ApP "<! N^ll. \.
3^4 Private Book III.
CHAPTER THE TWENTY-FIRST.
OF ISSUE AND DEMURRER.
ISSUE, exituSf being the end of all the pleadings, is the
fourth part 6r ftage of an action, and is either upon mat-
ter of law, or matter oifaB,
An Iffue upon matter of law Is called a demurrer: and it
confefles the fal;s to be true, as ftated by the oppofite party j
but denies that, by the law arifing upon thofe fa6ls, any in-
jury is done to the plaintiff, or that the defendant has made
out a legitimate excufe : according to the party which firft
demurs, demoratury refts or abides upon the point in queflion.
As, if the matter of the plaintiff's complaint or declaration
be infufiicient in law, as by not affigning any fufficient treC-
pafs, then the defendant demurs to the declaration ; if, on
the otli<^hand, the defendant's excufe or plea be invalid, as
if he pleads that he committed the trefpafs by authority from
a flranper, without making out the ftranger's right ; here the
plaintiff may demur in law to the plea : and fo on in every
other part of the proceedings, where either fide perceives
any material objedlion in point of law, upon which he may
reft his cafe.
The form of fuch demurrer is'by averring the declaration
or plea, the replication or rejoinder, to be infuflicient in
law
Ch. IT. Wrong s. 315
law to maintain the alion or the defence ; and therefore
praying judgment for want of fufncient matter alleged '.
{sometimes demurrers are merely for want of fufficient form
in the writ or declaration. But in cafe of exceptions to the
form, or manner of pleading, the party demurrinc: muft by
ftatute 27 Eliz. c. 5. and 4 & 5 Ann. c. 16. fet forth the
caufes of his demurrer, or wherein he apprehends the de-
ficiency to confift. And upon either a general^ or fuch a
fpedal demurrer, the oppofite party mufl aver it to be fuffi-
cient, whicli is called a joinder in d^m-urrer '', and then the
parties are at ifTue in point of law. Which iflue in law, or
demurrer, the judges of the court before which the adion is
brought muft determine.
An iflue of fa6l is where the fal only, and not the law,
13 difputed. And when he that denies or traverfes the fafl
pleaded by his antagonift has tendered the iflue, thus 5 ** and
** this he prays may be inquired of by the country ;" or,
** and of this he puts himfelf upon the country ;" it may im-
mediately be fubjoined by the other party, ** and the faid
< A. B. doth the like." Which done, the iflue is faid to be
joined, both parties having agreed to reft the fate of the caufe
upon the truth of the fal in queftion '^. And this iflue of
fafl muft, generally fpeaking, be determined, not by the judges
of the court, but by fome other method ; the principal of
which methods is that by the country, per pais, (in Latin,
per patrtamy) that is, by jury. Which eftabliftiment of dif-
ferent tribunals for determining thefe different ifliues, is in
fome meafure agreeable to tli courfe of juftice in the Ro-
man republic, where the judices ord'tnarii determined only
queftions of fa6l, but queftions of law were referred to the
(decifions of the centumviri ''.
But here it will be proper to obferve, that during the
whole of thefe proceedings, from the time of the defendant's
appearance in obedience to the king's writ, it is neccfl*ary
Append. No III. 6. * Append, No 11. 4.
tiii^' . * Cic. dc Orator. U i. c, 38.
tlut
5i6 Private Book III.
that both the parties be kept or continued in court from day to
day, till the final determination of the fuit. For the court
can determine nothing, unlefs in the prefcnce of both the
parties, in perfon or by their attorneys, or upon default of
one of them, after his original appearance and a time pre-
fixed for his appearance in court again. Therefore in the
courfe of pleading, if either party negleds to put in his de-
claration, plea, replication, rejoinder, and the like, witliin
the times allotted by the (landing rules of the court, the
plaintifF, if the omiffion be his, is faid to be nonfuii, or not
to follow and purfue his complaint, and fliall lofe the benefit
of his writ : or, if the negligence be on the fide of the de-
fendant, judgment may be had againft him, for fuch his
default. And, after iflue or demurrer joined, as well as in
fome of the previous ftages of proceeding, a day is continually
given and entered upon the record, for the parties to appear
on from time to time, as the exigence of the cafe may re-
quire. The giving of this day is called the con/wa^fice,
becaufe thereby the proceedings are continued without in-
terruption from one adjournment to another. If thefe con-
tinuance&are omitted, the caufeis thereby difcontinued, and
the defendant is difcharged j'/w^ die, without a day, for this
turn : for by his appearance in court he has obeyed the com-
mand of the king's writ ; and, unlefs he be adjourned over
to a day certain, he is no longer bound to attend upon that
fummons ; but he mufl be warned afreih, and the whole
fnuH begin de novo.
Now it may fometimes happen, that after the defendant
has pleaded, nay, even after iffue or demurrer joined, there
may have arifen fome new matter, which it is proper for the
defendant to plead ; as, that the plaintiiF, being a feme-fole,
is fince married, or that {he has given the defendant a re-
Jeafe, and the like : here, if the defendant takes advantage
of this new matter,- as early as he poflibly can, viz. at the
day given for his next appearance, he is permitted to plead it
in what is called a plea puis darrein continuance ^ or fir.ce the
J^ft adjournment. For it would be unjufl: to exclude hin^
from
Ch. 21. Wrongs. ^17
from the benefit of this new defence, which It was not m his
power to make when he pleaded the fornrcr. But it is dan-
gerous to rely on fuch a plea, without due confideration ; for
it confeflkrs the matter which was before in difpute between
the partits =. And it is not allowed to be put in, if any con-
tinuance has intervened between the arifing of this frefii
matter and the pleading of it: for then the defendant is guilty
of nglet, or laches^ and is fuppofed torely on the merits o
his former plea. Alfo it is not allowed after a demurrer is
determined, or verdi<Sl given ; becaufe then relief may be
had in another way, namely, by writ of audita qutreloy of
which hereafter. And thefe pleas puis darrein c&ntinuame^
when brought to a demurrer in law or iflue of fal, fhaJI be
determined in like manner as other pleas.
We have fald, that demurrers, orqueftlons concerning the
fuffc'tency of the matters alleged in the pleadings, are to be
determined by the judges of the court, upon folemn argument
by counfel on both fides ; and to that end a demurrer book
is made up, containing all the proceedings at length, which,
are afterwards entered on record ; and copies thereof, called
paper-booksy are delivered to the judges to perufe. The re-
cord ^ is a hiftory^of the moft material proceedings i the
caufe, entered on a parchflient roll, and continued down to
the prefent time ; in which mud be dated the original writ
and fummons, all the pleadings, the declaration, view or
9jtr prayed, the imparlances, plea, replication, rejoinder,
continuances, and whatever farther proceedings have been
had ; all entered verbatim on the roll, and alfo the iflue or
demurrer, and joinder therein.
These were formerly all written, as indeed all public
proceedings were, in Norman or French law, and even the
arguments of tlie counfel and decifions of the court were ia
the fame barbarous dialedV. An evident and (hameful badge,
it mud be owned, of tyranny and foreign fervitude ; being
introduced under the aufpices of William the Norman, and
Cro. Eiii. 49. ' Append. NoJJ. ^ 4. NoJU. C
his
3iS Private BookIIL
hisfoTis : whereby the ironical obfervation oftheRoman fatyrlft
came to be literally verified, that *' Gallia cauftdicos docuitfa~
*' cunda Britamios^."^ This continued till the reign of Edward
III. ; who, having employed his arms fuccefsfully in fub*
diiing the crown o( France, thought it unbefeemingthe dignity
of the victors to ufe any longer the language of a vanquifhed:
country. By a flatute therefore, palTed in the thirty- fixth
year of his reign *, it was enafled, that for the future all
pleas fliould be pleaded, (hewn, defended, anfwered, debated,
and judged in the Englifh tongue ; but be entered and en-
rolled in Latin : (in like manner as don Alonfo X, king of
Caftile, (the great-grandfather of our Edward III,) obliged
Jiis fubjels to ufe the Caftilian tongue in all legal proceed-
ings 'j and as, in 1286, the German language was efta-
blifhed in the courts of the empire ^. And perhaps if our
legiflature had then diredled that the writs themfelves, which
are mandates from the king to his fubjefts to perform certain
als or to appear at certain places, fliould have been framed
in the Englilh language, according to the rule of our antient
law ', it had not been very improper. But the record or enroll-
ment of thofe writs and the proceedings thereon, which was
calculated for the benefit of pofterity, was more ferviceable
(becaufe more durable) In a dead and immutable language
than in any flux or living one. The pra6lifers, however, being
ufed to the Norman language, and therefore imagining they
could cxprefs their thoughts more aptly and more conclfely
in that than in any other, ftill continued to take their notes
in law French : and of courfe when thofe notes came to be
publiihed, under the denomination of reports, they were
printed in that barbarous dialet ; which, joined to the addi-
tional terrors of a Gothic bhck letter, has occafioncd many
a ftudent to throw away his Plowden and Littleton, without
venturing to attack a page of them. And yet in reality, upon
a nearer acquaintance, they would have found nothing very
formidable in the language 5 which differs in it's grammar
6 yuv. XV. I II. * Uid. xxix. a35.
^ c. 15. ^ M"rr. c. 4. z.
' Med. Un. Hift. xx. 211.
and
Ch. 21. Wrongs. 319
and orthography as much from the modem French, as the
didlion of Chaucer and Gower does from that of Addifon
and Pope. Befules, as the Englifh and Norman languages
were concurrently ufcd by our anceftors for feveral centuries
together, the two idioms have naturally aflimilated, and mu-
tually borrowed from each other : for which reafon the gram-
matical conftruclion of each is fo very much the fame, that
I apprehend an Englifhman (with a week's preparation)
would underfland the laws of Normandy, colleled in their
grand coujlumter^ as well if not better than a Frenchman bred
within the walls of Paris.
The Latin, which fucceeded the French for the entry
and enrollment of pleas, and which continued in ufe for four
centuries, anfwers fo nearly to the Englifli (oftentimes word
for word) that it is not at all furprizing it fhould generally
be imagined to be totally fabricated at home, with little more
art or trouble than by adding Roman terminations to Englifli
words. Whereas in reality it is a very unlverfal dialedl,
fpread throughout all Europe at the irruption of the northern
nations, and particularly accommodated and moulded to
anfwer all the purpofes of the lawyers with a peculiar exad-
nefs and precificn. This is principally owing to the fimpli-
city, or (if the reader pleafes) the poverty and baldnefs of
it's texture, calculated to exprefs the ideas of mankind juft
as they arife in the human mind, without any rhetorical
flouriflies, or perplexed ornaments of ftyle : for it may be
obferved, that thofe laws and ordinances, of public as well
as private communities, are generally the moll eafily under-
flood, where (Irength and perfplcuity, not harmony or ele-
gance of exprelTion, have been principally confulted in com-
piling them. Thefe northern nations, or rather their legif-
latoTS, though they refolved to make ufe of the Latin tongue
in promulging their laws, as being more durable and more
generally known to their conquered fubjedls than their own
Teutonic dialers, yet (either through choice or necefiity)
have frequently intermixed therein fome words of a Gothic
ariginal i which is, more or lefs, the cafe in every country
of
320 I* R I V A T E Book lit
of Europe, and therefore not to b^ imputed as any peculiar
blemifh in our Englifti legal latinity "'. The truth is, what
is generally denominated law-latin is in reality a mere tech-
nical language, calculated for eternal duration, and ea^fy to
be apprehended both in prcfent and future times ; and ori
thofe accounts beft fuited to prcferve thofe memorials which
arc intended for perpetual rule^ of aftion. The tude pyra-
mids of Egypt have endured from the earlieft ages, while the
more modern and more elegant {trulures of Attica, Rome,
and Palmyra, have funk beneath the ftroke of time.
As to the objelion of locking up the law in a ftrange and
unknown tongue, this is of little weight with regard to re-
cords which few have occafion to read but fuch as do, or
ought to, underfland the rudiments of Latin. And befides
it may be obferved of the law-latin, as the very ingenious
Cr John Davis " obfervcs of the law-french, '* that it is fo
i very eafy to be learned, that the meaneft wit that ever
*' came to the ftudy of the law doth come to undcrftand it
*' aJmoft perfectly in ten days without a reader."
It is true indeed that the many terms of art, with which
the law abounds, are fufficiently harfh when latinized, (yet
not more fo than thofe of other fciences,) and may, as Mr.
Selden obferves , give offence " to fome grammarians of
** fqueamifh ftomachs, who would rather chufe to live in
** ignorance of things the moft ufeful and important, than
** to have their delicate ears wounded by the ufe of a word
** unknown to Cicero, Salluft, or the other writers of the
** Auguftan age." Yet this is no more than muft unavoid-
ably happen when things of modern ufe, of which the Ro-
mans had no idea, and confequently no phrafes to exprefs
The following fentence, *' Ji quis fame ftamp, la the laws of the Bur-
ad battalia curtefua exierit, *if any one gundians on the continent, before the
goes out of his own court to fight,** end of the fifth century. (Add. I.e. 5*
&c. may raife a fmile in the ftudent as 2.)
a flaming modern anglicifm : but he Pref. Rep.
una/ meet with it, among others of the o Pref. ad Eadtr.t'*
them,
Gh. 21. Wrongs. 321
them, come to be delivered in the Latin tongue. It would
puzzle the molt clafTical fcholar to find an appellation, in his
pure latinity, for a conftable, a record, or a deed of feoffment :
it is therefore to be imputed as much to neceffity, as ignorance^
that they were fliled in our forenfic dialcQ conjlahulariusy tC'
corduTTiy zwdi feoff ameiit urn. Thus again, another uncOuth word
of our antient laws, (for I defend not the ridiculous barbarifmS
fometimes introduced by tbe ignorance oi modern pradlifers,)
the fubftantive mitrdrum^ or the verb murdrare, however harfh
and unclaflical it may feem, was necefTarily framed to exprefs
a particular offence; (ince no other word in being, orr/W^/-^,
interficere, necare, or the like, Was fufficient to exprefs the /*
tention of the criminal, or quo afiimo tht adl was perpetrated}
and therefore by no means came up to the notion of murder
at prefent entertained by our law ; viz. a killing witk malice
aforethought.
A fimilar neceftity to this produced a firtlllar e{Fcl at
Byzantium, when the Roman laws were turned into Greek
for the ufe of the oriental empire ; for, without any regard
to Attic elegance, the lawyers of the imperial courts made
iio fcruple to trartflate ^dei cowtniffarios, (pi$ix6fjL/ji,ia(TaiisgP }
cubiculuniy XvQakXnov ^ ; JUium-familiaSf ZTai$a-(pa[xiXicxi ^ }
repudiuniy pi-mi^iiV ' ; corfiprotniffutrij KOfjL7r^o/j.io-ffov ' ; reveretJtia
et obfequium^ fivs^tmx )t,xi o(r<rfi'&v " ; and the like. They
ftudied more the exal and ptecife import of the words, than
the neatnefs and delicacy of their cadence. And my acade-
mical readers will excufe me for fuggefting, that the terms of
the law are not more numerous, more uncouth, or more dif-
ficult to be explained by a teacher, than thofe of logic, phyfics,
and the whole circle of Ariftotle's philofophy, nay even of
the politer arts of architelare and it's kindred ftudies, or the
fcience of rhetoric it felf. Sir Thomas More's famous legal
queftion* contains in it nothing more difficult, than the de-
No-v. \. c. 1. * Nov. 82. c. It.
< Nov. 8. cdi}. dnjlantimf. " Ncv. 78 f. 2.
' Ncv. xi^ {, 1. Scepag. 149.
JiU. c. 8.
Vol. III. A a fioltion
322 Private Book III.
finition which in his time the phllofophers currently gave of
their materia primoy the groundwork of all natural knowlege ;
that it is, " nec^ue quid, neque quantum y iieque quaky neque aliquid
** eorum quibus ens deterruinatur " or it's fubfequent explana-
tion by Adrian Heercboord, who affures us'' that " materia
*^ prima npn eji corpus ^ neque per formam corporeitaiis, neqiie
** per fimplicem ejfejitiam : tji t amen ens ^ et quidem fubjlatitia^
*' licet iuLompleia ; hnhetque actum ex fe entitativum^ et Jimul
" /? potentia fuhjeBiva^ The law therefore, with regard
to it's technical phrafes, (lands upon the fame footing with
other fludies, and requefts only the fame indulgence.
. This technical Latin continued in ufe from the time cf it's
^rft introduftiofl, till the fubverfion of our antient conftitu-
tion under Cromwell j when, among many other innovations
in the law, fomc for the better and fome for the worfe, the
language of our records was altered and turned into Englifh.
But, at the reftoration of king Charles, this novelty was no
longer countenanced ; the praQifers finding it very difficult
to exprefs thetnfelves fo concifely or fignificantly in any other
language but the Latin. And thus it continued without any
fenfible inconvenience till about the year 1730, when it was
again thought proper that the proceedings at law fhould be
done into Englifh, and it was accordingly fo ordered by fta-
tute 4 Geo. IL c. 26. This provifion was mcde, according
to the preamble of the ftatute, that the common people might
have knowlege and underftanding of what was alleged or done
-for and againft them in the procefs and pleadings, the judg-
ment and entries in a caufe. Which purpofe has, I fear, not
been anfwcred , being apt to fufped that'the people are now,
after many years experience, altogether as ignorant in matters
of law as before. On the other hand, thcfe inconveniences
have already arifen from the alteration ; that now many
clerks and attorneys are hardly able to read, much lefs to
underftand, a record even of fo modern a date as the reign of
George the firft. And it has much enhanced the cxpenfe of
all legal proceedings : for fince the pratifers are confined (for
Ph'tlofepb^ vatural. c. i, a8, ?<.
4 the
Ch. 21. Wv R q If G ?. 323^
the fate of the ftamp dytie^,. which are thereby confiderably.,
increafeilj to write only a flated number of Words in a fheet j:,
and as the Enghfh language, through the multitude of it's
particles, is rnuch more verbofe than the Latin ; it follow^
that the number of fhcets muft be very much augmented by
the change y. The tranflation alfo of technical phrafcs, and
thf. names of writs and other procefs, were found to be fo very.
rKH.-uIiais, (a writ of ni^prjus, quare iinped'tt,JierifactaSi habeas-,
corpus, afidths reft, not being capable cf an Englifti drefs with
any dc-^-r . ' ':. f^,) th,4 in two years time it was found
iiertflary .^ m ' .. i;ew af^:, 6 Ceo. IL. c. 14 j which al-
lows all technical words to continue in the ufual language,-
and has thereby almoft. defeated every beneficial purpofe of
the former ftatute.
What is faid of the alteration of language by the fta-
tute 4 Geo. ii. c. 26. will hold equally ftrong with rcfpefl: to
tJie prohibition of ufmg the antient immutable court hand in
writing the records or other legal proceedings ; whereby the
reading of any record that is fifty years old is now become
the objeft of fcience, and calls for the help of an antiquarian.
But that branch of it, which forbids the ufe of abbreviations,
feems to be of more folid advantage, in delivering fuch pro-
ceedings from obfcurity : according to the precept of Jufti-
nian^; ** ne per fcripturam aliqua jiat in pojlerum duhitatioy
** jubemus non per figlorum captiones et compel idiofa enigmata
** ejufJem codicis textum confcribi,fed per liter arum confequentiam
** explanari concedimus." But, to return to our demurrer.
When the fubftance of the record is completed, and co-
pies are delivered to the judges, the matter of law upon which
the demurrer is grounded is upon folemn argument deter-
mined by the court, and not by any trial by jury ; and judg-
ment is thereupon accordingly given. As, in an adtion of
trefpafs, if the defendant in his plea confeflcs the fat, but
y For inftance, thefe three words, " form of the ftatute."
" ftcundum formam ftatuti" are now * dt tinctft. digtft, 13.
convcTCedinto feven, according co the
A a 2 juftifie
324 Private Book III.
juftifies it eaufa venatioms, for that he was hunting j and to
this the plaintiff demurs, that is, he admits the truth of the
plea, but denies the juftification to be legal : now, on arguing
this demurrer, if the court be of opinion, that a man may not
jullify trefpafs in hunting, they will give judgment for the
plaintiff; if they think that he may, then judgment is given
for the defendant. Thus is an iflue in law, or demurrer,
difpofed of ( I ).
An iflue of fal takes up more form and preparation to
fettle it ; for here the truth of the matters alleged muft be
folemnly examined and eftablifhed by proper evidence in the
channel prefcribed by law. To which examination, of fals,
the name of trial is ufually confined, which will be treated
of at large in the two fucceeding chapters.
(i) The court of king's bench upon a demurrer held it to be
a good juflification that the defendant entered the plaintiff's clofe
iu purfuit of a fox. See <z/f, 213. n. 4.
Ch. 22. Wrokcs, 325
CHAPTER THE T WE N T Y-SECONp.
OF THE SEVERAL SPECIES OF
TRIAL.
THE uncertainty of legal proceedings is a notion io
generally adopted, and has fo long been the (landing
theme of wit and good humour, that he who (hould attempt
to refute it would be looked upon as a man, who was either
incapable of difcernment lumfelf, or dfe meant to impofc
upon others. Yet it may not be amifs, before we enter
upon the feveral modes whereby certainty is meant to be ob-
tained in our courts of juftice, to inquire a little wherein
this uncertainty, fo frequently complained of, confifls j and
to what cau&s it owes it*s original.
It hath fometlmes been faid to owe it's original to the
number of our municipal conftitutions, and the multitude of
our judicial decifions' ; which occafion, it is alleged, abun-
dance of rules that militate and thwart with each other, as the
fcntiments or caprice of fucceffive legiflatures and judges have
happened to vary. The fa<St, of multiplicity, is allowed ; and
that thereby the refearches of the ftudent arc rendered more
difficult and laborious : but that, with proper induftrv, the
refult of thofc inquiries will be doubt and indecifion, is a
confequence that cannot be admitted. People are apt to be
angry at the want of fimplicity in our laws: they miftake va-
tiety for confufion, and complicated cafes for contradictory.
See tht preface to fir John DaTies'repotti: whttein anjf tf tb following
tofxt 3tt dlfcwiTcd more % large*
A a 3 They
gi6 Private Book III.
They bring us the examples of arbitrary governments, of
Denmark, Mufcovy, and Pruflia ; of wild and uncultivated
nations, the favages of Africa and America j or of narrows
domeftic lepubHcs, in antient Greece and modern Svi'itzer-
land ', and unreafonably require the fame paucity of laws, the
fame concifenefs of practice, in a nation of freemen, a polite
and commercial people, and a populous extent of territory.
In an arbitrary, defpotic government, where the lands are
at the difpofal of the prince, the rules of fucceffion, or the
mode of enjoyment, niufl: depend upon his will and pleafure.
Hence there can be but few legal determinations relating to the
property, the dcfcent, or the conveyance of real eftates; and
the fame holds in a llronger degree with regard to goods and
chattels, and the contrals relating thereto. Under a tyran-
nical fway trade muft be continually in jeopardy, and of con-
fequence can never be extenfive : this therefore puts an end
to the neceflity of an infinite number of rules, which the
Englifh merchant daily recurs to for adjufting commercial dif-
ferences. Marriages are there ufually contracted with flaves j
^r at leaft women are treated as fuch : no laws can be there-
fore expelled to regulate the rights of dower, jointures, and
marriage fettlements. Few alfo are the perfons who can
claim the privileges of any laws; the bulk of thofe nations,
urz. tlie commonalty, boors, or peafants, being merely vil-
leins and bondmen. Thofe are therefore left to the private
coercion of their lords, are efteemed (in the cont^taplation' of
thefe hoafled legiflators) incapable of either right or injury,
and of confequcnce are entitled to no redrefs. We may f(^e,
in thefe arbitrary ftates, hd^-teFge-^'fidld of legal contefts is
already rooted upjarid deftroyeit.'
Again;: Wfefe'^e a jp^hrirM t'iikifd-pf'dple^ as the favages of
America ait,'ftfaTigerstd'fcieiTfce^ to'ttmtmcrcc, and the itrts
as wdV6^'t^n^;dh'K^tc^'i5^6i'l^iiiiity, vre might perhaps -be
content, as. ffime of .them are faid to be, to refer all difputes
to the.next man we meet upon theroad^and fa put a fliort end
to
Ch. 22. Wrongs. 327
to every controverfy. For in a ftate of nature there Is no
room for municipal laws ; and the nearer any nation ap-
proaches to that ftate, the fewer they will have occafion for.
When the people of Rome were little better than fturdy
fhepherds or herdfmen, all their laws were contained in ten
or twelve tables ; but as luxury, politenefs, and dominion
increafed, the civil law increafed In the fame proportion ;
and fwtlled to that amazing bulk which it now occupies,
though fuccefllvely pruned and retrenched by the emperors
Thecdofius and Juftinian,
In like manner we may laftly obferve, that, in petty Hates
and narrow territories, much fewer laws will fuflice than in
large ones, becaufe there are fewer objedls upon which the
laws can operate. The regulations of a private family are
(hort and well-known ; thofe of a prince's houfhold are
necelTarily more various and difFufe.
The caufcs therefore of the multiplicity of the Engllfh
laws are, the extent of the country which they govern; the
commerce and refinement of it's inhabitants ; but, above all,
the liberty and property of the fubjedl. Thefe will naturally
produce an infinite fund of difputes, which rnufl be termi-
nated in a judicial way : and it is efTential to a free people,
that thefe determinations be publifhed and adhered to ; that
their property may be as certain and fixod as the very confti-
tution of their flate. For though in many other countries
every thing Is left ii the breaft of the judge to determine, yet
with us he Is only to declare and pronounce, not to make or
new-modely the law. Hence a multitude of declfions, or cafes
adjudged, will arife : for feldom will it happen that any one
rule will exally fult with many cafes. And in proportion
as the declfions of courts of judicature are multiplied, the law
will be loaded with decrees, that may fometlmes (though
rarely) Interfere with each other : either becaufe fucceeding
judges may not be apprized of the prior adjudication ; or be-
caufe they may think differently from their predecefTors 9 or
becaufe the fame arguments did not occur formerly as at pre-
A a 4 fcnt i
32$ Private Book III,
fent ; or, in fine, becaufe of the natural imbecility and im-<-
pcrfelion that attends all hum^n proceedings. But where-
ever this happens to be the cafe in any material point, the
legjUature is ready, and from time to time both may, and
frequently dpes, intervene to remove the doubt ; and, upon
due deliberation had, determines by a declaratory ftatute
how the law {hall be held for the future.
Whatever inftances therefore of contradition or un-
certainty may have been gleaned from our records, or reports,
muft be imputed to the defeats of human laws in general,
and are not owing to any particular ill confl.rul:ion of the
Englifli fyftem. Indeed the reverfe is moft (Iridly true. The
Englifli law is lefs embarrafled with inconfiftent rcfplutions
and doubtful queftions, than any other known fyftem of the
fame extent and the fame duration. ' I may inftance in the
civil law : the text whereof, as colleled by Juftinian and his
agents, is extremely voluminous and diffufe ; but the idle
comments, obfcure gloflcs, and jarring interpretations graft-
ed thereupon by the learned jurifts, are literally without
number. And thefe glofTes, which are mere private opinions
of fcholaftic doclors, (and not like our books of reports, judi-r
cial determinations of the court,) are all of authority fufficient
to be vouched and relied on: which muft needs breed great
diftrad^ion aiid confuficn in their tribunals. The fame may be
faid of the canon law; though the text thereof is not of half
the antiquity with the common law of England ; and though
the more antient any fyftem of laws is, the more it is liable
to be perplexed v, ith the multitude of judicial decrees. When
therefore a body of laws of fo high antiquity as the Engliili,
is in general fo clear and perfpicuous, it argues deep wif-
dom and forefight in fuch as laid the foundations, and
great care and circtimfpedipn in fuch a^ have b^ilt the
fuperftrudure.
But |s not (it will be aficed) the" multitude of law-fults,
which we daily fee and experience, an argument againft the
clearnefs and certainty of the law itfelf r By no means : for
among
Ch. 22. Wrongs. ^2^
among the various dlfputcs and controverfies which are daily
to be met with in the courfe of legal proceedings, it is ob*
vious to obferve how very few arife from obfcurity in the
rules or maxims of law. An alion fliall feldom be heard of,
to determine a queftion of inheritance, unlefs the faft of the
defccnt be controverted. But the dubious points, which arc
ufually agitated in our courts, arife chiefly from the difficulty
there is of afcertainirig the intentions of individuals, in their
folemn difpofitiont of property j in their contrails, convey-
ances, and teftameuts. It is an objel indeed of the utmofl:
importance in this free and commercial country, to lay as few
reftraints as poffible upon the transfer of pofleflions from hand
to hand, or their various defignations marked out by the pru-
dence, convenience, neceffities, or even by the caprice, of
their owners : yet to invefligate the intention of the owner is
frequently matter of difficulty, among heaps of entangled
conveyances or wills of a various obfcurity. The law rarely
hefitates in declaring it's own meaning; but the judges arc
frequently puzzled to find out the meaning of others. Thus
the powers, the intereft, the privileges, and properties of a
tenant for life, and a tenant in tail, are clearly dillinguiffied
and precifely fettled by law : but, what words in a will (hall
conltitute this or that eftate, has occafionally been difputcd
for more than two centuries pad ; and will continue to be
difputed as long as the careleflTnefs, the ignorance, or fingu-
larity of teftators ftiall continue to cloath their intentions ia
dark or new-fangled expreflionsr
But, notwithftanding fo vaft an acceffion of legal contro-
verfies, arifing from fo fertile a fund as the ignorance and
wilfulnefs of individuals, thefe will bear no comparifon in
point of nun>ber to thofc which are founded upon the diflio-
pefty, and difingenuity of the parties : by either their fuggeft-
ing complaints that are falfe in fat, and thereupon bringing
groundlefs anions ; or by their denying fuch fals as arc true,
in fctting up unwarrantable defences, ex/a^a oritur Jus : if
therefore the fak be prcverted or mif-reprefented, the law
which arife^ from thence will unavoidably be unju (I or partial.
And,
33 Private Book III.
And, in order to preyen,t this* it is nece/Taryto fet right the
fal, and eltablifli the truth coatcnded for, by appealing to
fome mode oi probation or iriulj which the law of the country
has ordained for a criterion of truth and falfliood.
These modes of probation or trial form in every civilized
country the great objeft of judicial decifions. And experi-
ence vvill abundantly fliew, that above a hundred of our law-
fuits arife from difputed fadls, for one,where the law is
doubted of. About twenty days in the year are fufhcient
in Wefliminfter-hall, to fettle (upon folemn argument) every
demivrrer or other fpecial point of law that arifes throughout
the nation : but two months are annually fpent in deciding
the truth of fals, before fix diftinl tribunals, in the feveral
circuits of England ; exclufive of Middlefex and London,
which afford a fuppiy of caufes much more than equivalent
to any two. of the largeft <;ircuits.
Trial then is the examination of t^e matter of izt in
iflue ; of which there are many di^erentfpecies, according
to the difference of the fubjedt, or thing to be tried : of all
which we will take a c.urfory view in this and the fubfequent
chapter. For the law of England fo induftrioufly endea-
vours to inveftigate truth at any rate, that it will not confine
itfelf to one, or to a few^ manners of trial ; but varies it's
examination of fgcis ^ccprding to the nature of the fals
themfelves: this being the. one invariable principle purfued,
that as well as the bed method of trial, as the beft evidence
upon that trial,- which the liaturebf the cafe affords, and no
other, fliall be admitted in the'Englifli cburts-of juftice.
The fpecies of tri.ils in civil cafes are feveni/ By'r^^^pr^^;
by infpecl'ion^ or ey.annnaUon ;.h^. certificate. ;' by iv'tttiejjes ; by
wager, of b^tel ; b-y vja^er ,of Jatv ^ , and by Jury. " '
I. First then of the trial by record. This is only ufed in
r one p?irticular irtftance : .and that is where a matter of record
13
Ch: 22. Wrong s. 331
is pleaded in any aclion, as a fine, a judgment, or the like ;
and the oppofite party pleades, ** nul t'tel record" that there is
no fuch matter of record exifting : upon this, iffiie is tender-
ed and joined in the following form, " and this he prays may
** be inquired of by the record^ and the other doth the like 5"
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
" elfe he fliall be condemned 5" and, on his failure, his an-
tagonift fhall have judgment to recover. The trial therefore
of this iflue is merely by the record ; for, as fir Edward Coke *
obferves, a record or enrollment is a monument of fo high a
nature, and importeth in itfelf fuch abfolute verity, that if it
be pleaded that there is no fuch record, it fhall not receive any
trial by witnefs, jury, or otherwife, but only by itfelf. Thus
titles of nobility, as whether earl or no earl, baron or no ba-
ron, fhall be tried by the king's writ or patent only, which is
matter of record*^. Alfo In cafe of an alien, whether alien
friend or enemy, fhall be tried by the league or treaty be-
tween his fovereign and ours; for every league or treaty is of
record **. And alfo, whether a manor be to be held in antient
demefne, or not, fhall be tried by the record of domejday in
the king's exchequer. ,
II. Trial by infpeBion or examhiailon^ is when for the
greater expedition of a caufe, in fome point or IlTue being
either the principal queftion, or arinng collaterally out of it,
but being evid'entlytheobje(5lof fenfe, the judges of the court,
upon the teftimony of their own fenfes, (hall decide the point
in difpute. For, where the affirmative or negative of a
queftion is matter of fuch obvious determination. It is not
thought neceflary to fummon a jury to decide it j who arc
properly called in to inform the confcience of the court itt
-'refpel o^ dubioits facts : antl therefore when the fat, from It's
nature, muft be evident to the court eitiier from ocular de-
monftration or other irrefragable proof, there the law departs
'' I Inft. 117. 260. * fj Rep. 31.
* 6 Rep. 53,
from
332
Private
BqokIII.
from it's ufual refort, the verdicl of twelve men, and relies
on the judgment of the court alone. As in cafe of a fuit to
i:evcrfe z fine for non^age of the cognizor, or to fet afidc a
itatute or recognizance entered into by an infant ; here, and
in other cafes of the like fort, a writ (hall iffue to the flie-
riff* ; commanding him that he conflrain the faid party to
appear, that it may be afcertained by the view of his body
by the king's juftices, whether he be of full age or not j *' ut
* per afpeclum corporis fui covjiare poterit jujliaartis nojlrisyft
^^ praediBus A Jit pletme aetatis necne^ " If however the court
bas, upon infpedion, any doubt of the age of the party,
(as may frequently be the cafe,) it may proceed to take proofs
of the fal J and, particularly, may examine the infant him-
felf upon an oath of voir, direy veritaiem dicere^ that is, to
make true anfwer to fuch queftions as the court (hall demand
of him : or the "court may examine his mother, his god
father, or the like s.
In like manner if a defendant pleads in abatement of the
fuit that the plaintiff is dead, and one appears and calls him-
felf the plaintiff", which the defendant denies ; in this cafe
the judges (hall determine by infpedion and examination,
whether he be the plaintiff or not ''. Alfo if a man be found
by a jury an idiot a nativitate, he may come in perfon into
the chancery before the chancellor, or be brought there by
bis friends, to be infpefted and examined, whether idiot or
not: and, if upon fuch view and inquiry, it appears he is
not fo, the verdicl of the jury, and all tbe proceedings
hereon, are utterly void and inftantly of no effect ^
Another inftance in which the trial by Infpedion may
be ufed, is when upon an appeal of maihem, the iffue joined
is whether it be maihem or no maihem, this (hall be decided
by the court upon infpedion, for which purpofe they may
9 Rep. 31. though now it is tried by infpedtion,
' This queftion of non age was /or- 2 Roll. Abr. 573.
Sierly, according to Glanvil, /'/. 13. f. * 9 Rep. 30.
15.) tried fcy a jury f eight mei> * Ihui. 31,
call
Ch. 22. Wrongs. 333
call in the afliftance of furgeons J. And, by analogy to this,
in an aftion of trcfpafs for maihem, the court (upon vievr
of fuch maihem as the plaintiff has laid in his declaration, or
which is certified by the judges who tried the caufe to be the
fame as was given in evidence to the jury) may increafe the
damages at their own difcretion '^ *, as may alfo be the cafe
upon view of an atrocious battery'. But then the battery
muft likewifc be alleged fo certainly in the declaration, that
it may appear to be the fame with the battery infpedled.
Also, to afcertain any circumftances relative to a particu-
lar day paft, it hath been tried by an infpe<fiion of the alma-
nac by the court. Thus, upon a writ of error from an in-
ferior court, that of Lynn, the error affigned was that the
judgment was given on a funday, it appearing to be on
26 February, 26 Eliz. and upon infpelion of the almanacs
of that year it was found that the 26 of February In that
year adually fell upon a funday : this was held to be a fuffi-
cient trial, and that a trial by a jury was not neceflary, al-
thcrugh it was an error in faft ; and fo the judgment was re-
verfed ". But, in all thefe cafes, the judges, if they conceive
a doubt, may order it to be tried by jury,
III, The trial by ceriificnte is allowed in fuch cafes, where
the evidence of the perfon certifying is the only proper crite-
rion of the point in difpute. For, when the al: in queftion
lies out of the cognizance of the court, the judges muft rely
on the folemn averment or information of perfons in fuch a
ilation, as affords them the moft clear and competent know-
lege of the truth. As therefore fuch evidence (if given to
a jury) muft have been conclufive, the law, to favc trouble
and circuity, permits the fa<St to be determined upon fuch
certificate merely. Thus, i . If the iffue be whether A was
abfent with the king in his army out of the realm in time of
war, this (hall be tried " by the certificate of the marefchal of
J I Rdl. Abr. 578. * Cro. Eli. 227,
k t Sid. loS. ^ JLlu. \ ici.
Haidr. 408,
ttc
334 P ^ I V A T E Book III.
the klng*8 hoft in writing under Km feal, which fliall be fent
to the juftices. 2. If, in order to avoid an outlawry or the
like, it was alleged that the defendant was in prifon, ultra
marey at Bourdeaux, qr in the fcrvice of the mayor of Bour-
deaux, this fhould have been tried by the certificate of the
mayor ; and the like of the captain of Calais ^. But when
this was law p, thofe towns were under the dominion of the
crown of England. And therefore, by a parity of reafon, it
fnould now hold that in fimilar cafes, arifing at Jamaica or
Minorca, the trial ftiould be by certificate from the governor of
thofe iflands. We alfo findi that the certificate of the queen*s
meflengcr, fent to fummon home a peerefs of the realm, was
formerly held a fufficient trial of the contempt in refufing to
obey fuch fummons. 3. For matters within the realm, the
cuftoms of the city of London fliall be tried by the certificate
of the mayor and aldermen, certified by the mouth of their
recorder'^ ; upon a furmife from the party alleging it, that the
cuftom ought to be thus tried : elfe it muft be tried by the
country'. As, the cuftom of diftributing the effects of free-
men deceafed ; of enrolling apprentices ; or that he who is
free of one trade may ufe anotlier ; if any of thefe or other
fimilar points come in ifiue. But this rule admits of an ex-
ception, where the corporation of London is party, or inte-
refted, in the fuit-, as in an adlion brought for a penalty in-
flidled by the cuftom : for there the reafon of the law will not
endure fo partial a trial ; but this cuftom ftiall be determined
by a jury, and not by the mayor and aldermen, certifying by
the mouth of their recorder ^ 4. In fome cafes, the fheriff
of London's certificate (hall be the final trial : as if the iffue
be, whether the defendant be a citizen of London or a fo-
reigner , in cafe of privilege pleaded to be fued only in the
city courts. Of a nature fomewhat fimilar to which is the
trial of the privilege of the univerfity, when the chancellor
claims cognizance of the caufe, becaufe one of the parties is a
9 Rep. 31. * ^to.ALr. t. trial. //. 96.
f 2 Roll. Abr. 583. * Hob. 85.
1 Dyer. 176, 177. V Co. Litt. 74.
' Co. Litt. 74. 4 Burr. 24S.
privileged
Ch. 22. Wrong s, 335
privileged perfon. In this cafe, the charters,, confirmed by
aft of parJiament, dired the trial of the queftion, whether a
privileged perfon or no, to be determined by the certificate
and notification of the chancellor under feal ; to which it
hath alfobeen ufual to add an affidavit of the fai : but if the
parties be at iflTue between themfelves, vi hetlier A is a member
of the univerfity or no, on a plea of privilege, the trial (hall
be then by jury, and not by the chancellor's certificate " : be*
caufe the charters direft only that the privilege be allowed ott
the chancellor's certificate, when the claim of cognizance is
ttiade by him, and not where the defendant hiiti-felf pleads his
privilege : fo that this n^uft be left to the ordinary courfe of
determination. 5. In matters of ecclefiaftical !Jurifdilion, as
marriagef and of courfe general bajlardy, and alfo excommum-
caticny and crderSy thefe, and other like matters, fliall be tried
by the bifliop's certificate "". As if it be pleaded in abate-
ment, that the plaintiff is excotnmfinica'ted, and iflue is join-
ed thereon ; or if a man claims an eftate by defcent, and the
tenant alleges the demandant to be a baftard ; or if on a writ
df dower the heir pleads no marriage ; or if the iffue in a
quare impedit be, whether or no the church be full by infti-
tution ; all thefe, being matters of mere ecclefiaftical cogni-
zance, fhall be tried by certificate from the ordinary. But
in an a6lion on the cafe for calling a man baftard, the de-
fendant having pleaded in juftification that the plaintiff was
really fo, this was direfted to be tried by a jury ^ : becaufe,
whether the plaintiff be found either a general or fpecial baf-
tard, the juftification will be good ; and no queftion of fpe-
cial baftardy fliall be tried by the bifliop's certificate, but by
ajury)". For a fpecial baftardy is one born before marriage, pf
parents who afterwards intermarry \ which is baftardy by our
law, though not by the ecclefiaftical. It would therefore \>c
improper to refer the trial of that queftion to the biftiop ; who,
whether the child be born before or after marriage, will bf
fure to return or cartify him legitimate ^. Ability of a clerk [ 3^5 3
a Roll. Abr. 583. ' Dyer. 79.
^ Co. LiJt. 74. a Lev. 250, See intrcd. to the great charter.
"Hob. 179. tdit. Oxifi. Jub anr.iti'^^.
. , 'prefciited,
33^ 1* R I V A T E Book ItU
- prefented *, aimUfton^ injliiutiwy and dgprivation of a clerk^
Ihall alfo be tried by certificate from the orainary or metropo-
litan, becaufe of thefc he is the moft. co.npcrent judge ^ but
induBion fhall be tried by a jury, becaufe it is a rtiattcr of
public notoriety S and is likewife the corporal inveliiture of
the temporal profits. Rejignation of a benefice may be tried
in either way ^ ; but it feems moft properly to fall within the
bifliop's cognizance. 6. The trial of all cuftoms and prac-
tice of the courts (hall be by certificate from the proper offi-
cers of thofc courts refpeftively ; and, what return was made
on a writ by the (heriffor under- fherifF, fhall be only tried by
his own certificate*. And thus much for thofe feveral iflues,
or matters of faft, which are proper to be tried by certificate.
IV. A FOURTH fpeeies of trial is that by tvitnejes, pef
teftesy 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 breaft his fentence upon the credit
of the witnefles examined : but it is very rarely ufed in our
law, which prefers the trial by jury before it in almoft every
inftance. Save only, that when a widow brings a writ of
dower, and the tenant pleads that the hulband is not dead ;
^his being looked upon as a dilatory plea, is, in favour of the
widow and for greater Expedition, allowed to be tried by writ-
nefles examined before the judges: andfo, faith Finch ^ fhall
no other cafe m our law. But fir Edward Coke ^ mentions
fome others : as to try whether the tenant in a real alion
was duly fummoned, or the validity of a challenge to a juror :
io that Finch's obfervation muft be confined to the trial of
direft, and not collateral, ifTues. And in every cafe fir Ed-
ward Coke lays it down, that the affirmative muft be proved
by two witneiTes at the leaft.
C 337 y ^' "^"^ "^"^ fpecjes of trial is of great antiquity, buS
' much difufed ; though ftill in force if the parties chufc to-
See Bookl. cb. IX. " i Roll. Abr. 583.
,, * z Inft. 63a. Show. Fail. C. S8. 9 Rep. 31.
% Roll. Abr. 583, (ge. ' L. 423.
S - abide
Ch. 22. Wrong s. 337
abide by it ; I mean the trial by nvager of battel. This feems
to have owed it's original to the military fpirit of our an-
ceftors, joined to a fuperftitious frame of mind : it being in
the nature of an appeal to providence, under an apprehenfion
and hope (however prefumptuous and unwarrantable) that
heaven would give the vilory to him who had the right.
The decifion of fuits, by this appeal to the God of battels, is
by fomc faid to have been invented by the Burgundi, one of
the northern or German clans that planted themfelves in
Gaul. And it is true, that the firft written injunction of
judiciary combats that we meet with, is in the laws of Gun-
debaid, A. D. 501, which are preferved in the Burgundian
code. Yet it does not feem to have been merely a local cuf-
tom of this or that particular tribe, but to have been the
common ufage of all thofe warlike people from the earlieft
times'*. And it may alfo feem from a paffage in Velleius
Paterculus 3, that the Germans, when firft they became known
10 the Romans, were wont to decide all contefts of right by
the fword : for when Quintilius Varus endeavoured to intro-
duce among them the Roman laws and method of trial, it
was looked upon (fays the hiftorian) as a " novitas hicogm-
** tae di/clp/inae, ut folita arm'is decerni jure termwarentur^
And among the antient Goths in Sweden we find the prac-
tice of judiciary duels eftablifhed upon much the fame foot-
ing as they formerly were in our own country ^
This trial was introduced into England among other Nor-
man cuftoms by William the Conqueror ; but was only ufed
in three cafes, one military, one criminal, and the third civil.
The firft in the court-martial, or court of chivalry and ho-
nour'': the fecond in appeals of felony ', of which we (hall
fpeak in the next book :. and the third upon iflue joined in a
writ of right, the laft and moft folemn decifion of real pro- [ 338 3
perty. For in writs of ri<Tht the jus proprietatisy which is
frequently a matter of difficulty, is in queftion j but other
" Seld. of duels, c. 5. ^ Co.Litt a6i.
Jz. f. 118. ' a Hawk. P. C. 45.
* Sciernb. Jt jure Suetn. I. i, c. 7.
Vol. III. B b real
33^ Private Book III.
real alIons being merely queflions of the jus pojfejfionis,
which are ufually more plain and obvious, our anceftors did
not in them appeal to the decifion of providence. Another
pretext for allowing it, upon thefe final writs of right, was
alfo for the fake of fuch claimants as might have the true
right, but yet by the death of witnefles, or other defedl of
evidence, be unable to prove it to a jury. But the moft curious
reafon of all is given in the mirror "", that it is allowable upon
warrant of the combat between David for the people of Ifrael
of the one party, and Goliah for the Philiftines of the other
party : a reafon, which pope Nicholas I. very ferioufly decides
to be inconclufive". Of battel therefore on a writ of right",
we are now to fpeak ; and although the writ of right itfelf,
and of courf? this trial thereof, be at prefent much difufed j
yet, as it is law at this day, it may be matter of curiofity, at
lead, to inquire into the forms of this proceeding, as we may
gather them from antient authors p.
The laft trial by battel that was waged in the court of
common pleas at Weftminfter (though there was afterwards "^
one in the court of chivalry in 1631, and another in the
county palatine of Durham ^ in 1638) was in the thirteenth
year of queen Elizabeth, A. D. 1 5 7 r , as reported by fir James
Dyerf : and was held in Tothill-fields, Wefl;minfter, ** non
^* /we magna juris conftiltorum perturhatione^* faith fir Henry
Spelman % who was himfelf a witnefs of the ceremony. The
form, as appears from the authors before cited, is as follows :
When the tenant in a writ of tight pleads the general
iflue, VIZ. that he hath more right to hold, than the demand-
^ ant hath to recover ; and offers to prove it by the body of his
* ^ "' champion, which tender is accepted by the demandant; the
tenant in the firft place muft produce his champion, who, by
c. 3. 23. Ilf- !* Finch. L. 4zi. Dyer, 301.
Decret.part. 2. cauj. a.y. 5. c. az. z Inft. 247.
Append. No. I. 5. '' Rufliw. coll. vol. 2. part. 2. foi.
P Glanvil. /. a. e. 3. Vet. nat. hrev. iia. 19 Rym. 322.
//. 1. Hov.Nar, tit. Droit patent. foL ' CrO. Car, 51a.
axx. (^<f;V. 1534.) Year book. 29 Edw. * Dyer. 301. * C/j^. 103.
throwing
Ch, 22. Wrongs. 3^9
throwing down his glove as a gage or pledge, thus ivages or
ftipulates battel with the champion of the demandant ; who^
by taking up the gage or glove, ftipulates on his part to ac-
cept the challenge. The reafon why it is waged by cham-
pions, and not by the parties themfelves, in civil actions, is
becaufe, if any party to the fuit dies, the fuit muft abate and
be at an end for the prefent j and therefore no judgment could
be given for the lands in queftion, if either of the parties were
flain in battel * : and alfo that no perfon might claim an ex-
emption from this trial, as was allowed in criminal cafes>
where the battel was waged in perfon.
A PIECE of ground is then in due time fet out, of fixty
feet fquare, encloffed with lifts, and on one fide a court eredi-
ed for the judges of the court of common pleas, who attend
there in their fcarlet robes ; and alfo a bar is prepared for the
learned ferjeants at law. When the court fits, which ought
to be by funrifing, proclamation is made for the parties, and
their champions , who are introduced by two knights, and
are drefled in a coat of armour, with red fandals, barelegged
from the knee downwards, bareheaded, and with bare arms
to the elbows. The weapons allowed them are only batons, or
ftaves of an ell long, and a four cornered leather target i fo
that death very feldom enfued this civil combat. In the court
military indeed they fought with fword and lance, according
to Spelman and Rufhworth ; as likewife in France only vil-
leins fought with the buckler and baton, gentlemen armed at
all points. And upon this and other circumftances, the pre-
fident Montefquieu " hath with great ingenuity not only de-
duced the impious cuftom of private duels upon imaginary
points of honour, but hath alfo traced the heroic madnefs of
knight-errantry, from the fame original of judicial combats.
But to proceed.
When the champions, thus armed with batons, arrive [ 340 J
within the lifts or place of combat, the champion of the te-
nant then. takes his adverfary by the hand, and makes oath
Co. Lin. 294. Dyverjiie des covrtSy 304. " Sp. L. b. i8. c. 20. *.
B b 2 that
34 Private Book III.
lliat the tenements in difpiite are hot tKi rigKt of the de-
tnandant ; and the champion of the demandant, then taking
the other by the hand, fvvears in the fame manner that they
are ; fo that each champion is, or ought to be, thoroughly
perfuaded of the truth of the caufe he fights for. Next an
oath againft forcery and enchantment i$ to be taken by both
the champions, in this or a fimilar form ', " hear this, ye
' juftices, that I have this day neither eat, drank, nor have
upon me, neither bone, (lone, ne grafs ; nor any enchant-
** ment, forcery, or witchcraft, whereby the law of God may
be abafed, or the law of the devil exalted. So help me
< God and his faints."
The battel is thus begun, and the combatants arc bound
to fight till the ftars appear in the evening : and, if the cham-
pion of the tenant can defend himfelf till the ftars appear, the
tenant (hall prevail in his caufe *, for it is fufficient for hira
to maintain his ground, and make it a drawn battel, he be-
ing already in poflefFion , but, if vilory declares itfelf for
cither party, for him is judgment finally given. This vic-
tory may arife, from the death of either of the champions :
which indeed hath rarely happened ; the whole ceremony, to
fay the truth, bearing a near refemblance to certain rural
athletic diverfions, which are probably derived from this ori-
ginal. Or vilory Is obtained, if either champion proves
recreant, that is, yields, and pronounces the horrible word of
cravens a word of difgrace and obloquy, rather than of any
determinate meaning. But a horrible word it indeed is to
the vanquiflied champion : fince as a punifhment to him for
forfeiting the land of his principal by pronouncing that fhame-
ful word, he is condemned, as a recreant, amittere liberam
legem, that is, to become infamous, and not be accounted
liber et legal'is homo ; being fuppofed by the event to be proved
forfworn, and therefore never to be put upon a jury or ad-
mitted as a witnefs in any caufe. :
B 34*i 3 This Is th^ form of a trial by battel ; a trial which the
tenant, or defendant in a writ of right, has it in his election
at
Ch. 22. WjlONGS. 341
at this day to demand ; and which was the only declfion of
fuch writ of right after the conqueft, till Henry the fecond
byconfent of parliament introduced ih^ grand ajfife"", a pe-
culiar fpecies of trial by jury, in concurrence therewith ;
giving the tenant his choice of either the one or the other,
"Which example, of difcountenancing thcfe judicial co^nbats,
was imitated about a century afterwards in France, by an
edll: of Louis the pious, A. D. 1260, and foon alter by the
reft of Europe, The eftablifliment of this alternative, Glan-
vil, chief juftice to Henry the fecond, and probably his ad-
vifer herein, confiders as a mod noble improvement, as in
faft it was, of the law *.
VI. A SIXTH fpecies of trial is by nvager of law, vadia-
iio legisy as the foregoing is called ivnger of battel^ vadiatio
duelli : becaufe, as in the former cafe the defendant gave a
pledge, gage, or vadium^ to try the caufe by battel j fo here
he was to put in fureties or yadiqsy that at fuch a day he will
make his law, that is, take the benefit which the law has
allowed him J'. For our anceftors confidered, that there were
many cafes where an innocent man, of good credit, might
be overborne by a multitude of falfe witnefles ; and therefore
eftablifhed this fpecies of trial, by the oath of the defendant
himfelf, for if he will abfolutely fwear himfelf not charge-
able, and appears to be a perfon of reputation, he fhall
go free and for ever acquitted of the debt, or other caufe of
action.
This method of trial is not only to be found in the codes [ 342 ]
of almoft all the northern nations, that broke in upon the
" Append. N'' I. 6. temptrtnn'.s infamlat opprohriumlUiuitn-
* Eft auttm magna affija regale quod- 'fejii tt inverecundiverhi, quodinore viiii
dam beneficium, dementia princifti, de turpiter fonat, covf-iUti-vum. Ex aequim
(tnflio procerum, populh indultum ; quo tale item maxima frodita eft legalii ijla in-
vitae hominum, et ftatus ititegritati tarn ftitutio. Jus enim, qued foft mu/tas t
faluLriter conjuittur, ut, rttinendo qucdquis longai dilationet vix evincitur per duellumy
pojjidet in libera tLnementtfoU, duelli cajum per beneficium iftius conftitutitmi commo-
declinare pojftnt hominet ambiguum. .At diut etatceleratius expedUur. (I. i, t, j.)
per hoc contingity infperatae tt pr (naturae 1 Co. LUt. >95>
mirtit ultimun ivadtrejupplidum^ veljal-
B b 3 Roman
341 Private Book III.
Roman empire, and eftablifhed petty kingdoms upon it's
ruins ^ ; but its original may alfo be traced as far back as
the Mofaical law. " If a man deliver unto his neighbour an
** afs, or an ox, or a (heep, or any beaft, to keep ; and it die,
** or be hurt, or driven away, no man feeing it ; then fliall
^* an oath of the Lord be between them both, that he hath
** not put his hand unto his neighbour's goods ; and the
' owner of it fhall accept thereof, and he {hall not make it
* good ^." We {hall likewife be able to difcern a manifeft
refemblance, between this fpecies of trial, and the canonical
purgation of the popi{h clergy, when accufed of any capital
crime. The defendant or perfon accufed was in both cafes
to make oath of his own innocence, and to produce a certain
number of compurgators, who fwore they believed his oath.
Somewhat (imilaralfo to this is &it facrameritum declfionis^ or
the voluntary and deci{ive oath of the civil law '' ; wliere one
of the parties to the fuit, not being able to prove his c' arge,
olFers to refer the decHion of the caufe to the oath of hs ad-
verfary : which the adverfary was bound to accept, o\ tender
the fame propofal back again : otherwife the whole was taken
as confefied by him. But, though a cuftom fomewhat fimi-
lar to this prevailed formerly in the city of London % yet in
gencr. 1 the Engri{h law does not thus, like the civil, reduce
ithe defendant, in cafe he is in the wrong, to the djlemma of
cither confelliou or perjury: but is indeed^fo tender of per-
mitting the oath to be taken, even upon the defendant's who
requell, that it allows it only in a very few cafes ; and in
thofe it hath alfo devifed other collateral remedies for the
party injured, ip whiph the defendant i excluded from hi$
wager of law,
r -5,1, -1 The manner of waging and making law is this. He
that has waged, or given fecurity, to make his law, brings
with him into court eleven of his neighbours : a cuftom,
which we {ind particularly defcribedfo early as in the league
Sp. L. b. 28. c. 13. Sticrnhook, Exod, xxii- 10,
it jure Suecii^m, I. I, r, j.. Ftud, I, z, ** Cod. 4. 1. 12.
4.4. 10.28. ^ Bio. Air^ t. Jcy gagtr. 77.
' . jjetween
Ch. 22. Wrongs, 343
between Alfred and Guthrun the Dane''; for ty the old
Saxon conftitution every man's credit in courts of law de-
pended upon the opinion which his neighbours had of hif
veracity. The defendant then (landing at the end of the
bar, is admonilhed by the juslges of the nature and danger of
a falfe oith . And if he ftill perfifls, he is to repeat this or
the like oath : *' hear this, ye juftices, that I do not owe
** unto Richard Jones the fum of ten pounds nor any penny
** thereof, in manner and form as the faid Richard hath dc-
* clared againft me. bo help me God'* And thereupon his
eleven neighbours or compurgators Ihall avow upon t^eir
oaths, that they believe in their confcienccs that he faith the
truth ; fo that himfelf niuft be fworn defidelitaie^ and the ele-
ven de credulitate *. It is held indeed by later authorities ^,
that fewer than eleven compurgators will do ; but fir Edward
Coke is pofitive that there mud be this number ; and his opi-
nion not only feems founded upon better authority, but alfo
upon better reafon : for, as wager of law is equivalent to a
verdil in the defendant's favour, it ought to be cltablilhed
by the fame or equal teftimony, namely, by the oath oi tive/ve
men. And fo indeed Gianvil exprefles it ""j ^^jurabit duode-
** cinia manu ;" and in 9 Henry III. when a defendant in an
aftion of debt waged his law, it was adjudged by the court
** quod defendat fe duodtclma manu *." Thus too, in an author
of the age of Edward the firil '', we read, " adjudicabitur reus
" ad legem fttatn duodecima Tianu^ And the antient treatife,
entitled, Dyverftte da courtSy exprefsly confirms fi- Edward
Coke's opinion ',
It mud be however obferved, that fo long as the cuftom r ^,. -,
continued of producing thtfeHay the fuity or witnefTes to give
probability to tiie plaintilT's demand, (of which we fpoke in
a former chapter,) the defendant was not put to wage his lavr
* cap. 3. Wiik. LL, jingl. Sax. * Htnglam magna, c. 5.
S*lk. 6Jil. ' Jl coviKt atcr' i-ji luy xi maynxi dt
' Co. Litt. 295. jurer sue luy, fc. que it tnttndri tn luf
2 Ventr. 171. conjcitns fyt i/ Ji/tj/i vt'ur, (/hi. 306,
* /. I. *. 9. tdit. i534-i
F;uh. M. /. lij. ^%.
9 b 4 unleifi
344- Private Book III*
uiilefs the feBa was firft produced, and their teftimony was
found confident. To this purpofe fpeaks magna carta, c. 28,
" Nullus balliviis de caetero ponat aliquem ad legem matiifejlaniy*
(that iSjWager of battel,) ^''necadJKramentuTn^^ (that is, wager
of law,) ^^ Jtmpl'td Icqtiela fua,* (that is, merely by his count
or declaration,) ^'Jine tejlibus Jidelibus adhoc induBis." "Which
Fleta thus explains "^ : " ft pete?is feciam produxerit., et Concordes
** inveniantur, tunc reus pot er it vadiai-e legem fuam contra peten-
*' tern et contra feBam fuam prolatam ; fed Jt feBa variabilis in-
*' veniatur, extunc non tenebitur legem vadiare contra feBam
*' illam.^' It is true indeed, that Fleta exprefsly limits the
number of compurgators to be only double to that of the feBa
produced ; " utfi duos vel tres tejies produxerit ad probandum,
*' oportet quod defeufio fiat per quatuor "vel per fex ; ita quod
** pro quolibet tejle duos producat juratores^ ufque ad duodecim :'*
fo that according to this dodtrine the eleven compurgators
were only to ht produced, but not all of them fworn, unlefs
ihtfeBa confided oifix. But, though this might poflibly be
the rule till the production of thefeBa was generally difufed,
fince that time the duodecimo manus feems tojaave been gene-
Tally required ".
In the old Swcdjfli or Gothic conftitution, wager of law
was not only permitted, as it dill is in criminal cafes, unlefs
the fadl be extremely clear againd the prifoner : but waa
alfo abfolutely required, in many civil cafes : which an au-
thor of their ownP very judly charges as being the fource of
frequent perjury. This, he tells us, was owing to the popidi
ecclefiadics, who introduced this method of purgation from
their cauon law ; and having fown a plentiful crop of oaths
f "^i? ] ^^ ^^^ judicial proceedings, reaped afterwards an ample har-
ved of perjuries : for perjuries were puniflied in part by pe-
(funiary fines, payable to the coffers of the church. But
with us in England wager of law is never required ; and is
then only admitted, where an alionas brought upon fuch
matters as may be fuppofed to be privately tranfafled between
m / 2, c. 63., " Mod. Un. Hift. xxxiii. 22.
B^o. Jlhr* t. Itygtger. g, Syernhook de jure Sunmtm. 1. 1. c. 5.
the
Ch. 22. Wrongs. * 345
the parties, and wherein the defendant may be prefnmed to
have made fatisfaclion without being able to prove it. There-
fore it is only in a<Slions of debt, upon fimple contract, or
for amercement, in adlions of detinue, and of account, where
the debt may have been paid, the goods reftored, or the ac-
count balanced, without any evidence of either ; it is only
in thefe alions, I fay, that the defendant is admitted to wa^e
his lawi : fo that wager of law lieth not, when there is any
fpecialty (as a bond or deed) to charge the defendant, for
that would be cancelled if fatisfied ; but when the debt grow-
cth by word only : nor doth it lie in an adion of debt, for
arrears of an account, fettled by auditors in a former aHon .
And by fuch wager of law (when admitted) the plaintiff is
perpetunlly b.irred ; for the law, in the fimplicity\)f the an-
tient times, prefumed that no one would forfwear himfelf
for any worldly thing . Wager of law however lieth in a
real alion, where the tenant alleges he'was not legally fum-
jnoned to appear, as well as in mere perfonal contral:s'.
A MAN outlawed, attainted for falfe verdict, or for con-
fpiracy or perjury, or otherwife become infamous, as by pro-
nouncing the horrible word in a trial by battel, fhall not be
permitted to wage his law. Neither fhall an infant under the
age of twenty-one, for he cannot be admitted to his oath ;
and therefore, on the other hand, the courfe of juftice fliall
flow equally, and the defendant, where an infant is plaintiff,
fhall not wage his law. But a feme-covert, when joined with
her hufband, may be admitted to wage her law j and an alien '
(hall do it in his own language ".
It is moreover a rule, that where a man is compellable by [ 34^ 3
law to do any thing, whereby he becomes creditor to another,
the defendant in that cafe fliall not be admitted to wage his ^
law : for then it would be in the power of any bad man to
run in debt firft, again fl the inclinations of his creditor, and
afterwards to fwear it away. But where the plaintiff hath
^ Co. Litt. 295. * Finch. L. 433.
" 10 Rep. 103. Co. Litt. 39S
* Co. LUt. 295.
given
34^ Private Book III.
given voluntary credit to the defendant, there he may wage
his law ; for, by giving him fuch credit, the plaintiff has him-
felf borne teftimony that he is one whofe charafter may be
trufted. Upon this principle it is, that in an ation of debt
againft a prifoner by a gaoler for his viluals, the defendant
fliall not wage his law : for the gaoler cannot refufe the pri-
foner, and ought not to fuffer him to perifh for want of fuile-
nance. But otherwife it is for the board or diet of a man at
liberty. In an adtion of debt brought by an attorney for his
fees, the defendant cannot wage his law, becaufe the plain-
tiff is compellable to be his attorney. And fo, if a fervant
be retained according to the flatutc of labourers, 5 Eliz. c. 4.
which obliges all fingle perfons of a certain age, and not
having other vifible means of livelihood, to go out to fervice ;
in an adlion of debt for the wages of fuch a fervant, the mat-
ter fhall not wage his law, becaufe the plaintiff was compel-
lable to ferve. But if had been otherwife, had the hiring
been by fpecial contrail, and not according to the ftatute ".
In no cafe whpre a contempt, trefpafs, deceit, or any in-
jury w/'/j^yorr^ is alleged againll the defendant, is he permit-
ted to wage his law " : for it is impoflible to prefume he has
fatisfied the plaintiff his demand in fuch cafes, where damages
are uncertain and left to be affeffed by a jury. Nor will the
law truft the defendant with an oath to difcharge himfelf,
where the private injury is coupled as it were with a pub-
lic crime, that of force and violence ; which would be equi-
valent to the purgation oath of the civil law, which ours has
fo juftly rejected.
3^7 1 Executors and adminiftrators, when charged for the debt
of the deceafed, (hall not be admitted to wage their law ^z for
no man can with a fafe confcience wage law of another mati's
contract ; that is, fwear that he never entered into it, or at
leaft that he privately difcharged it. The king alfo has his
prerogative ; for, as all wager of law imports a refledlion on
the plaintiff for dilhonefty, therefore there fhall be no fuch
* Co. Litt. 295. * Uid. Raym. 286. y Finch, L. 4X4'
wager
Ch. 22. Wrongs, 347
wager on aHons brought by him*. And this prerogative
extends and is communicated to his debtor and accomptant ;
for, on a writ of quo nanus in the exchequer for a debt on (im-
ple contraft, the defendant is not allowed to wage his law '.
Thus the wager of law was never permitted, but where
the defendant bore a fair and unreproachable character ; and
it aH'o was confined to fuch cafes where a debt might be fup-
pofed to be difcharged, or fatistattion made in private, with-
out any witnefT^^s to atteft it; and many other prudential re-
llri^irions accompanied this indulgence. But at length it was
confidered, that ^even under all it's reftriiSlions) it threw too
great a temptation in the way of indigent or profligate men;
and therefore by degrees new remedies were devifed, and nevir
forms of action were introduced, wherein no defendant is at
liberty to wage his law. So that now no plaintiff need at all
apprehend any danger from the hardinefs of his debtor's con-
fcience, unlefs he voluntarily chufes to rely on his adverfary's
veracity, by bringing an obfolete, inftead of a modern, ac-
tion. Ihtrefore one (hall hardly hear at prefentof an a6bion
of debt brought upon a fimple contrail : that being fupplied
by an aftion of irefpafs on the cafe for the breach of a promifc
or ajfumpftt ; wherein, though the fpecific debt cannot be re-
covered, yet damages may, equivalent to the fpecific debt.
And, this being an alion of trefpafs, no law can be waged
therein. So, inftead of an alion of det'mue to recover the
very thing detained, an aclion of trefpafs on the cafe in trover
and converjion is ufually brought ; wherein, though the horfc
or other fpecific chattel cannot be had, yet the defendant fljall [ 348 1
pay damages for the converfion, equal to the value of the
chattel i and for this trefpafs alfo no wager of law is allowed.
In the room of alions of account^ a bill in equity is ufually
filed : wherein, though the defendant anfwers upon his oath,
yet fuch oath is not conclufive to the plaintiff; but he may
prove every article by other evidence, in contradiflion to what
the defendant has fworn. So that wager of law is quite out
* Finch. L.42S. * Co. Litt. 295,
of
348 Private Book IIL
of ufe, being avoided by the mode of bringing the a\ion ;
but ftill it is not out of force. And therefore, when a new
ftatute inflidls a penalty, and gives an alion of debt for re-
covering it, it is ufual to add, in which no wager of law fliall
be allowed : otherwife an hardy delinquent might efcape any
penalty of the law, by fwearing he had never incurred, or
elfe had difcharged it.
These fix fpecies of trials, that we have confidered in the
prefent chapter, are only had in certain fpecial and eccentrical
cafes; where the trial by the country, per pais, or by jury,
would not be fo proper or effedlual. In the next chapter we
fhall confider at large the nature of that principal criterion oi
truth in the law of England.
Ch. 23. W R o N o s. 540
CHAPTER THE TWENTY-THIRD.
OF THE TRIAL BY JURY.
TH E fubje^l of our next inquiries will be the nature
and method of the trial by jury ; called alfo the trial
per pais, or by the country : a trial that hath been ufed time
out of mind in this nation, and feems to have been coeval
with the firft civil government thereof. Some authors have
endeavoured to trace the original of juries up as high as the
Britons themfelves, the firft inhabitants of our ifland ; but
certain it is, that they were in ufe among the earlieft Saxon
colonies, their inftitution being afcribed by bifhop Nicholfon *
to Woden himfelf, their great Icgiflator and captain. Hence
it is, that we may find traces of juries in the laws of all thofe
nations which adopted the feodal fyftem, as in Germany,
France, and Italy ; who had all of them a tribunal compofed
of twelve good men and true, " boni homines^ ufually the
vafals or tenants of the lord, being the equals or peers of the
parties litigant ; and, as the lord's vafals judged each other
in the lord's courts, fo the king's vafals, or the lords them-
felves, judged each other in the king's court *", In England
we find actual mention of them fo early as the laws of king
Ethelred, and that not as a new invention ^. Stiernhook *
afcribes the invention of the jury, which in the Teutonic
language is denominated tutnbdoy to Regner, king of Sweden
and Denmark, who was co-temporary with our king Egbert.
Juft as we are apt to impute the invention of this, and fome
* dt jurt Saxonumt p.iz. * Wilk. LL. Angl. Sax. tij,
*' Sp. L. b, 30. c. 18. Ctfital. Lud% ^ di juriSuennim. I. l,c,^
fH. A. D. 819. c. a.
Other
3S^ Private Book III.
other pieces of juridical polity, f o the fuperior genius of Al-
fred the great ; to whom, on account of his having done
much, it is ufual to attribute every thing : and as the tradi-
tion of antient Greece placed to the account of their own
Hercules whatever atchievcment was performed fuperior to
the ordinary prowefs of mankind. Whereas the truth feems
to be, that this tribunal \*as univerfally eftabliflied among all
the northern nations, and fo intetwoven iri their Very con-
ftitution, that the earlieft accounts of the one give us alfo
fome traces of the other. Its eftablifl"iment however and ufe,
in this ifland, of what date foever it be, though for a time
greatly impaired and (haken by the introduftion of the Nor-
man trial by battel, was always fo highly efteemed and valued
by the people, that no conqueft, no change of government,
could ever prevail to abolifh it* In magna carta it is more
than once infiftcd on as the principal bulicwark of our liber-
ties ; but efpecially by chap. ig. that no freeman fhall be
hurt in either his perfon or property ; " tiijlper legale judicium
^^ pariumfuorum vel per legem terrae." A privilege which is
couched in almoft the fame words with that of the emperor
Conrad, two hundred years before * : ** nemo benejlcium fuum
* perdaty nifi fecundum confuetudinem antecejjorum nojlrorum et
** P^^ judicium parium fuoriim.''^ And it was ever efleemed,
in all countries, a privilege of the highefb and mofl beneficial
nature.
But I will not mlfpend the reader's time in fruitlefs en-
comiums on this method of trial : but {hall proceed to the
diffeftion and examination of it in all it's parts, from whence
indeed it's higheft encomium will arife : fmce, the more it is
fearched into and underftood, the more it is fure to be valued.
And this is a fpecies of knowlege mod abfolutely neceflary
for every gentleman in the kingdom : as well becaufe he may
be frequently called upon to determine in this capacity the
rights of others, his fellow- fubjefts , as becaufe his own pro-
perty, his liberty, and his life, depend upon maintaining, in
it's legal force, the conftitutional trial by jury.
LL. Longob. l.^. t. 8. /. 4.
Trial*
Ch, 23. Wrongs. j5J
Trials by jury in civil caufes are of two kinds ; extra*
crdinar^y and ordinary. The extraordinary I fliall only briefly
hint at, and confine the main of my obfervatioiis to that
which is more ufual and ordinary.
The firll fpecies of extraordinary trial by jury is that of
the grand ajfife^ which was inftituted by king Henry the fe-
cond in parliament, as was mentioned in the preceding chap-
ter, by way of alternative offered to the choice of the tenant
or defendant in a writ of tight, inftead of the barbarous and
unchriftian cuftom of duelling. For tliis purpofe a writ de
magna ajjlfa eligenda is direled to the flierifF^, to return four
knights, who are to eleft and chufe twelve others to be joined
with them, in the manner mentioned by Glanvil e j who,
having probably advifed the meafure itfelf, is more than
ufually copious in defcribing it ; and thefe, all together, form
the grand aflife, or great jury, which is to try the matter of
right, and muft now confift of fixtcen jurors * (i).
Another fpecies of extraordinary juries, is the jury to try
an attaint ; which is a procefs commenced againft a former
jury, for bringing In a falfe verdift ; of which we (hall fpeak
more largely In a fubfequent chapter. Atprefent I fhallonly
obferve, that this jury is to confifl of twenty-four of the beft
men in the county, who are csUed the grand jury in the at*
taint, to diftinguifh them from the firft or petit jury ; and thefe
are to hear and try the goodnefs of the former verdit.
With regard to the ordinary trial by jury in civil cafes,
i Ihall purfue the fame method in confidering it, that I fet
f F. N. B. 4. * Finch. L. 414. i Leon. 303.
/. a. c. II 2r.
( I ) It feems not to be afcertaiiied that any fpecillc number
above twelve is abfolutely necefTar}' to conftitute the grand aflizc ;
but it is the ufual cx>urfe to fwear upon it the four knights and
twelve others. Joiner, Trials X c.
See the proceedings upon a vrrit of right before the fixtcen re-
cognitors of the grand aflizc, in 2 IVilfn^^i.
out
3^1 Private Book III,
out with ill explaining the nature of profccutinig alions in
general, viz, by following the order and courfe of the pro-
ceedings themfelves, as the moft clear and perfpicuous way
of treating it.
r 352 1 Wken therefore an iflue is joined, by thefe words, ** and
** this the faid A prays may be inquired of by the country,"
or, " and of this he puts himfelf upon the country, and the
" faid B does the like," the court awards a writ of venire fa-
cias upon the roll or record, commanding the (herifF " that
** he caufe to come here on fuch a day, twelve free and law-
** ful men, liheros et legates homines^ of the body of his coun-
" ty, by whom the truth of the matter may be better known,
** and who are neither of kin to the aforefaid A, nor the
** aforefaid B, to recognize the truth of the iffiie between the
<* faid parties '." And fuch writ is accordingly iffued to the
fiieriff.
Thus the caufe {lands ready for a trial at the bar of the court
itfelf : for all trials were there antiently had, in anions which
were there firft: commenced ; which then never happened but
In manners of weight and confequence, all trifling fuits being
ended in the court-baron, hundred, or county courts : and in-
deed all caufes of great imporrance or difficulty are dill ufuatly
retained upon motion, to be tried at the bar in the fuperior
courts. But when the ufage began to bring adlions of any
trifling value in the courts of Weftminfter-hall, it was found
to be an intolerable burthen to compel the parties, witnefTes,
and jurors, to come from Weftmoreland perhaps or Cornwall,
to try an alion of afl'ault at Weftminfter. A praftice there-
fore very early obtained, of coniitiuing the caufe from term to
term, in the court above, provided the juftices in eyre did
not previoufly come into the county where the caufe of adiion
arofe'^ : and if it happened that they arrived there within
that interval, then the caufe was removed from the jurifdic-
* Append. N" II. 4. " nij! juJUciarii itinerantcs prius nienerint
^Semper dabi'.ur dies partihut a juf' " ad partes illas.^' Bial. / 3. tr, j.
tiiiariii de banco j Jub tali (onditione, c.ii.^i.)
15 tion
Ch. 23. Wrongs. ^S^
tion of the juftlces at Weftminfter to that of the juftices in
eyre. Afterwards when the judices in eyre were fuperfeded
by the modern juftices of aflife, (who came twice or thrice in
the year into the fcveral counties, ad capiendas njjifas, to take
or try writs of aflife, oimort d'atice/lor, novel dijeifttij nufancCf
and the like,) a power was fuperadded by ftatute Weftm. 2. f -it'i l
ijEdw. I. c. 30. to thefe juftices of affife to try common
iflues in trefpafs, and other lefs important fuits, with direc-
tions to return them (when tried) into the court above,
where alone tlie judgment fliould be given. And as only
the trial, and not the determination of the caufe, was now
intended to be had in the court below, therefore the claufc
of n'lfi prius was left out of the conditional continuances be-
fore mentioned, and was directed by the ftatute to be inferted
in the writs of ventre facias ; that is, ** that the fheriit fliould
*' caufe the jurors to come to Weftminfter (or wherever the
*' king's court (hould be held) on fuch a day in eafter and
** michaelmas terras ; nift prius, unlefs before that day the
** juftices afligned to take aflifes (hall come into his faid
** county." By virtue of which the Iheriff returned his
jurors to the court of the juftices of aflife, which was fure to
be held in the vacation before eafter and michaelmas terms;
and there the trial was had.
An inconvenience attended this provifion : principally be-
caufe, as the (herifF made no return of the jury to the court
at Weftminfter, the parties were ignorant who they were till
they came upon the trial, and therefore were not ready with
their challenges or exceptions. For this reafon, by the ftatute
42 Ed w. III. c. II. the method of trials by nift prius was
altered : and it was enabled that no inqueft (except of rJTife
and gaol- delivery) fhould be taken by writ of nift prius, till
after the ftierifl?" h;'.d returned the names of the jurors to the
court above. So that now in alm'oft every civil caufe the
claufe of nift prius is left out of the writ oi venire facias, which
is the flicrifl^s warrant to warn the jury, and is inferted In
another part of the proceedings, as we ft:all fee prefeiitly.
Vol. III. C c For
3^3 Private Book III,
For now the courfe is, to make the flierifPs vemre return-
able on the laft return of the fame term wherein ifTuc is joined,
viz. hiiary or trinity terms ; which, from the making up of
the ifTues therein, are ufually called ijfuable terms. And he
returns the names of the jurors in a panel (a little pane, or
oblong piece of parchment) annexed to the writ. This jury
L 354 ] ^^ "*^ fummoned, and therefore, not appearing at the day,
muft unavoidably make default. For which reafon a compul-
five procefs is now awarded againft the jurors, called in the
common pleas a M'rit of habeas corpora juratcrum, and in the
king's bench a <///?r;//_g-flr, commanding the ftierifF to have
their bodies, or to diftrein 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 refpited, through
** defel of the jurors, till the firftday of the next term, then
*' to appear atWeftminfter; unlefs before that time, viz. on
** wednefday the fourth of March, the juftices of our lord
** the Tting, appointed to take affifes in that county, (hall have
*' come to Oxford, that is, to the place affigned for holding
" the afTifes." And thereupon the writ commands the ftierifF
to have their bodies at Weftminfter on the faid firfl: day of
next term, or before the faid juftices of aflife, if before that
time they come to Oxford ; viz. on the fourth of March
aforefaid. And, as the judges are fure to come and open
the circuit commiflionson the day mentioned in the writ, the
fherifF returns and fummons this jury to appear at the affifes,
and there the trial is had before the juftices of ajjfife and niji
prius : among whom (as hath been faid *") are ufually two of
the judges of the courts at Weftminfter, the whole kingdom
being divided into fix circuits for this purpofe. And thus we
mayobferve that the trial of common iflues, zt nifi pri us y-wh'ich.
was in it's orlginalonly a collateral incident to the original bufi-
nefs of the juftices of affife, is now, by the various revolutions
of pralice, become their principal civil employment : hardly
any thing remaining in ufe of the real aJJifeSi but the name.
' Append. N' II. ^4. See pag. 59;
If
Ch. 23. Wrongs. 354
If the fheriff be not an indifferent perfon 5 as if he be a
party in the fuit, or be related by either blood or affinity to
cither of the parties, he is not then trufted to return the jury;
but the venire fhall be direled to the coroners, who in this,
as in many other inftances, are the fubllitutes of the fherifF,
to execute procefs when he is deemed an improper perfon. If
any exception lies to the coroners, the venire (hall be diredled
to two clerks of the court or two perfons of the county
named by the court, and fworn ". And thefe two, who are [ 355 3
called elifors, or ele6lors, ftiall indifferently name the jury,
and their return is final j no challenge being allowed to their
array.
Let us now paufe a while, and obferve (with fir Matthew
Hale ) in thefe firft preparatory ftages of the trial, how admi-
rably this conftitution is adapted and framed for the invefli-
gation of truth, beyond any other method of trial in the world.
For, firft, the perfon returning the jurors is a man of fome
fortune and confequence ; that fo he may be not only the lefs
tempted to commit wilful errors, but likewife be refponfible
for the faults of either himfelf or his officers : and he is alfo
bound by the obligation of an oath faithfully to execute his
duty. Next, as to the time of their return : the pannel is re-
turned to the court upon the original venire^ and the jurors
are to be fummoned and brought in many weeks afterwards
to the trial, whereby the parties may have notice of the jurors,
and of their fufficiency or infulficiency, charalers, connec-
tions, and relations, that fo they may be challenged upon juft
caufe ; while at the fame time by means of the compulfory
procefs (of dijiringas^ or habeas corpora) the caufc is not like
to be retarded through defect of jurors. Thirdly, as to the
place of their appearance ; which in caufes of weight and
confequence is at the bar of the court ; but in ordinary cafes
at the affifes, held in the county where the caufe of alion
arifes, and the witneffes and jurors live : a provifion molt
excellently calculated for the faving of expence to the parties.
Fortefc. dt Laud. LL, c. 25. Co. Litt. 158. Hlft, C. L. c. 12.
C c 2 For
SSS Private ' Book IH.
For though the preparation of the caufes in ppoint of plead-
ing is tranfafted at Weftminfler, whereby the order and
uniformity of proceeding is prcferved throughout the king-
dom, and multiplicity of forms is prevented ; yet this is no
great charge or trouble, one attorney being able to tranfaft
the bufinefs of forty clients. But the troublcfome and moft
cxpcnfive attendance is that of jurors and witneffes at the
trial ; which therefore is brought home to them, in the coun-
try where moft of them inhabit. Fourthly, the perfons before
{ 356 "] ivhom they are to appear, and before whom the trial is to
be held, are the judges of the fuperior court, if it be a trial
at bar; or the judges of afiife, delegated from the courts at
Weftminfter by the king, if the trial be held in the country :
perfons, whofe learning and dignity fecure their jurifdidlion
from contempt, and the novelfy and very parade of whofc
appearance have no fmall influence upon the multitude. The
very point of their being ftrangers in the county is of infinite
fervice, in preventing thofe factions and parties, which would
intrude in every caufe of moment, were it tried only before
perfons refident on the fpot, as juftices of the peace, and the
like. And, the better to remove all fufpicion of partiality,
it was wifely provided by the ftatutes 4 Edw. III. c. 2.
8 Ric. II. c. 2. and 33 Hen. VIII. c. 24. that no judge 01
afiife (hould hold pleas in any county wherein he was born
or inhabits (2). And, as this conftitution prevents party and
falion from intermingling in the trial of right, fo it keeps
both the rule and the adminiftration of the laws uniform.
Thefe juftices, though thus varied and fhifted at every aflifcs,
are all fworn to the fame laws, have had the fame education,
have purfued the fame ftudies, converfe and confult together,
communicate their decifions and refolutions, and prefide in
thofe courts which are mutually conneled and their judg-
ments blended together, as they are interchangeably courts
of appeal or advice to each other. And hence their admini-
ftration of juftice, and condu6l of trials, are confonant and
(2) See paga 6, note S, ante.
uniform ;
Ch. 2j. Wrongs. 55^
uniform; whercUy that confufion and contrariety are avoided,
which would naturally arife from a variety of uncommuni-
cating judges, or from any provincial eflabliftimcnt. But
let us uov/ return to the aflifcs.
When the general day of trials is fixed, the plaintiff or
his attorney mull bring down the record to the aflifes, and
enter it with the proper olTicer, in order to it's being caUcd
on in courfe. If it be not fo entered, it cannot be tried 5
therefore it is in the plaintifFs breaft to delay any trial by not
carrying down the record : unlefs the defendant, being fear-
ful of fuch negle<5t in the plaintiff, and willing to difcharge
himfelf from the action, will himfelf undertake to bring on
the trial, giving proper notice to the plaintiff. Which pro- r ^^7 1
ceeding is called the trial by provifo, by reafon of the claufe
then inferted in the Sheriff's venire f viz. ^* provifo ^ provided
* that if two writs come to your hands, (that is, one from
** the plaintiff and another from the defendant^ you Ihall
*' execute only one of them." But this practice hath begun to
be difufed, fincc the ftatute 14 Geo. II. c 17. which enacts,
that if, after ifluc joined, the caufe is not carried down to be
tried according to the courfe of the court, the plaintiff fhall
be eftcemed to be nonfuited, and judgment fhall be given for
the defendant as in cafe of a nonfuit. In cafe the plaintiff
intends to try the caufe, he is bound to give the defendant
(if he lives within forty miles of London) eight days notice
of trial ; and, if he lives at a greater diftance, then fourteen
days notice, in order to prevent furprize : and if the plaintiff
then changes his mind, and does not countermand the notice
fix days before the trial, he fhall be liable to pay cofts to the
defendant for not proceeding to trial, by the fame lafl men-
tioned ftatute (3). The defendant, however, or plaintiff, may,
(3) The ftatute only requires ten days notice; hut at the fit-
tings in London and Weft.minfter, the former practice of fourteen
days notice was ftill continued. But in all country caufcs ten days
notice is fufficicnt ; as where the conimlffion day is upon the fif-
teenth of any month, notice of trial ini^lt be given on or before
the fifth. Impefs Prac. 305. If the defendant rcfides withia
fiarty miles of London, and if the caufe is to be tried at the fittings
Cc3 in
n^^y Private Book III.
upon good caufe (hewn to the court above, as upon abfcrice
or ficknefs of a material witnefs, obtain leave upon motion
to defer the trial of the caufe till the next afnfes(4).
But we will now fuppofe all previous fteps to be regu-
larly fettled, and the caufe to he called on in court. The
record is then handed to the judge, to perufe and obferve the
pleadings, and what iflues the parties are to maintain and
prove, while the jury is called and fworn. T-o this end the
fherifF returns his compulfive procefs, the writ of habeas cor^
poroy or dijlringasj with the panel or jurors annexed, to the
judge's officer in court. The jurors contained in the panel
are ^lihtv fpecial ox common jurors. Special ]\xxics were origi-
nally Introduced in trials at bar, when the caufes were of too
great nicety for the difcuffion of ordinary freeholders ; or
where the fiierifFwas fufpel:ed of partiality, though not upon
fuch apparent caufe as lo warrant an exception to him. He
is in fuch cafes, upon motion in court and a rule granted
thereupon, to attend the prothonotary or other proper officer
[ 358 ] with his freeholder's book ; and the officer is to take indiffer-
ently forty-tight of the principal freeholders in the prefence
of the attornies on both fides who are each of them to ftrlke
off twelve, and the remaining twenty-four are returned upon
the panel. By the flatute 3 Geo II. c. 25. either party is
entitled upon motion to have a fpecial jury ftruck upon the
in London or Weftminfter, then two days notice of countermand,
before it is to be tried, is fufficient. i Cromp. Prac. 220
(4) Where there have been no proceedings within four terms,
a full term's notice of trial mull be given previous to the affift- s or
fittings ( I Cromp. Prac. 2I7')> unlefs the caufe has been delayed by
the defendant himfelf by an injunftion or other means. 2 Bl. Rep.
784. 3 T. R. 530. If the defendant proceeds to trial hy pronjifoy
he mull give the fame notice as would have been required from
the plaintiff, i Cromp. Prac. 219. Sometimes the courts im-
pofe it as a condition upon the defendant, that he fhall acccptjhort
notice of trial, which in countiy caufes fhall be given at the leall four
days before the commiffion day, one day being exclufive, and the
other inclufive. ^T. R. 660. But in town caufes, two days
notice fceras to be fufficient in fuch a cafe, Tiddy 250.
trial
Ch. 23. Wrongs. 358
trial of any Iflue (5), as well at the affifes as at bar ; he paying
the extTnordinary expcnfe unlefs the judge will certify (in
purfuance of the ftatute 24 Geo. II. c. 18.) that the caufe
required fuch fpecial jury.
A COMMON jury is one returned by the (lierifF according
to the directions of the ftatute 3 Geo. II. c. 25. which ap-
points, that the flierifF or officer fliail not return a feparate
panel for every feparate caufe, as formerly j but one and the
fame panel for every caufe to be tried at the fame affifes, con-
taining not lefs than forty-eight, nor more than feventy two,
jurors: and that their names being written on tickets, ffiall
be put into a box or glafs ; and when each caufe is called,
twelve of thefe perfons, Vvhofe names ffiall be firft: drawn out
of the box, ffiall be fworn upon the jury, unlefs abfent, chal-
lenged, or excufed ; or unlefs a previous view of the mef-
fuages, lands, or place in queftion, ffiall have been thought
neceffiiry by the court p : in which cafe fix or more of the
jurors, returned, to be agreed en by the parties, or named by
a judge or other proper officer of the court, ffiall be appointed
by fpecial writ of habeas corpora ox dijlringasy to have the mat-
ters in queftiion ffiewn tb them by two perfons named in the
writ; and then fuch of the jury as have had the view, or fo
many gf them as appear, (hall be fworn on the inqueft previous
to any other jurors. Thefe acSls are well calculated to re-
ftrain any fufpicion of partiality in the (heriffj or any tam-
pering with the jurors when returned.
As the jurors appear, when called, they ftiall be fworn,
unlefs challenged by either party. Challenges are of two forts;
challenges to the array, and challenges to the polls.
P Sut. 4 Ann. c. i6.
(5) As well in indi-ftments and informations for mifdemefnois,
as in civil aftions. But there cannot be a fpecial jury in cales of
treafon or felony, for the party muft have the advantage of mak-
ing twenty peremptory challenges In a profeciition for felony, and
thirty-five in the cafe of high treafon. 21 Finer, 301.
How treafon and felony may be tried in the court of nlfi prius,
fee 4th vol. 309. r. 3. How a tale may be prayed, fee p. 364.
n. 8. pott.
C c 4 Challenges
J59 Private Book III.
Challenges to the array are at once an exception
to the whole panel, in which the jury are arrayed or fet in
order by the iherifF in his return j and they may be made
u|)on account of partiality or fome default in the fheriff,
cr his under-officer who arrayed the panel. And, generally
fpeaking, the fame reafons that before the awarding the ve^
nire were fuilicient to have diredled it to the coroners or
clifors, will be alfo fufficient to quaih the array, when made
by a perfon or officer of whofe partiality there is any tolerably
ground of fufpicion. Alfo, though there be no perfonal ob,-
jeflion againit the IherifF, yet if he arrays the panel at thp
nomination, or under the diredlion of either party, this is
good caufe of challenge to the array. Formerly, if a lord
of parliament had a caufe to be tried, and no knight was
returned upon the jury, it was a caufe of challenge to
the array ^ : but an unexpected ufe having been made of this
dormant privilege by a fpiritual lord , it was abolifhed by
ftatute 24 Geo. II. c. 18. But ftill, in an attaint, a knight
- muft be returned on the jury r. Alfo, by the policy of the
antlent law, the jury was to come devicinetOi from the neigh-
bourhood of the vill or place where the caufe of a^ion was
laid in the declaration : and therefore fome of the jury were
obliged to be returned from the hundred in which fuch vill
lay; and, if none v/ere returned, the array might be chal-
lenged for defe<Sl of hundredors. Thus the Gothic jury, or
nembdof was. alfo co]leled out of every quarter of the coun-
try : *' binosy iri/ios^ vel etiafu fe/ios, ex fingulis territorii qua-
** drant'ibus .'* For, living in the neighbourhood, they were
properly the very country, or pais, to which both parties had
appealed ; and were fuppofed to know beforehand the cha-
ra6lcrs of the parties and wltnefTes, and therefore they better
knev/ what credit to give to^ the fadts alleged in evidence.
But this convenience was overbalanced by another very na-
tural and almofl: unavoidable inconvenience ; that jurors,
coming out of the immediate neighbourhood, would be apt
iCo. Liu. 15$, SWJeobataiiage. ir, aj Geo. IL B. R.
XI. f po. Litt. 156.
_ iv. V. Bifliap of lyorcefter. Ivf. * Stkrahook de jure Gotb. l.i, r. 4.
to
Cb. 23. Wrong s." 360
to intermix their prejudices and partialities in the trial of
right. And this our law was fo fenfible of, that it for a long
time has been gradually relinquifliing this pradice; the num-
ber of neceffary hundrcdors in the whole panel, which in the
reign of Edward III. were conftantly^A;', being in the time
of Fortcfcue'^ reduced Xofotir. Afterwards indeed the flatute
35 Hen. VIII. c. 6. reftored the antient number o^ ftXy but
that claufe was foon virtually repealed by ftatute 27 Eliz.
C. 6. which required only tivo. And (iir Edward Coke alfo"
gives us fuch a n-riety of circumftances, whereby the courts
permitted this necefl'ary number to be evaded, that it appears
they were heartily tired of it. At length, by ftatute 4 & 5
Ann. c. 16. it was entirely aboliilied upon all civil actions,
except upon penal ftatutes ; and upon thofe alfo by the 24
Geo. II. c. 18. the jury being now only to come de corpore
comitatusy from the body of the county at large, and not de
viclnetOy or from the particular neighbourhood. The array
by the antient law may alfo be challenged, if an alien be party
to the fuit, and, upon a rule obtained by his motion to the
court for a jury de medietate Hnguaey fuch a one be not return-
ed by the flierifF, purfuant to the ftatute 28 Edward III. c. 13.
enforced by 8 Hen. VI. c. 29. which ena6l, that where either
party is an alien born, the jury ftiall be one half denizens,
and the other aliens (if fo many be forthcoming in the place)
for the more impartial trial. A privilege indulged to ftrangers
in no other country in the world ; but which is as antient
with us as the time of king Ethelred, in whofe ftatute de
monticolis TVallief (then aliens to the crown of England,)
cap. 3. it is ordained, that *' duodetii legates homiucsy quorum
" fex Walli et fex jfugli erunij Anglis et Wallis jus dicunto^*
But where both parties are aliens, no partiality is to be pre-
fumed to one more than another j and tlierefore it was re-
folved foon after the ftatute 8 Hen. VI. "" that where the
ifTue is joined between two aliens (unlefs the plea be had be-
fore the mayor of the ftaple, and thereby fuhjcil: to the reftric-
tions of ftatute 27Edw. III. ft. 2. c B.) the jury flrall all
be denizens. And it now might be a qucftion, how far the
Glib. Hift. C. P. c. g. "I Inft. 157.
" dt Laud. LL. c. iy ; Years, zi Hen. VJ. 4.
ftatute
26i Private Book III.
ftatute 3 Geo. II. c. 25. (before referred to) hath in civil
caufes undefignedly abridged this privilege of foreigners, by
jthe pofitive direlions therein given concerning the manner
cf impanelling jurors, and the perfons to be returned in fuch
panel. So that (unlefs this ftatute is to be conftrued by the
fame equity which the ftatute 8 Hen. VI. c. 29. declared
to be the rule of interpreting the ftatute 2 Hen. V. ft. 2.
c. 3. concerning the landed qualification of jurors in fuits
to which aliens were parties) a court might perhaps hefitate,
"whether it has now a power to dircl: a panel to be returned
de raedietate Iwguae, and thereby alter the method prefcribed
for ftriking a fpecial jury, or balloting for common jurors.
Challenges to the polls, in capita, are exceptions to
particular jurors; and feem to anfwer the recufatio judicij in
the civil and canoA laws : by the conftitutions of which a
judge might be refufed upon any fufpicion of partiality*.
By the laws of England alfo, in the times of Bra(lon f and
Fleta% a judge might be refufed for good caufe ; but now
the law is otherwife, and it is held that judges and juftices
cannot be challenged ^ For the law will not fuppofe a pof-
fibihty of bias or favour in a judge, who is already fworn to
adminifter impartial juftice, and whofe authority greatly de-
pends upon that prefumption and idea. And ftiould the fat
at any time prove flagrantly fuch, as the delicacy of the law
will not prefume beforehand, there is no doubt but that fuch
mifbehaviour would draw down a heavy cenfure from thofe
to whom the judge is accountable for his condud.
But challenges to the polls of the jury (who are judges
of fal) are reduced to four heads by fir Edward Coke '' :
propter honoris refpeSium ; propter defeSlum ; proper affectum ;
and propter deliBum.
I. Propter honoris refpeBum ; as if a lord of parliament be
impanelled on a jury, he may be challenged by either party,
or he may challenge himfelf.
Cod. 3. I. 16. Decretal. I. Z. t. 28. ^ /. 6. c. 37.
c. 'if). 'Co. Lift. 294.
y /. 5. c T5. " I Inft. 156.
' * 2. Propter
\
Ch. 23- Wrongs. ^62.
1. Propter defeSium; as if a juryman be an alien born, this
is detetl of birth ; if be be a fl.ive or bondman, this is defel
of liberty, and he cannot be liber tt legalis homo. Under the
word homo aifo, though a name common to both fexes, the
female is however excluded, propter defeBum fexus : except
when a w idow feigns herfelf with child, in order to exclude
the next heir, and a fuppofititious birth is fufpeled to be in-
tended ; then upon the writ de ventre infpiciendo^ a jiiry of
women is to be impanelled to try the qucllion, whether with
child or not*^. But the principal deficiency is defe6t of
eftate, fufficient to qualify him to be a juror. This depends
upon a variety of ftatutes. And, firft, by the ftatuteWeflm.j.
13 Edw. I. c. 38. none (hall pafs on juries in aflTifcs within
the county, but fuch as may difpend 20J. by the year at the
lead ; which is increafed to 40J-. by the ftatute 21 Edw. L
ft. 1. and 2 Hen. V. ft. 2. c. 3. This was doubled by the
ftatute 27 Eliz. c. 6. which requires in every fuch cafe the
jurors to have eftate of freehold to the yearly value of 4/. at
the leaft. But, the value of money at that time decreafing
very confiderably, this qualification was raifed by' the ftatute
j6 & 17 Car. II. c. 3. to 2c/. per annutn, which being only
a temporary al, for three years, was fuflPered to expire with-
out renewal, to the great debafement of juries. However by
the ftatute 4 and 5 W. & M, c. 24. it was again raifed to
10/. per atitium in England and 61. in Wales, of freehold lands
or topyhold; which is the firft time that copyholders (as fuch)
were admitted to ferve upon juries in any of the king's courts,
though they had before been admitted to ferve in fome of the
ftierifF's courts, by ftatutes i Ric. III. c, 4. and 9 Hen. Vll.
c. 13. And, laftly, by ftatute 3 Geo. II. c. 25. any leafe-
holder for the term of five hundred years abfolute, or for any
term determinable upon life or lives, of the clear yearly value
of 20/. per annum over and above the rent refcrved, is quali-
fied to ferve upon juries (6). When the jury is de medietat
<= Cro. Eliz. 566.
(6) Upon account of the fmall number of freeholders in the
county of Middlefcx, and the frequent occafion for juries at Weft-
minfler
$62 Private Book III.
linguae, that is, one moiety of the Engllfh tongue or nation,
and the other of any foreign one, no want of lands fhall be
C 3*^3 1 caufe of challenge to the alien \ for, as he is incapable to
hold any, this would totally defeat the privilege "*.
3. Jurors may be challenged propter offeElum, for fuf-
picion of bias or partiality. This may be either a principal
challenge, or to the favour. A principal challenge is fuch,
where the caufe ailigned carries with it prima facie evident
marks of fufpicion, either of malice or favour : as, that a
juror is of kin to either party within the ninth degree '; that
he has been arbitrator on either fide ; that he has an intereft
in the caufe ; that there is an alion depending between him
and the party ; that he has taken money for his verdil ; that
he has formerly been a juror in the fame caufej that he is the
party's mafter, fervant, counfellor, fleward, or attorney, or of
the fame fociety or coporation with him : all thefe are prin.
cipal caufes of challenge ; which, if true, cannot be over-
ruled, for jurors mud be oinni exceptione mnjores. Challenges
io the favour, are where the party hath no principal challenge ;
but objects only fome probable circumftances of fufpicion, as
Sec Stat. 2 Hen. V. 11. 2. c. 3. 8 Hen. VI. c. 29. Finch. L. 401.
minfter in that county, it was enaftcd by 4 Geo. //. c. 7. that a
leafeholder for any number of years, if the improved annual value
of his leafe be 50I. above all ground-rents and other refer-
vations, (hall be liable to ferve upon juries for that county. By
the 3 Geo. II. c. 25. perfons impanelled upon any jury witlu'n the
city of London fhall be houfeholders, and pofTefled of fome ellate
either real or perfonal of the value of 1 00 1.
It -is one of the claufes in the bill of rights that jurors which
pafs upon men in trials for high treafon oughr to be freeholders.
I W. ef M.f 2. c. 2.
But any freehold is fufficient, if he has copyhold befides, fo
that the whole amounts to 10 1. per annum. Fojl. 7.
But fuice the 4 & 5 W. & M. c. 24. it does not feem necef-
ary that jurors in other crimiaal trials Ihould be freeholders.
acquaintance
Ch. 23. Wrongs, 36*
acquaintance and the like ^ ; the validity of which muft be
left to the determination of triors^ whofe office it is to decide
whether the juror be favourable or unfavourable. The triors,
in cafe the firfl man called be challenged, are two indifferent
perfons named by the court ; and, if they try one man and
find him indifferent, he (hall be fvvorn ; and then he and the
two triors (hall try the next j and when another is found in-
different and fvvorn, the two triors (hall be fuperfeded, and
the two firft fworn on the jury (hall try the reft^.
4. Challenges propter deliBum are for fome crime or
mifdemefnor, that affels the juror's credit and renders him
infamous. As for a convilion of treafon, felony, perjury, or
confpiracy ; or if for fome infamous offence he hath received
judgment of the pillory, tumbrel, or the like ; or to be brand-
ed, whipr, or fhigmatizcd ; or if he be outlawed or excommu- [ 364 ]
nicated, or hath been attainted of falfeverdicl:,/>r/7fm/r^, or
forgery; or laftly, if he hath proved recreant when cham-
pion in the trial by battle, and thereby hath loft his liberam
legem. A juror may himfelf be examined on oath of voir dire,
veritatem dicere^ with regard to fuch caufes of challenge, as are
not to his diflionour or difcredit ; but not with regard to any
crime, or any thing which tends to his difgrace or difad-
vantage ''.
Besides thefe challenges, which are exceptions agalnft
the fitnefs of jurors, and whereby they may be excluded from
ferving, there are alfo other caufes to be made ufe of by the
jurors themfelves, which are matter of exemption ; whereby
their fervice is excufi-dy and not excludtd. As by flatute Weft. 2.
13 Edw. I. c. 38. fick and decrepit perfous, perfons not com*
morant in the county, and men above feventy years old ; and
by the ftatute of 7 & 8 W. III. c. 32. infants under twenty-
one. This exemption is alfo extended by divers ftatutes, ,
cuftoms, and charters, to phyficians and other medical per-
' In the remlJa, or jury of the an- *' caufa tra refuJlan -^ tt'iam plures ex
ticnt Gottii, three challenges only were * caufaj.raegranti rt manif.fia,"{%Una
allowed to the favour, but the principal h-ok. /. i. f. 4^
challenges were indefinite, Lktbat * Co. Litt. 158.
*' faJam fxcifere, et Jtmftr ex frclaLili ^ lb J. i^Z.l.
fons.
364 Private Book IIL
fons, couTifel, attorneys, officers of the courts, and the like ;
all of whom, if impanelled, muft fhew their fpecial exemp-
tion. Clergymen are alfo ufually excufed, out of favour and
refpedl to their function: but, if they are feifed of lands and te-
nements, they are in ftrilnefsliable to be impanelled in refpeft
of their lay-fees, unlefs they be in the fervice of the king or
of fome bifliop : *'/ obfequio domini regis y vel alkujus epifcopi '."
If by means of challenges, or other caufe, a fufficient
number of unexceptionable jurors doth not appear at the trial,
either party may pray a /fl/fx. A //(?j- is afupply ofy;^f)6 men
as are fummoned upon the firft panel, in order to make up
the deficiency. For this purpofe a writ of decern tales^ oElo
ialesy and the like, was ufed to be iffued to the fherifF at com-
mon law, and muft be ftill fo done at a trial at bar, if the
jurors m^ke default. But at the aflifes or nift prhiSy by vir-
tue of the ftatute 35 Hen. VI 11. c. 6. and other fublequent
L 3^5 3 ftatutes, the judge is empowered at the prayer of either party
to award a tales de circumjlautibus], of perfons prefent in
court, to be joined to the other jurors to try the caufe ; who
are liable however to the fame challenges as the principal
jurors ( 8 ). This is ufually done, till the legal number of twelve
F. N. B, 186. Reg. Bre-v. 170. J Append. N' II. 4.
(8) Before the ftatute 3 Geo. II. c. 25. twenty-four different
jurors were returned for the trial of each feparate caufe, in the
manner of twenty-four fpecial jurymen at prefent ; hence the ne-
ccflity of praying a tales from the non-attendance of twelve unex-
ceptionable perfons in each panel would frequently occur. And
by the 7 & 8 W. III. c. 32. it was enafted, that the talefmen fiiould
be feledled from thofe who had been fummoned in other panels.
But finecthe praftice was introduced by 3 Geo. II. c. 25. of im-
panelling not Icfs than forty-eight, nor more than fevcnty-two,
for the trial of all common caufes, the provifions of the Itatutes,
refpefting a talesy are now confined in a gi'eat meafure to fpecial
juries. If a tales, in default of fpecial jurymen, is prayed, it is fup-
plied agreeably to the 7 & 8 W. III. c. 32. from the panel of
common jurymen. No tales can be prayed where all the fpecial
jurymen are abfent.
By
Gh. 23. W R o N G s. 3^5
be completed; In which patriarchnl and npoftolical number
fir Edward Coke ^ hath difcovered abundance of myftery '.
When a fufficient number of perfons ijtjipanelled, or
taks-meuj .appear, they are then feparately fworn, well and
truly to try the iflue between the parties, and a true verdi(fl
to give according to the evidence ; and hence they are deno-
minated the ]nry, J urata, znd ]\iTovs,fc. Juratores,
We may here again obferve, and obferving we cannot
but admire, how fcrupuloufly delicate, and how impartially
juft the law of England approves itfelf, in' the conflitutioii
and frame of a tribunal, thus excellently contrived for the
teft and invcftigation of truth ; which appears mofl remark-
ably, I. In the avoiding of frauds and fecret management,
by elecling the twelve jurors out of the whole panel by lot.
2. In it's caution againd all partiality and bias, by qualhing
the whole panel or array, if the officer returning isfufpeled
to be other than indifferent ; and repelling particular jurors,
.'' 1 Inft. 155, amoDgthe inhabitants of Norway, from
' Paufanias relates, that at the tiial whom the Normans as wellas the Danes
of Mars, for murder, in the court d=no- were defcended, a great veneration was
m'lmtei ylretf>agus from that incident, paid to the number ttvel-ve : <* nihil'
he was acquitted by a jury compofed of " fandius, nihil antiquiui fu'it ; perinde
tiud-ve pagan deities. And Dr. Hie'-; es, '* ac fi in ipfa hoc r.umero jecre'.a quaedam
who attributes the introduftion of this " ejfet religio.*^ {DiJJ'ert. epijiolar, 49.)
number to the Normans, tells us that Spelm. Glojf. 329.
By the 35 Hen. VIII. c. 6. each party in the ifliie in a civil
ation joined at Weftminfter may pray a talcs, but this ftatute did
not extend to cafes in which the king was a party ; therefore by
the 4 & 5 Ph. & M. it was enaftcd, that in criminal cafes tried
by writ of nifi prias, any perfon authorized, that is now the at-
torney general, or any profecutor by his warrant, may pray a
tales, but this does not extend to the defendant ; and the pro-
fecutor of any penal a6lIon, who fues as well for the crown as
himfelf, may pray a tales without fuch warrant ; and by the 14EI1Z.
c. 9. the defendant in thefe ptnal adlions may alfo pray a tales.
In crlrpinal cafes, where the iffue is joined at Wcftmiriller, tried
at nifi prius in counties palatine, in order tp pray a talcs the pro-
fecutor muft have the warrant of the king's attorney general,
and not of the attorney general of the county. 4 Burr. 2 171.
9 if
^6$ Private Book III.
if probable caufc be (hewn of malice or favour to either party.
The prodigious multitude of exceptions or challenges allow-
ed to jurors, who are the judges of fal, amounts nearly to the
fame thing as was pralifed in the Roman republic, before
file loft her liberty ; that the felet judges (hould be appoint-
ed by the prjetor with the mutual confent of the parties. Or,
r 266 3 as Tully " expreffes it: *' nemlnem voltierunt majores nojir'iy non
" modo de exijiimatione ctijufquamy fed tie pecuniaria quidem de re
* minima f ejfejudlcem ; ntji qui inter adverfarios convenijfet'*
Indeed thefe felecii judices bore in many refpe^ls a re-
markable refemblance to our juries : for they were firft re-
turned by the prjEtor; de decuriafenatoria confcrihttnttir: then
their names were drawn by lot, till a certain number was
completed \ in urnam fortito mittuntury tit de pluribus uecejfa-
rkif mtmerus conjici pojjfet : then the parties were allowed their
challenges ; pojl urnam permittitur accufatoriy ac reoy ut ex illo
Tiumero rejtciant quos putaverint fihi aut inimicos aut ex aliqua re
incomtnodos fare : next they ftruck what we- call a iales ; re-
jeciione celebrata, in eorum locum qui rejeffi fuerunt fubforticba-
tar praetor alios, quibus ille judicum legitimus numerus complc'
retur : laftly, the judges, like our jury, were fworn ; his pcr-
feclisy jurabant iti leges judices, utobjlri^i religione judicarent^.
The jury are now ready to hear the merits , and, to fix
their attention the clofer to the fafls which they are impa-
nelled and fworn to try, the pleadings are opened to them
by counfel on that fide which holds the affirmative of the
queftion in ifllie. For the iflue Is faid to lie, and proof is
alw-ay? firft required, upon that fide which affirms the mat-
ter in queftion ; in which our law agrees with the civil * ;
* ei incumblt probatio, qui dicit, non qui negat : cum per rerum
' naturam faclum-negantis probatio nulla Jit." The opening
counfel briefly Informs them what has been tranfa6led In the
court above, the parties, the nature of the alion, the de-
^ fn>-Cluent':o. 43. Greeks,the_;Wfr^/^(ff;of the Romans,
" Afcon. in Ck. Verr, I. 6. A learn- and l>he juries of the Englift, that he is
ed writer of our own, Dr. Pettlngal, tempted to conclude that the latter are
hath ftewn in an elaborate work (pub- derived from the former.
lidicd A- D. ^769.) fo many refem- " Ff. zz. 3. 2. Csd. 4. 19. 23.
blaaces between the i.a.<^a.t of the
' 7 claratlon.
Ch. ij. Wrong s. 3^6
claration, the plea, replication, arid other proceedings, and
laflly, upon what point the iflue is joined, which is there
fent down to be determined. Inftead of which formerly p
tlie whole record and procefs of the pleadings was read to
them in Englifh by the court, and the matter in IfTue clearly ^ 367 3
explained to their capacities. The nature of the cafe, and
the evidence intended to be produced, are next laid before
them by counfel alfo on the fame fide: and, when their evi-
dence is gone through, the advocate on the other fide-opens
the adverfe cafe, and fupports it by evidence ; and then the
party which began is heard by way of reply.
The nature of my prefent defign will not permit me to
enter into the numberlefs niceties and dlftInHons of what is,
or is not, legal evidence to a jury ''. I fiiall only therefore fe-
lel a few of the general heads and leading maxims, relative
to this point, together with fome obfervatious on the man-
ner of giving evidence.
Akd, firft, evidence fignlfies that which demonftrates,
makes clear, or afcertains the truth of the very fal or point iu
iflue, either on the one fide or on the other ; and no evidence
ought to be admitted to any other point. Therefore upon
an afllon of debt, when the defendant denies his bond by
the plea of non eji faBum^ and the iflue is, whether it be the
defendant's deed or no; he cannot give a releafe of this bond
in evidence ; for that does not deftroy the bond, and there-
fore does not prove the iflue which he has chofen to rely
upon, viz. that the bond has no exiftence.
Again ; 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 knowlege. The former,
or proofs.^ (to which in common fpeech the name of evidence
is ufually confined,) are either written, ox parol ^ that is, by
P Fortefc. c. 2^. out loting fome beauty and deftroying
1 This is admirably well performr;d the chain of the whole; and which hath
In lord chief baron Gilbert's excellent lately been engrafted into a very ufeful
tieatife cf evidence; a work, which it work, the iniroduaitr. to the law of niji
isimpofljbletoabftiaftorabudge, with- pnut, 410,1767.
Vol. Ill, D d word
5^7 Private Book III.
word of mouth. Written proofs, or evidence, are, i . Re-
cords, and 2. Antient deeds of thirty years (landing, which
prove themfelvcs (9)5 but 3. Modern deeds, and 4. Other
C 368 ] writings, muft be attefted and verified by j&arc/ evidence of wit-
nefles. And the one general rule that runs through all the
doftrine of trials is this, that the beft evidence the nature of
the cafe will admit of (hall always be required, if pofTible to
be had; but, if not poffible, then the bed evidence that can be
had fhall be allowed ( i o). For if it be found that there is any
(9) This rule is laid down in books of evidence without fuf-
ficient explanation of it's principle, or of the extent of It's ap-
plication. There feems to be danger In permitting a deed to be
read merely becaufe It bears date above thirty years before It's
prodiid;ion, and In requiring no evidence, where a forgery may
be committed wlih the leafl probability of deteftlon. Chief
Baron Gilbert lays down that where poffefllon has gone agreeably
to the limitations of a deed bearing date thirty years ago, it
may be read without any evidence of It's execution, though the
fubfcrlbing wltnefTes be ftlU living. Law of Ev. 94. For fuch
poffeflion affords fo ftrong a prefumptlon in favour of the authen-
ticity of the deed, as to fuperfede the neceflity of any other
proof of the validity of its origin, or of it's due execution.
The court of king's-bench have determined that the mere pro-
duftlon of a parlfh-certlficate dated above thirty years ago, was
fufficlent to make It evidence without giving any account of the
cuftody from which It was extrafted. 5 T. R. 259.
(10) No rule of law Is more frequently cited, and more gene-
rally mifconcelved, than this. It is certainly true when rightly un-
derllood ; but It Is very limited In it's extent and application. It
lignlfies nothing more than that. If the befl legal evidence cannot
pofllbly be produced, the next beft legal evidence fhall be ad-
mitted. Evidence may be divided into primary and fecondary ;
and the fecondary evidence is as accurately defined by the law as
the primary. But in general the want of bettft" evidence can
never juftify the admlflion of hearfay, Interefted wltnefles, or the
, copies of copies, &:c. Where there are exceptions to general
rules, thefe exceptions are as much recognized by the law as the
general rule ; and where boundaries and limits are eftablilhed by
the law for every cafe that can pofllbly occur, it is immaterial
what we call the rule, and what the exertion.
better
/ph. 23. Wrongs, 368
ijctter evidence exifling than is produced, the very not prpr
ducing it is a prefumption thai it would have deteled foti^^
falfehood that atprefentis concealed. Thus, in order to prove
a leafe for years, nothing elfe (hall be admitted but the very
jdeedof leafe itfelf, if in bein^ ; but if thaj: be pofjtively proved
to be burnt or deftroyed, (not replying on any loofe negative,
as that it cannot be found, or the like,) then an attefted copy
may be produced ; or^ar^?/ evidence be given of it's contents.
So, no evidence of a difcourfe with another will be admitted,
but the m^n hinjfelf muft be produced : yet in fome cafes
(as in proof of any general cufloras, or matters of common
tradition or repute) the courts admit of kearfay eyidence, or
an account of what perfons deceafed have declared in their
life-time : bat fuch .evidence will not be received of any par-
ticular facts(ij). So too^ books of account, or (liop-books,
( I J ) In cafes of culloms and prefcnptive rights, hearfay or tra-
ditional evidence is not admitted until fome inftances of the cuftom
or exercife of the riglit claimed are firfl proved. The declara-
tions of parents refpedling their marriage, and the legitimacy of
their children, are admitted after their deceafe as evidence. And
hearfay is alfo received refpe<Eling pedigrees aqd the death of rela.
.tlons abroad. Bull. N. P. 294. 2 Efp. 784. What has been
fald in coKverfation in the hearing of any party, if not con-
tradicted by him, may 'be given In evidence; for not being denied,
it amounts to a fpecles of confeffion. But it can only be received
where it muft be prefumed to have been heard by the party, an(J
.therefore In one cafe the cojjrt flopped tljie witnefs from repeating ^^
.converfation, which had pafled In a rqom where the prifoner was,
but at the time whilft fiie had fainted away. It has been the prac-
tice of the quarter-fcflions to admit the declarations of pauperis
refpe6ling their fettlements to be received as evidence after their
.death, or if living, where they could not be produced. See 3
T. R. 707. where the judges of the king's bench were divided
upon tilie legality of this praftlce, and where the fubje<il of hearfay
evidence is much difcuffed. In criminal cafes, the declai-atlons of
a pcrfon, who relates in extremis , or under an apprehenfion of dying,
,thc caufe of his death, or any other material circumftance, may ba
.^mitted in evidence ; for the mind in that awful ftatc is prefumed
^0 be yndcr as great a religious o}jlIgatIon to (Jifclofc the triith, &
;':i D d 7, ^$
^6S Private Book HI.
are not allowed of themfelves to be given in evidence for the
owner; but a fervant who made the entry may have rccourfe
to them to refrefh his memory : and, if fuch fervant (who
was accuftomed to make thofc entries) be dead, and his hand
be proved, the book may be read in evidence ""t for as
tradefmen are often under aneceflity of giving credit without
any note or writing, this is therefore, when accompanied
with fuch other collateral proofs of fairnefs and regularity ^y
the beft evidence- that can then be produced. However this
dangerous fpeciesof evidence is not carried fo far in England
as abroad ' ; where a man's own books of accounts, by a dif-
tortion of the civil law (which feems to have meant tlie fame
thing as is pralifed with, us ' ) with the fuppletory oath of
[ 3^9 ] the merchant, amount at all times to full proof. But as this
kind of evidence, even thus regulated, would be much too
hard upon the buyer at any long dillance of time, the ftatute
7 Jac. I. c. 12. (the penners of which feem to have ima-
gined that the books of themfelves were evidence at common
law) confines this fpecies of proof to fuch tranfadlions as
have happened within one year before the alion brought ;
' Law of tiifi frlusy 266. ad probationemjola ttonfufficiunt. (Cod. 4.
^Salk. 285, 19. 5) Nam excmflo ferr.iciojum eftf
* Gail, objervat, 2. 20. 23. ut ti fcnpturae credalurf qua unu''qmf-^
' Injirumtnta domefika, Jea adnotat'iCy que fihi adnotattone propria debitorem
ft mnalili quoque sdmtnkulii adjuventur, corjlituit. (Ji'id.l. rj.)
is created by the adminiflratlon of an oath. But declarations of a
deceafed perfon ought not to be received, unlefs the court is fatis-
iied, from the eircumllances of the cafe, that they were made un-
der the Impreflion of approaching diflblution. Leaches Cafes f^oo.
But the declarations of a felon at the place of execution cannot be
received, as he is incompetent to give evidence upon oath ; and
the fituation of a dying man is only thbught equivalent to that of
a competent witnefs, vsrhen he is fworn. Ibid. 276. By the i &
2 Ph. & Mar. c. 13. depofitions taken before a juftice of peace
in cafes of felony, may be read in evidence at the trial, if the wit-
nefs dies before the trial. But as the ftatute confines this to felony,
and as it is an innovation upon the common law, it cannot be ex-
^ tended to any raifdemeanour. i Salk. 281.
unlefs
Ch. 23. Wrong s. 369
unlefs between merchant and mercliant in the ufual inter-
courfe of trade. For accounts of fo recent a date, if erro-
neous, may snore eaGly be unravelled and adjufted (12.)
With regard to parol evidence, or wltnejfes ; it muft firft
be remembered, that there is a procefs to bring them in l>y
writ of fnbpoena ad tejiificandum : which commands them,
laying afide all pretences and excufes, to appear at the trial
on pain of 100/. to be forfeited to the king-, to which the
ftatute 5 Eli;?, c. 9. has added a penalty of 10/. to the
party aggrieved, and damages equivalent to thelofs fuftained
by wantof his evidence. But no witnefs, unlefs his reafon-
able expences be tendered him, is bound to appear at all ;
nor, if he appears, is he bound to give evidence till fuch
charges are a6lually paid him : except he refides within the
bills of mortality, and is fummoned to give evidence within
the fame- This compulfory procefs, to bring in unwilling
witnefles, and the additional terrors of an attachment in cafe
of difobedience, are of excellent ufe in the thorough invefti-
gation of truth (13): and, upon the fame principle, in the
Athenian courts, the witnciTts who were fummoned to attend
the trial had their choice of three things : either to fwear to
the truth of the fal in queftion, to deny or abjure it, or
^Ife to pay a fine of a thoufand drachmas ".
Pott. Antlq. b. i. c. 21.
(12) The entries in the book of a pcrfon deceafed not con-
nefted with the parties are of no more avail than hearfay. But
the books of an incumbent rcfpefting the tithes of the parifti are
evidence for his fucceflbr. 5 T. J?. 123. 2 Fcf. 43.
(13) The ufual mode of proceeding agaioft witnefles for dif-
obedience yf the writ of fubpoena is by the fummaiy procefs of an
attachment for a contempt ; but the courts will not grant an at-
tachment again ft a witnefs, unlefs all the necefliiry expences of the
journey, and the witnefs's ftayatthe place of trial, bc tendered at
tkc time of ferving the fubpoena. H. Bl. 49.
D d 3 ^LL
Private BodK llii
All witnelTes, of whatever religion or country, that have?
the ufeoftheirreafon (i4),are to be received and examined j
cxceptfuch as zrt infamous y or fuchas are interejled\nt\ictvtnt
of the caufc. All others are competent witnefles ; though the:
jviryfromother circurhftanCes -wiWiMdgeohliQix credibility {i 5 )-
14) A Mahometan may te fvvofn upoft the Alcoran, and
a Gentoo a!ccording to the cuftom of India, and their evidence
may be received even in a criminal cafe. Leaches Cafes ^ 52 i
I yltk. 21. But an Atheift, or a perfon who has no belief or no-
tion of a God, or a future ftate of rewards and punifhment^
ought not in any inftance to be admitted as a witnefs. i Atk, 45.
I have known a witnefs rejedled, and hifled out of court, who
declared that he doubted of the exiftence of a God and a future!
ilate. But I have fince heard a learned judge declare at nifi prius^
that the judges had refolved not to permit adult witneffes to be in-
terrogated refpedling their belief of the Deity and a future Itate;
It is probably iridre conducive to the courfe of juftice that thii
Ihould be prefumed till the contrary is proved. And the moft re*
ligious witnefs may be fcandalized by the imputation, which the
Very queftion conveys.
Quakers, who refufed to take an oath under any form by the 7
& 8 W. c. 34. were permitted in judicial proceedings to make a
folemn affirmation j and if fuch affirmation, like an oath, is proved
to be falfe, they are fubjc6l to the penalties of perjury. Biit thiS
does not extend to crimiilal caufes. 8 Geo. T. c. 6. 22 Geo. 11^
c. 30. and c. 46.
Their affirmations are received in penal aftions, as for bribery.
See Atchefon V. Everitt, Cowp. 382..where this fubjeft is largely
difcufied.
Lord Mansfield lays down generally that an affirmation is not
refufed where the aftion, though in form a criminal a!ion, in fub-
ftance is a mere aftion between party and party. Lord Mansfield
tliere laments that fuch an exception had been made by the legifla-
lure.
(15) " 'The old cafes upon the ccrrtpetency of witneffes have
*' gone upon very fubtle grounds. But of late years the courts
* have endeavoured, as far as poffible, confident with authorities,
** to let the objeflioh go to the credit, rather than to the coRl-
^etency of a witnefs." Lord Mcmsfieldy i T, R, 30*
'I
Ch. 23. Wrongs. 370
Infamous perfons are fuch as may be challenged as jurors,
propter deliBum ; and therefore never fhall be admitted to give
evidence to inform that jury, with whom they were too fcan-
dalous to aflbciate. Interefted witnefles may be examined
upon a voir dirty if fufpedled to be fecretly concerned in the
event; or their intereft may be proved in court. Which la ft
is the only method of fupporting an objeftion to the former
ciafs ; for no man is to be examined to prove his own in-
famy {\6). And no counfel, attorney, or other perfon, in-
truded with the fecrets of the caufe by the party himfelf,
fhall be compelled, or perhaps allowed, to give evidence of
fuch converfation or matters of privacy, as came to his know-
legc by virtue of fuch truft and confidence '^ (17) : but he may
^ LiW of ni/i frius, 267.
It feems now to be eflablifhed, that if a witnefs does not imme-
diately gain or lofe by the event of the caufe, and if the verdil
in the caufe cannot be evidence either for or againft him in any
other fult, he fnall be admitted as a competent witnefs, though
the circumftances of the cafe may in fome degree leflen his cre-
dibility. Bent v Baker, 3 T. R. 27. See 4 vol. 157. n. 4.
A fervant of a tradefman from neceflity is permitted in an aftlon
by his mafter to prove the delivery of goods, though he himfelf
may have purloined them ; but in an adlion brought againft, the
mafter for the negligence of his fervant, the fervant cannot be a
witnefs for his mafter without a releafe ; for his mafter may after-
Wards liave his action againft the fervant, and the verdift recovered
againft him may be given in evidence in that aftionto prove the
damage which the mafter has fuftained. 4 T. R, 589.
(16) A witnefs may be examined with regard to his own in-
famy, if the confeflion of it does not fubjedt him to any future pu-
niftiment ; as a witnefs may be alked if he has not ftood in the pil-
lory for perjury. 4 T. R. 440.
( 17 ) But the principles and policy of this rule reftraln it to that
confidence only, which is placed in a counfel or folicitor, and
which muft neccfTarily be inviolable, where the ufe of advocates
and legal afliftants is admitted. But the purpofcs of public
juftice fuperfcde the delicacy of every other fpecies of confiden-
tial communication. In the trial of the duchcfa of Kingfton it
was dctcrmiocd that a friend might be bound to difclofe, if ne-
D d 4 ceftary
370 P R I V A TtE Book III.
be examined as to mere matters of fal, as the. execution of
a deed or the like, which might have come to his kiiowlege
without being intruded in the caufe. - '
One witnefs (if credible) \% fufficient evidence to a jury of
any fingle fat: though undoubtedly the concurrence of two
or more corroborates the proof. Yet our I'a^y .confiders that
there are many trunfaclions to which only one perfon is privy ;
and therefore does not ahvays demand the telliraony of two,
as the civil law univerfally requires. ** Unltis refponfio tejlis
" ovinir.o non atidiattir "''." To extricate itf^lf out of which
?tbfurdiry, the modern practice of the f ivil law courts has
plunged itfelf into another. Fqr, as they da not allow a lefs
number than two witneffes to be plena probation they call the
teftimony of one, though never (o clear and ^o(\i\\Qyj'emi
plena probaiio Gn\y , on whom no fentence can be founded.
To make up therefore the necclFary complement of witnefles,
when they have one only to a fnig'e fadf, they admit the
party himfelf (plaintiff or defendant) to be examined in his
own behalf; and adminifterto him what is called the fupple-^
tory oath ; and, if his evidence happens to be in his own fa-
vour, this immediately converts the half proof into a whole
one. By this ingenious device fatisfying at once the forms
of the Roman law, and acknowleging the fuperior reafon-
{[ 371 3 ablenefs of the law of England : which permits one witnefs
to be fufficient where no more are to be hud : and, to avoi<.l
all temptations of perjury, lays it down as aji invariable rule,
that fiemo tejlis ejfe debet in propria caufa.
Positive proof is always required, where from the nature
of the cafe it appears it might ppflibly have been had. But,
* Qd. 4. 20. 9.
peffary in a court of juftice, fecrets of the moft facred nature,
which one fex could repofe in the other. And that a furgeon was
bound to communicate any information whatever, which he was
poffefTed of in confequence of his profeilional attendance. 1 1 St.
Tr. 243. 246. And thofe fecrets only, communicated to a counfel
or attorney, are inviolable in a court of juftice, which have been in-
trufted to them whilft afting in their refpedlive characters to the
party 38 their plient, ^j. 7"- i?. 43 1 . 753.
4* R^^tt;
Ch. 23. Wrongs. 371
next to pofitlve proof, circumjlantlal evidence or the doctrine
oi prefuiHi)tions muft take place : for when the faft itfelf can-
not be demonftratively evinced, that which comes nearell to
the proof of the fat is the proof of fuch circumftances which
cither neceffarilyy or ufually, attend iuch fatts ; and thefc are
called prefumptions, which are only to be relied upon till the
contrary be actually proved. Stabitur praefumptioni donee
prott'tur in contrarium ^. Violent prefumption is many times
equal to full proof i^; for there thofe circumftances appear,
which necejfarily attend the fat. As if a landlord fues for rent
due at Michaelmas 1754, and the tenant cannot prove the
payment, but produces an acquittance for rent due at a fub-
fequcnt time, in full of all demands, this is a violent pre-
fumption of his having paid the former rent, and is equiva-
lent to full proof; for though the actual payment is not
proved, yet the acquittance in full of all demands is proved,
which could not be without fuch payment ; and it therefore
induces fo forcible a prefumption, that no proof (hall be ad-
mitted to the contrary^ ( 1 8). Prcbable prefumption arifing from
fuch circumftances as ufually attend the fact, hath alfo it's
due weight : as if, in a fuit for rent due in i754> the tenant
proves the payment of the rent due in 1755 ; this will pre-
vail to exonerate the tenant % unlefs it be clearly fiiewn that
the rent of 1754 was retained for fome fpecial reafon, or
that there was fome fraud or miftake : for otherwife it will
be prefumed to have been paid before that in 1755, as it Is
moft ufual to receive firft the rents of longeft ftanding. Light,
orrafli, prefumptions have no weight or validity at all (19).
Co. Lit^ 373. ^ Cilb. evid. 161.
y Hid. 6. Co. Liu. 373.
(rfj) This can fcarcely be corredl j I fliould conceive that
proof may be admitted to repel all prefumptions whatever ; and
even if a receipt fhould be produced cxprefsly for the rent of the
year 1 754, ftiU the landlc5rd might fhew that it had been obtained
by miftake or fraud, and tliat no rent had been received at the
time.
(19) It is difficult to fay what ia a light and rafii prefumption,
if it is any prefumption at all. Any circumftancc may be proved
from
37^ Private Boofc III*
The oath admlniftered to the witnefs is not only that
what he depofes (hall be true, but that he fhall alfo depofe
the nvhole truth ; fo that he is not to conceal any part of
what he knows, whether interrogated particularly to that point
or not. And all this evidence is to be given in open court, in
the prefence of the parties, their attorneys, the couufel, and
all by-ftanders ; and before the judge and jury ; each party
having liberty to except to it's competency, which exceptions
2re publicly dated, and by the judge are openly and publicly
allowed or difallowed, in the face of the country : which
muft curb any fecret bias or partiality, that might arife in
his own breaft. And if, either in his diretions or decifions,
he mis-ftates the law by ignorance, inadvertence, or defign,
the counfel on either fide may require him publicly to feal a
hill of exceptions ; ftating the point wherein he is fuppofed to
err : and this he is obliged to feal by ftatute Weftm. 2.
13 Edw. I. c. 31. or, if he refufes fo to do, the party may
have a compulfory, writ againft him '', commanding him to
feal it, if the fadl alleged be truly flated : and if he returns,
that the fal is untruly dated, when the cafe is otherwife, an
action will lie againft him for making a falfe return. This
bill of exceptions is in the nature of an appeal ; examinable,
not in the court out of which the record iflues for the trial
at ni/t priusy but in the next immediate fuperior court, upon a
writ of error, after judgment given in the court below. But
a demurrer to evidence fhall be determined by the court, out
of which the record is fent. This happens, where a record
or other matter is produced in evidence, concerning the legal
confequences of which there arifes a doubt in law : in which
'' Reg. Br. i8z. 2 Inft. 487.
from which a fair inference can be drawn, though alone it would
be too flight to fupport the verdidl of the jur)', yet it may corro-
borate other teftiraony, and a number of fuch prefumptions mav
become of importance. Pojfunt diverfa genera ita conjungi, ut qua
Jingula non nocerent, ea univerfa tanquam grando reum cpprimant.
Matthasus de Crim.
cafe
Ch. 23^ Wrongs* 3^i
cafe the adverfc party may if he pleafes demur to the whole
evidence ; which admits the trtith of every fal that has been
alleged, but denies the fufficiency of them all in point of law
to maintain or overthrow the iflue"^: which draws the quef-
tion of law fr^m the cognizance of the jury, to be decided
(as it ought) by the court. But neither thefe demurrers to
evidence, nor the bills of exceptions, are at prefent fo much
in ufe as formerly j fince the more frequent extenfion of the C 373 J
difcretionary powers of the court in granting a new trial,
wlilch is now very commonly had or the mifdire^tion of the
judge at nift prius.
This open examination of witnefles viva voce^ in the
^rcfetice of all mankind, is much more conducive to the
clearing up of truth **, than the private and fecret examination
taken dov/n in writing before an officer, or his clerk, in the
ccclefiaftical courts, and all others that have borrowed their
pralice from the civil law : where a witnefs may frequently
depofe that in private, which he will be afhamed to teftify in
a public and folemn tribunal* There an artful or carelefs
fcribc may make a witnefs fpeak what he never meant, by
drefling up his depofitions in his own forms and language ;
but he is here at liberty to correct and explain his meaning,
if mifunderftood, which he can never do after a written de-
pofition is once taken. Befides, the occafional queftions of
the judgej the juryj and the counfel, propounded to the
witnefles on a fudden, will fift out the truth much better
than a formal fet of interrogatories previoufly penned and
fettled : and the confronting of adverfe witnefles is alfo ano-
ther opportunity of obtaining a clear difcovery, which can
never be had upon any other method of trial. Nor is the
prefence of the judge^ during the examination, a matter of
fmall importance : for, befides the refpel and awe with
which his prefence will naturally infpire the witnefs, he is
able by ufe and experience to keep the evidence from wan-
dering from the point in iflue. In fhort by this method of
examinationi and this only, the pcrfons who are to decide
Co. LJtt. 72. 3 Rep. X04. * Hale'i Hift. C. L. 254, 5> 6. (
upon
373 Private Book IIL
upon the evidence have an opportunity of obferving the qua-
lity, age, education, underftanding, behaviour, and inclina-
tions of the witnefs ; in which points all perfons muft appear
alike, when their depofitions are reduced to writing, and
read to tiie judge, in the abfence of thofe who made them ;
and yet as much may be frequently collcdled from the man-
ner in which the evidence is delivered, as from the matter of
r 374 ] ^^' Thefe are a few of the advantages attending this, the
Englifh, way of giving teftimony, ore tenus. Which was
alfo indeed fimili-r among the antient Romans, as may be
col'efled from Quintiilian *= j who lays down very good in-
ftructions for ex.amming and crofs-examining witnefles viva
vcce. And this, or fomewhat like it, was continued as lovir
as the time of Hadrian *" : but the civil law, as it is now mo-
delled, rejeds all public examination of witnefles.
As to fuch evidence as the jury may have in their own con-
fciences, by their private knowlege of facSs, it was an antient
doclrine, that this had as much right to fway their judgment
as the written or parol evidence which is delivered in court.
And therefore it hath been often held ?, that though no proofs
hi produced on either fide, yet the jury might bring in a ver-
dict:. For the oath of the jurors, to find according to their
evidence was conftrued ^ to be, to do it according to the belt
of their own knowlege. This ftems to have arifen from the
antient pradice in taking recognitions of affife, at the firft
introdudion of that remedy; the (herifF being bound to re<
turn fuch recognitors as knew the truth of the fad, and the
recognitors, when fworn, being to retire immediately from
the bar, and bring in their verdidl according to their own pcr-
fonal knowlege, without hearing extrinfic evidence or receiv-
ing any diredtion from the judge K And the fame do(^rine
* Inftitut. Or at. l. ^. c. 7. " quae inUrroga'veras extemfore vtrlR^
' See his epiftle to Varus, the legate " mil'ia njponderintJ" (Ff. zz. 5. 3.
or juJge of Cilicia : *' ta magit fcire * Year-book, 14 Hen. VII. 2oPlowd.
*' petes, quanta jid(S ft kabenda tejlibui\ JZ. .Hob. 227. 1 Lev. 87.
* qui, et cujus dignitatis, it cujus Ofjii- ^ Vaugh. 148, 14.9.
* mationis Jint ; et, qui Jlmpliciter viji ' Brat. 1. 4. ir. i, c. 19. 7,
** Jint dicere ; utrum unum eundrmque Flctt !, 4. f . 9. 2.
** medltatum fcrmgnem attukrintf an ad ea
{when
Ch. 23. W R O N G.S. 374
(when attaints came to be extended to trials by jury, as well as
to recognitions of aflife) was alfo applied to the cafe of com-
mon jurors J that they might efcape the heavy penalties of the
attaint^ in cafe they could fliew by any additional proOf, that
their verdidl was agreeable to the truth, though not according
to the evidence produced : with which additional proof the law
prefumed they were privately acquainted, though it did not [ 375. 3
appear in court. But this doctrine was again gradually ex-
ploded, when attaints began to be difufed, and neiu trials in-
troduced in their flead. ' For it is quite incompatible with the
grounds, upon which fuch new trials are every day awarded,
uiz, that the verditl was given imthout^ or contrary tOy evi-
dence. And therefore, together with new trials, the pralice
feems to have been firfl: introduced S which now univerfally
obtains, that if a juror knows any thing of the matter in
ilTue, he may be fworn as a witnefs, and give his evidence
publicly in court.
When the evidence is gone through on both fides, the
judge in the preftncc of the parties, the counfel, and all
others, fums up the whole to the jury ; omitting all fuper-
fluous circumftances, obferving wherein the main queftioix
and principal ifluc lies, dating what evidence has been given
to fupport it, with fuch remarks as he thinks necelliiry for
their diredlion, and giving them his opinion in matters of
law arifing upon that evidence.
The jury, after the proofs are fummed up, unlefs the cafe
be very clear, withdraw from the bar to confider of their ver-
dift : and, in order to avoid intemperance and caufelefs de-
lay, are to be kept without meat, drink, fire, or candle, un-
lefs by permiflion of the judge, till they are all unanimoufly
agreed. A method of accelerating unanimity not wholly
unknown in other conftitutions of Europe, and in matters of
greater concern. For by the golden bulle of the empire ', if,
after the congrefs is opened, the eleftors delay the election of
a king of the Romans for thirty days, they (hall be fed only
* Styl. 133. 1 Sid. 133, ' ch. 2.
with
'w5 Private Book III,
with bread and water, till the fame is accompllfhed. But if
our juries eat or drink at all, or have any eatables about
them, without confent of the court, and before verdici, it is
fineable ; and if they do fo at his charge for whom they after-
wards find, it will fet afide the verdidt. Alfo if they fpeak
with either of the parties or their agents, after they are gone
- 376 3 from the bar ; or if they receive any frefli evidence in prir
vate } or if to prevent difputes they cafl; lots for whom they
IJiall find ; any of thefe circumftanccs will entirely vitiate
the verdidl. And it has been held, that if the jurors do not
agree in their verdift before the judges are about to leave the
town, though they are not tp be threatened or imprifoned ''\
the judges are not bound to wait for them, b^t may csrry
them round the circuit from town ro tx>wn in a cart ". This
ncceffity of a total unanimity feems to be peculiar to our own
conllituticn ; or, at lead, in the w/wZ-^^j or jury of the an-
tient Goths, there was required (even in criminal cafes) only
the confent of the major part ; and in cafe of an equaUty, the
defendant was held to be acquitted p (20),
" Mirr. c. 24. ao, 21.
" LiL Affol. 40. pi. I T. P Sdern. /. i. c, 4,
* See Barrington on the ftatutes -jg,
(20) The learned judge has dlfplayed much erudition in the
beginning of this chapter, to prove the antiquity of the trial by
jury ; but the trials referred to by the authors there cited, and
even the Judidum part;um, mentioned in the celebrated chapter of
magna charta^ are trials which vi'jere foijiething fimilar to that by ^
jur)', rather than inftanccs of a trial by juiy according to It's prefcnt
eftablifhed form. The judicium parium feems ftriftly the judgment of
a fubjeft's equals in the feudal courts of the king and barons.
And fo little appears to be afcertalned by antiquarians, rcfpefting
the introdufiion of the trial In criminal cafes by two juries, that,
although it is one of the moll Important, yet it is certainly one qf
the moll obfcure and hjexph'cable parts of the law of England.
The unanimity of twelve men, fo repugnant to all experience gf
^uman conduft, paflions, and underftahdlngs, could hardly jn any
age have been introduced into pradlice by a deliberate ad; of the
legiflature,
' J3ujt
Ch. C3. Wrongs. 376
When they arc all unanimoully agreed, the jury return
back to the bar ; and, before they deliver their verdid, the
plaintiff is bound to appear in court, by himfelf, attorney, or
counfcl, in order to anfwer the amercement to which by the
old law he is liable, as has been formerly mentioned "J, in
cafe he fails in his fuit, as a punifliment for his falfe claim.
To be amerced, or a tnercis, is to be at the king's mercy with
regard to the fine to be impofed : in mifericordia domini regit
pro falfo clamore fiio. The amercement is difufed, but the
form (till continues ; and if the plaintiff does not appear, no
verdict: can be given, but the plaintiff is faid to be mnfuit,
nonfeqiiJtur clamor em futtm. Therefore it is ufual for a plain-
tiff, when he or his counfel perceives that he has not given
evidence fufficient to maintain his iffue, to b? volpntarily
1 Page 275. See alfo VoI.IV. 379.
But that the life, and perhaps the liberty and property of a fub-
jcft, fliould not be aifedted by the concurring judgment of a lefs
number than twelve, where more were prefent, was a law founded
in reafon and caution ; and feems to be tranfmitted to us by the
common law, or from immemorial antiquity. The grand alfize
might have confifled of more than twelve, yet the verdict muft;
have been given by twelve or more j and if twelve did not agree, the
affize was afforced, that is, others were added till twelve did con-
cur. See I Reeves's Bi/l. of Eng. Law. 241. 480. This was a
majority and not unanimity. A grand jury may confift of any
number from twelve to twenty-three inclufive, but a prefentment
ought not to be made by lefs than tvi^elve. 2 Hqle, P. C. 1 61. The
fame is true alfo of an inquifition before the coroner. In the high
court of parliament, and the court of the lord high fteward, a peer
may be convidled by the greater number; yet there can be no
conviclion unlefs the greater number confifts at lead of twelve.
3 Injl. 30. Kelyng. 6. Moore, 622. Hence in all thefe cafes if
twelve only appeared, it followed as a neceflary confcquence, that
to aft with effedl they muft have been unanimous.
Hence this may be fuggefted as a conjedlure refpeding the
prigin of the unanimity of juries, that, as lefs than twelve, if
twelve or more were prefent, could pronounce no effcftive verdift
wheo twelve only were fworn, their unanimity became indifpen fable.
nonfuited.
37^ Private Book III:
nonfulted, or withdraw himfelf : whereupon the crier is or-
dered to ca// the plaintiff, and if neither he, nor any body for
him, appears, he is nonfuited, the jurors are dlfcharged, the
atlion is at an end, and the defendant fliall rec;iver his cofts.
The reafon of this pra6Vice is, that a nonfuit is more eligible
for the plaintiff, than a vcrdi6l agatnft him : for after a non-
fuit, which is only a default, he may commence the fame fuit
L 377 ] again for the fame caufe of aclion ; but after a verdi6l had,
and judgment confequent thereupon, he is for ever b.ured
from attacking the defendant upon the fame ground of com-
plaint. But, in cafe the plaintiff appears, the jury by their
foreman deliver in their verdil (it),
A VERDICT, vere diclum, is either privy^ or pubUc. A
privy verdil is when the jud^e hath left or adjourned the
. court : and the jury, being agreed, in order to be dehvered
from their confinement, obtaiu leave to give their verdit
privily to the judge out of court : which privy verdict is of
no force, unlefs afterwards affirmed by a public verdift given
openly in court ; wherein the jury may, if they pleafe, vary
from their privy verdil. So that the privy verdil is indeed
a mere nullity; and yet it is a dangerous pra6lice, allowing
time for the parties to tamper with the jury, and therefore
very feldom indulged (22). But the only effel:ual and legal
' If the jud^e hath adjourned the receives the verdift, it is a fui/lc and
court to his own lodgings, and there not a pri-vy verd'iiX,
\
(21) When a verdift will carry all the cofts, and it is doubtful
from the evidence for which party it will be given, it is a common
pralice for the jud^e to recommend, and the parties to confent,
that a juror {hould be withdrawn ; and thus no verdift is given,
and each party pays his own cofts.
Where there is a doubt at the trial whether the evidence pro-
duced by the plaintiff is fufRcient to fupport the verdid given
in his favour by the jury, the judge will give leave to apply to
the court above to fet afide the verdift and to enter a nonfuit ; but
if fuch liberty is not referved at the trial, the court abuve can
only grant the defendant a new trial, if they think the plaintiff's
evidence infufiicient to fupport his cafe. 6 T. R. 6j.
(22) A privy verdidl cannot be given in treafon and felony.
2 H, F. C. 30Q.
verdil
Cb. 23; Wrongs. 377
terdifl is xhtpuhllc verdil : in which they openly declare to
have found the iflue for the plaintiff, or for the defendant ;
and if for the plaintiff, they afTefs the damages alfo fullained
by the plaintiff", in confequence of the injury upon which
the alion is brought.
Sometimes, if there arifes in the cafe any difficult niat-
tcr of law, the jury for the fake of better information, and
to avoid the danger of having their verdidl attainted, will find
zfpecial verdict ; which is grounded on the ftatute Wcftm. 2i
13 Edw. I. c. ^o. 2. And herein they (late the naked
fals, 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 fliall be of opinion that the plain-
tiff had caafe of aclion, they then find for the plaintiff; if
otherwife, then for the defendant. This is entered at length
on the record, and afterwards argued and determined in the
court at Wellminfter, from whence the ilTue came to be tried.
Another method of finding a fpecies of fpecial verdict, is [ 378 j
when the jury find a vetdift generally for the plaintiff, but
fubje<Sl neverthelefs to the opinion of the judge or the court
above, on -a fpecial cafe ftated by the counfcl on both fides with
regard to a matter of law : which has this advantage over a
fpecial verdidt, that it is attended with much lefs expence
and obtains a much fpecilief decifion ; ilic ^ojtea (of which In
the next chapter) being ftayed in the hands of the officer of
nijt prius, till the queftion is determi:!edi and the verdil is
then entered for the plaintiff or defendant as the cafe may
happeoi jiut, as nothing appears upon the record but the
general vcrdift, the parties are precluded hereby from the.
benefit of a writ of error, if dilTatisfied with the judgment of
the court or judge upoft the point of law. Which makes it
a thing to be wifhcd, that a method could be devifed of
cither lefTening the expence of fpecial verdifts, or elfe of en-
tering the cafe at length upon the pojien. But in both thefe
inftanccs the juty may> if they think proper, take upon them-
felves to determine, at their own hazard, the complicated
queftion of fad and law ; and without cither fpecial verdidl
Vol. III. E c or
378 Private Book III.
or fpecial cafe, may find a verdidt abfolutely either for the
plaintiff or defendant '.
When the jury have deUvered in their verdift, and it is
recorded in court, they are then difcharged. And fo ends the
trial by jury : a trial, which befides the other vaft advan-
tages which we have occafionally obferved in it's progrefs, is
alfo as expeditious and cheap, as it is convenient, equitable,
and certain ; for a commifTion out of chancery, or the civil
law courts, for examining witnefles in one caufe will fre-
quently^ laft as long, and of courfe be full as expenfive, as
the trial of a hundred iflucs at nifi prius ; and yet the fat
cannot be determined by fuch commiffioners at all ; no, not
till the depofitions are publifiied, and read at the hearing of
the caufe in court.
[ 37P ] Upon thefe accounts the trial by jury ever has been, and I
trufl ever will be, looked upon as the glory of the Englifix
law. And, if it has fo great an advantage over others in re-
gulating civil property, how much muft that advantage be
heightened, when it is applied to criminal cafes ! But this
we mufl refer to the enfuing book of thefe commentaries :
only obferving for the prefent, that it is the moft tranfcend-
cnt privilege which any fubjedl can enjoy, or wifh for, that
he cannot be afFcled either in his property, his liberty, cr
his perfon, but by the unanimous confent of twelve of his
neighbours and equals. A conllitution, that I may venture
to affirm has, under providence, fecured the juftlibertiesof
this nation for a long fucceffion of ages. And therefore a ce-
lebrated PVench writer', who concludes, that becauie Rome,
Sparta, and Carthage have loft their liberties, therefore thofe
of England in time muft perifti, fliould have recolleled that
Rome, Sparta, and Carthage, at the time when their liberties
were loft, were ft rangers to the trial by jury.
Great as this euloglum may feem, it is no more than
this admirable conftitution, when traced to it's principles,
will be fouad in fober reafon to deferve. The impartial ad-
' Litt. 38<3. t Montefq. Sp. L. xi. 6.
miniftratlon
Ch. 23. Wrong s. 379
miniflratlon of jufllce, which fccures both our perfcns and
our properties, is the great end of civil fociety. But if that
be entirely intruded to the magidracy, a felecl body of men,
and thofe generally feleled by the prince or fuch as enjoy
the highefl oifices in the date, their decifions, in fpite of
their own natural integrity, will have frequently an involun-
tary bias towards thofe of their own rank and dignity : it is
not to be expelled from human nature, that the few fliould
be always attentive to the intereds and good of th^ niany. On
the other hand, if the power of judicature were placed at
random in the hand^ of the multitude, their decifions would
be wild and capricious, and a new rule of adlion would be
every day edablidied in our courts. It is wifely therefore
ordered, 'that the principles and axioms of law, which are
general propofitions, flowing from ab drawled reafon, and not
accommodated to times or to men, fliouId be depofited in the r ngo 1
breads of the judges, to be occafionally applied to fuch fals
as come properly afcertained before them. For here partiality
can have little fcope : the law is well known, and is the fame
for all ranks and degrees ; it follows as a regular conclufion
from the premifes of fadl pre-edablidicd. But in fettling and
adjuding a quedion of fat, v/hen intruded to any fingle ma-
gidrate, partiality and injudice have an ample field to range
in 9 either by boldly aflierting that to be proved which is not
fo, or by more artfully fupprefling fome circumdances,
ftretching and warping others, and didinguidiing away the
remainder. Here therefore a competent number of fenfiblc
and upright jurymen, chofen by lot from among thofe of the
middle rank, will be found the bed invedigators of truth,
and the fured guardians of public judicc. For the mod power-
ful individual, in the date will be cautious of committing
any flagrant invafion of another's right, when he knows that
the fa6l: of his opprefliion mud be examined and decided by
twelve indifferent men, not appointed till the hour of trial ;
and that, when once the fac\: is afcertained, the law mud of
courfe redrefs it. This therefore preferves in the hands of the
people that (hare, which they ought to have in the admini-
E e 2 ftratioa
55b P R I r A T B Book III,
ftration of public juflicc, and prevents the encroachments of
the more powerful and wealthy citizens. Evrry new tribu-
nal, erefted for the d^cifvon of fadls, without the interven-
tion of a jury, (whether eompofcd of juftices of the peace,
commiflioners of the revenue, judges of a court of confciencc,
er any other ftanding magiftratcs,) i* a ftep towards eita-
blilhing ariftocracy, the moft opprelEve of abfolute govern-
ments. The feodal fyftem, which for the fake of military
fubordination, piirfued an ariftocratical plan in all it's ar-
rangements of property, had been intolerable in times ol
peace, had it not been wifely counterpoifed by that privilege,^
fo univerfally diffufed through every part of it, the trial by
the feodal peers. And in every coun-try on the continent,
as the trial by the peers has been gradually difufed, fo the
nobles have increafed in power, till the ftate has been torn ta
pieces by rival falions, and oligarchy in effci has been efta-
blifhed, though under the (hadow of regal government ; un-
l 381 3 lefs where the miferable commons have taken fhelter under
abfolute monarchy, as the lighter evil of the two. And,
particularly, it is a circumftance well worthy an Englifh-
man's obfervation, that in Sweden the trial by }ury, that bul-
wark of northfern liberty, which continued in it's full vigour
fo lately as the middle of the laft century ", is now fallen
into difufe ^ : and that there, though the regal power is in no
country fo clofely limited, yet the liberties of the commons
arc extinguilhed, and the government is degenerated into a
mere ariflocracy *. It is therefore upon the whole, a duty
which everymanowesto his country, his friends, his pofte-
jity, and himfelf, to maintain to the utmoft of his power this^
valuable conftitution in all it's rights j to reftore it to it*s an-
tient dignity, rf at all impaired by the different value of pro-
perty, or otherwife deviated from it's firft inftitution ; to amend
jt, wherever it is d^fediive j and, above all, to guard with the
jnoft jealous circumfpe^lion againft the introduftion of new
and arbitrary methods of trial, which, under a variety of plau-
{jble pretences, may in time imperceptibly undermine this
^eft prefervativc of Englifh liberty.
% Whitclocke of pail. 41-7, * Mod. Un. Hift. xxxiii. ti. * Uid. 17-
Tet,
Ch, 23* W R o N o s. 381.
Yet, after all, it muft be owned, that the beft and mod
cffedtual method to prefervc and extend the trial by jury ia
pratflice, would be by endeavouring to remove all the defeds^
as well as to imjjrove the advantages, incident to this mode
of inquiry. If juftice is not done to the entire -fatisfadion
of the people, in this method of deciding fads, in fpite o
all encomiunas and -panegyrics on trials at the common law,
they will refort in fearch of that juftice to another tribunal 4
though more dilatory, though more expenfive, though more
arbitrary init' frame aiid conftitution. If juftice is not done
to the crown by the verdid of a jury, the neceffities of the
public revenue will call for the eredion of fummary tribunals*
The principal dcfcds fecm to be,
I . The want of a complete difcovery by the oath of the
parties. This each of them is now entitled to have, by
going through the expence and circuity of a eourt of equity, C 3^^ 3
and therefore it is fometimes had by confent, even in the
courts of law. How far fuch a mode of compulfive examina-
tion is agreeable to the rights of mankind, and ought to be
introduced in any country, may be matter of curious difcuf-
Con, but is foreign to our prefent inquiries. It has long
been introduced and eftablifhed in our courts of equity, not
to mention the civil law courts : and it fcems the height of
judicial abfurdity, that in the fame caufe, between the fame
parties, in the eicaminatlon of the fame f^s, a difcovery by
the oath of the parties (hould be permitted on one fide of
Weftminfter-hall, and denied on the other ; or that the
judges of one and the fame court (hould be bound by law to
rejed fuch a fpccies of evidence, if attempted on a trial at
bar, but, when fitting the next day as a court of equity,
ihoukl be obliged to hear fuch examination read, and to found
their decrees upon it. In fliort, within the lame country,
governed by the fame laws, fuch a mode of inquiry fhould
be univerfally admitted, or elfe univerfally rejeded.
2. A SECOND defed is of a nature foinewhat fimilar to the
6rft ; tUe want of a compulfive power for the produdion of
E c 3 books
382 Private Book III.
books and papers belonging to the parties. In the hands of
third perfons they can generally be obtained by rule of court,
or by adding a claufe of requifition to the writ of fuhpoena^
which is then called Tifuhpoena duces tecum. But, in mercan-
tile tranfaftions efpecially, the fight of the party's own books
is frequently decifive : as, the day-book of a trader, where the
tranfaftion was recently entered, as really underftood at the
time ; though fubfequent events may tempt him to give it a
different colour. And, as this evidence may be finally
obtained, and produced on a trial at law, by the circuitous
courfe of filing a bill in equity, the want of an original
power -for the fame purpofes in the courts of law is liable
to the fame obfervations as were made on the preceding
article (23).
3. Another want Is that of powers to examine witneiTts
abroad, and to receive their depofitions in writing, where t1ie
L 3"3 J witneffes refide, and efpecially when the caufe of adtion arifes
in a foreign country. To which may be added the power of
examining witneffes that are aged, or going abroad, upon in-
terrogatories debcfie ejfc i to be read in evidence if the trial
fliould be deferred till after their death or departure, but
ctherwife to be totally fupprefled. Both thefe are now very
frequently effected by mutual confent, if the parties are open
and candid ; and they may alfo be done indiredUy at any
(23) Where one party is in pofTeffion of papers or any fpecics
of written evidence material to the other, if notice is given him to
produce them at the trial, upon his ix'fufal Gopies of them will be
admitted; or if no copy has been made, any parol evidence
of their contents will be received. The court and jury pre-
fume in favour of fuch evidence ; becaufe, if it were not agree-
able to the ftrict truth, it would be corretted by the produftion
f the originals. There is no difference with refpeft to tliTs
fpecies of evidence between criminal and civil cafes. 2 7*,
R. ioi.
time*
Ch. 23. Wrong s. 383
time, through the chartnel of a court of equity : but fuch a
pralice has never yet been direlly adopted ^ as the rule of a
court of law (24). Yet where the caufe of a6tlou arifes in
India, and a fuit is brought thereupon in any of the king's
courts at Weltminller, the court may iflue a commiflion to
examine witncfles upon the fpot, and tranfmit the depofi-
tions to England ^,
4. The adminiflration of juftice (hould not only be chafte,
but (hould not even be fufpedled. A jury coming from the
neighbourhood has in forae refpets a great advantage ; but
is often liable to ftrong objelions : efpecially in fmall jurif-
diclions, as in cities which are counties of themfelves, and
fuch where affifes are but feldom holden; or where the
queftion in difpute has an extenfive local tendency j where a
cry has been raifed, and the paflions of the multitude been in-
flamed ; or where one of the parties is popular, and the other
a ftranger or obnoxious. It is true that, if a whole county is
intereiled in the queftion to be tried, the trial by the rule of
law " muft be in fome adjoining county: but, as there may be
a ftriQ intereft fo minute as not to occafion any bias, fo there
may be the ftrongeft bias without any pecuniary intereft. In
all thefe cafes, to fuxnmon a jury, labouring under local pre-
judices, is laying a fnare for their confciences: and, though
they Ihould have virtue and vigour of mind fufficient to keep
them upright, the parties will grow fufpicious, and refort
under various pretences to another mode of trial. The courts
of law will therefore in tratifiiory actions very often change the
venue, or county wherein the caufe is to be tried **: but in local
^iftions, though they fometimes do it indiredlly and by mutual [ 384 ]
y See page 75, Stra. 177.
'' S.at. I j Geo. III. c. 63. '' See page 294.
(24) A court can compel the plalntliF to confent to have a wit-
ncfs going abroad examined upon interrogatories, or to have an
abfcnt witncfy examined under a comminion, by the power the
judges have of putting off the trial; but they have no control in
thefe inllaiices over the defendant.
e 4 confcnty
3^4 Private Book III,
confent, yet to efFcl it directly and abfolutely, the parties
are driven to a court of equity \ where, upon making out a
proper cafe, it is done upon the ground of being neceffary to
a fair, impartial, and fatisfalt)ry trial '^.
The locality of trial required by the common law feemj
a confequence of the antient locality of jurifdiclion. All over
the world, alions tranfitory follow the perfon of the de-
fendant, territorial fuits muft be difcufled in the territorial
tribunal. I may fue a Frenchman here for a debt contral
ed abroad ; but lands lying in France muft be fued for there,
and Englifh lands muft be fued for in the kingdom of Eng^
land. Formerly they were ufually demanded only in the
court-baron of the manor, where the fteward could fummot^
no jurors but fuch as were the tenants of the lord. When the
caufe was removed to the hundred court, (as feems to have
been the courfe in the Saxon times'*,) the lord of the hundred
had a farther power, to convoke the inhabitants of different
vills to form a jury; pbferving probably always to intermix
among them a ftated number pf tenants of that manor where-
in the difpute arore. When afterwards it came to the countv
court, the great tribunal of Saxon juftice, the IherifFhad wider
authority, and could impanel a jury from the men of his county
at large: but was obliged (as a mark of the original locality
pf the caufe) to return a competent number of hundredorsj
omitting the inferior diftindion, if indeed it ever exifted. And
when at length, after the conqueft, the king's jufticiars drew
the cognizance of the caufe from the county court, though
they could have fummoned a jury from any part of the king-
dom, yet they chofe to take the caufe as they found it, with
all it's local appendages ; triable by a ftated number of hun-
dredors, mixed with other freeholders of the county. The
reftriiiion as to hundredors hath gradually worn away, an4
at length entirely vaniftied'j that of counties ftill remains,
< This among a number of other in- miners of the county of Derby, yi D.
ftanccs, was the cafe of the ilfues di- 1761.
refted by the houfe of lords in the caufe LL. Edic. Cotif. c. 32. WiJk.aoj,
tetwccn the Duke of Devonlhire and the See pag. 360,
for
Ch. 2j. Wrong s; 385
for many beneficial purpofes : but, as the king's courts have
a jurifdiclion co-extenfive with the kingdom, there furely can
be no impropriety in fometimes departing from the general
rule, when the great ends of juftice warrant and require an
exception.
I HAVE ventured to mark thefe defefts, that the juft pane-
gyric, which I have given on the trial by jury, might appear
to be the rcfult of fober refledlion, and not of enthufiafm or
prejudice. But (hould they, after all, continue unremedied
and unfupplicd, dill (with all it's imperfedlions) I trufl that
this mode of decifion will be found the bed criterion, for in-
yeft 'gating the truth of fa^$i that was ever eitabliihed ia
jjtny country.
^85
Private Book III,
CHAPTER THE TWENTY-FOURTH,
QF JUDGMENT, AND it's
INCIDENTS.
IN the prefcnt chapter we are to confider the tranfalians
in a caufe, next immediately fubfequent to arguing the
demurrer, or trial of the iflue.
If the iflue be an iflue of fact ; and, upon trial by any of
the methods mentioned in the two preceding chapters, it be
found for either the plaintifl^ or defendant, or fpecially ; or
if the plaintiff^ makes default, or is nonfuit ; or whatever, in
{hort, is done fubfequent to the joining of iflue and awarding
the trial, it is entered on record, and is called a pojlea ^. The
fubfl:ance of which is, that/2/?ra, afterivardsy the faid plain-
tiff and defendant appeared by their attornies at the place of
trial; and a jury, being fworn, found fuch a verdidt ; or,
that the plaintifl" after the jury fworn made default, and did
not proft cute his fuit ; or, as the cafe may happen. This is
added to the roll, which is now returned to the court from
which it was fent ; and the hiftory of the caufe, from the
time it was carried out, is thus continued by the pojlea.
Next follows, fixthly, the judgment of the court upon
what has previoufly pafl~ed -, both the matter of law and mat-
ter of fal being now fully weighed and adjufted. Judgment
^ 387 ] may however for certain caufes hcfufpendedi or finally drrcjlcd;
Append. N II. 6.
8 for
Ch. 24. Wrongs. 387.
for it cannot be entered till the next term after trial had, and
that upon notice to the other party. So that if any defel of
juftice happened at the trial, by furprize, inadvertence, or
mifcondul, the party may have relief in the court above, by
obtaining a new trial ; or if, notwithftanding the ifiue of
fal be regularly decided, it appears that the complaint was
either not alionable in itfcif, or not made with fufficient
precifion and accuracy, the party may fuperfede it, by ar-
refting or Haying the judgment.
I. Causes oi fufpendlng the judgment by granting a new
trials are at prefcnt wholly extrinjtc, arifing from matter fo-
reign to or dehors the record. Of this fort are want of notice
of trial ; or any flagrant misbehaviour of the party prevailing
towards the jury, which may have influenced their verdlcl j
or any grofs mifbehaviour of the jury among themfeives ;
alfo if it appears by the judge's report, certified to the court,
that the jury have brought in a verdict without or contrary
to evidence, fo that he is reafonably difl^.uisfied therewith^;
or if they have given exorbitant damages 'j or if the judge
himfelf has mif-dire<?\ed the jury, fo that they found an un-
juftifiable verdil ; for thefe, and other reafons of the like
kind, it is the pra6lice of the court to award a iwiv^ or fe-
cond, trial. But if two juries agree in the fame or a fimilar
verdict, a third trial is feldom awarded ^ : for the law will
not readily fuppofe, that the verdidl: of any one fubfequent
jury can countervail the oaths of the two preceding ones (ij,
'' Law of ^/>nHJ, 303,4,. '' 6 Mod. 22. Salk. 649.
s Cotob. 357.
( I ) If the verdict of the jury be agreeable to equity and juftice,
the court will not grant a new trial, though there may have been
an error in the admiflion of evidence or in the direction of the
judge. 4 T. R. 468.
And it v.'ill not be granted merely becaufc it has been difco-
vertd after the trial, that a witnefs examined was incompetent.
I T. R. 717. Nor will it be granted on the ground of evidence
fuppofcd to have been difcovered after the trial. And when the
clalntifF recover* a verdidt agaiafl. the defendant, the defendant
cannot
387 Private Bock III.
The exertion of thefe fuperintendent powers of the king's
courts, ifi fetting afide the verdil of a jury and granting a
new trial, on account of mifbehaviour in the jurors, is of a
date extremely antient. There are inftances, in the year
books of the reigns of Edward III.*, Henry IV /, and Henry
VII. ^, of judgments being flayed (even after atrial at bar) and
f 3^^ ] new venire's awarded, becaufe the jury had eatanddrank with-
out confentof the judge, andbecaufe thepiaintifFhadprivately
14 Edw, III. 24. Brp. rffSr . t. ver' queji. 7 5.
ie. 17. * 14 ii:n. l^Il. I Bro. Ahr. t. ver-.
f II I-Ien. ly. 18. Bro. Jbr. t. en- dite. 18.
cannot become plaintiff in another aftion brought to recover back
what he was obliged to pay by the former verdict, becaufe he was
not prepared with his evidence at the trial, as this vpould lead to
cndlefs litigation. 7 T. R. 26c). But excelTive damages in all cafes,
except in an a<ftion for adultery, are a fufficient ground to grant a
new trial. 5 T. R. 257. But where a new trial is granted upon
that ground, the court will diredl that thejformcr verditl fhall
lland as a fecurity for the damages given on the fecond trial.
The court will grant any number of new trials in the fame
aftion, if the jury find verdifts contrary to the eflablifhed law.
A new trial may be granted on account of the mifconduft of the
jury, as if they have referred to chance to determine the party for
whom the verdift was given. But the courts will not hear any
affidavit of fuch condu-fl from the jury themfelves. i T. R. 11.
It is generally faid, that there cannot be a new trial in penal aftiona
and criminal profecutions, when there is a verdictfor the defendant.
The principle of this being the great favour which the law
fhews to the liberty of the fubjeft. But the rule does not extend
to informations in the nature of quo warranto; as the obje<Sl of
thefe is now in general to try a right and not to punlfh an offence.
? T. R. 484.. Nor does it extend to an aftion upon a penal ftatute,
;n which a verdidl is given for the defendant in confequence of thiC
mifdiiaion of the judge.. 4 T. R. 755.
In offences greater than mifderaeanors a new trial cannot be
granted. In mifdemeanors, if the indjclment is againfl feveral,
and fome are acquitted and fome convifted, the court can grant a
new trial againll thofe only who are convifted. 7 T. R. 638.
If an IfTue is direfted by a court of equity, the motion for anew
trial mufl be made before that court,
givea
Cfi. 24. Wrongs. 388
given a paper to a juryman before he was fwrorn. And upon
thefc the chief jurtice, Glynn, in 1655, grounded the firft
precedent that isreported in our books'* for granting a new
trial upon account of excejjtve damages given by the jury :
apprehending with reafoii, that notorious partiality in the
jurors was a principal fpecies of mifbehaviour. A few years
befor-?, a pra<ilicc took rife in the common pleas*, of grant-
ing new trials upon the mere certificate of the judge, (un-
fortified by any report of the evidence), that the verdi6l had
pafled againft his opinion} though chief juftice Rolle (who
allowed of new trials in cafe of mifbehaviour, furprize. or
fraud, or if the verdift was notorioufly contrary to evidence'')
refufed to adopt that pralice in the tourt of king's-bench.
And at that time it was clearly held for law ', that whatever
matter was of force to avoid a verdift, ought to be returned
upon the pojieoy and not merely furmifed by the court ; left
pofterity fliould wonder why a new venire was awarded, with-
out any fufficient reafon appearing upon the record. But
very early in the reign of Charles the fecond new trials were
granted upon fl^Ja-ui/j- * ; and the former ftrilnefs of the
courts of law, in refpecl of new trials, having driven many
parties into courts of equity to be relieved from oppreflive
Terdils, they are now more liberal in granting them : the
maxim at prefent adopted being this, that (in all cafos of
moment) where juftice is not done upon one trial, the in-
jured party is entitled to another".
Formerly the principal remedy, for reverfal of a verdll
unduly given, was by writ of attaint; of which we fhall fpeak
in the next chapter, and which is at leaft as old as the in-
ftitution of the grand aflife by Henry II. ", in lieu of the Nor-
man trial by battle. Such a fandlion was probably thought
* Styl. 46. 6, I Erownl. 107.
' Ibid. 138. 1 Sid. 235. 2 Lev. 140.
* Z Sid. 235. %ty\.praB. Reg, 310, ' 4 Burr. 395.
311. tdit. 1657. Ipfi regait inJUtutieff; thganter litm
^ Cro. Eliz. 616. Palm. 325. ftrtut (QUnv. /. 2. r. 19.)
5 nccefTary,
389 P R I V A T E Book IIL
neceffary, when, inftead of appealing to Providence for the
decifion of a dubious right, it was referred to the oath of
fallible or perhaps corrupted men. Our anceftors faw, that
a jury nii^ht give an erroneous verdidl , and, if they did,
that it ought not finally to conclude the queftion in the firfl
inftance : but the ren-.cdy, which th<y provided, (hews the
ignorance and ferocity of the times, and the fimplicity of the
points then ufually litigated in the .courts of juftice. They
fnppofcd that, the law being told to the jury by the judge,
the proof of facl mud be always fo clear, that, if they found
a wrong verditt, they muft be wilfully and corruptly per-
jured. Whereas a juror may find a jufl verdict from un-
lighteous motives, which can only be known to the great
fearcher of hearts : and he may, on the contrary, find a ver-
dict very manifcflly wrong, without any bad motive at all j
from inexperience in bufinefs, incapacity, mifapprehenfion,
inattention to cirrumftances, and a thoufand other innocent
caufes. But fuch a remedy as this laid the injured party un-
der an infuperable hardfhip, by making a conviiflion of the
jurors for perjury the condition of his redrefs.
The judges faw this; and therefore very early, even upon
Tt^rits of afTizc, they devifed a great variety of diftinftions ;
by which an attaint might be avoided, and the verdidl fet to
rights in a more temperate and difpaflionate method p. Thus
if exceflive damages were given, they were moderated by the
difcretionof thejuftices''. And if, either in that, or in any
other inftance, juftiee was not completfr-ly done, through the
error of either the judge or the recognitors, it was remedied
bv certijicate cfajftze) which was neither more nor lefs than a.
fecond trial of the fame caufe by the fame jury^ And, in
mixed or perfonal anions, as trefpafs and the like, (wherein
ho attaint originally lay,) if the jury gave a wrong vcrdii,
the judges did not think themfelves warranted thereby to
pronounce an iniquitous judgment ; but amended it, if pof-
fible, by fubfequent inquiries of their own; and, if that
V Braft. 1. 4. tr. 5. c. 4. " Ibid. tr. 5. c, 6. a, F. N. B. i8r.
% Ih'id, tr. I. (, 19. \%% a InA. 4i5<
could.
Ch. 24. Wrong a. 390
could not be, they referred It to another examuiation *
When afterwards attaints, by feveral ftatutes, were more
univerfally extended, the judges frequently, even for the mif-
behaviour of jurymen, inllead of profecuting the writ of at-
taint, awarded a fecond trial : and fubfequent refolutions,
for more than a century pad, have fo amplified the benefit of
this remedy, that the attaint is now as obfelete as the trial by
battel which it fucceeded : and we fhall probably fee the i|i-
vival of the one as foon as the revival of the other. And
here I cannot but again admire ' the wifdom of fuffering
time to bring to perfedion new remedies, more eafy and be-
neficial to the fubjed ; which, by degrees, from the expe-
rience and approbation of the people, fuperfede the necef-
fity or defire of ufing or continuing the old.
If every vcrdift was finalin the firft Inftance, it would
tend to deftroy this valuable method of trial, and would drive
away all caufes of confequcnce to be decided according to
the forms of the imperial law, upon depofitions in writ-*
ing ; which might be reviewed in a courfe of appeal. Caufes
of great importance, titles to land, and large queftions of
commercial property, come often to be tried by a jury,merely
upon the general iflue : where the faiSls are complicated and
intricate, the evidence of great length and variety, and fome-
times contradidling each other ; and where the nature of the
difpute very frequently introduces nice queftions and fubtil-
ties of law. Either party may be furprized by a piece of
evidence, which (had he known of it's production) he could
have explained or anfwercd ; or may be puzzled by a legal
loubt, which a little recollection would have folved. In the
hurry of a trial the ableft judge may miftake the law,andmif-
dirC^ the jury ; he may not be able fo to ftate and range the
evidence as to lay it clearly before them, nor to take oiF the
Si juratoret trraverirt, etjujliciarlt ninai',:S(f>t' Si autem dijudkare nefciant^
Jccundum eorum diSlum judicium fronun, recurrendum tm ^d tKojus judidum.
tiavtrintf falfamfaciunt pronuntiationtm ^ BraQ. I. 4. ir. 5. c. 4. ^ Zt
et idtofiqui titn dehcnt eorum diS!um, fed * See pag, 268.
iJlitd mcidare ttncntur per diitgentem (x
artful
39 i* R I V A T z Book IIL
artful impreffions which have been made on their minds hf
learned and experienced advocates. The jury are to give theit
r 291 ] opinion injianter; that is, before they feparate, eat, or drink.
And under thefe circumftances the mod intelligent and beft
jntentioned men may bring in a verdift, which they them-
fclvcs upon cool deliberation would wifli to rcverfe.
Next to doing right, the great objeft in the adminiftra-
tion of public juftice fhould be to give public fatisfaclion. If
the verdi6l be liable to many objtdlions and doubts irt the
opinion of his counfel, or even in the opinion of by-ftanders,
no party would go away fatisfied unlefs he had a profpei: of
reviewing it. Such doubts would with him be dccifive : he
would arraign the determinajtion as manifeftly unjufl ; and
abhor a tribunal which he imagined had done him an injury
without a pof&bility of redrefs.
Granting a new trial, under proper regulations, cures^
all thefe inconveniences, and at the fame time preferves entire
and renders pcrfel: that moft excellent method of decifion,
which is the glory of the Englifti law. A new trial is a re-
hearing of the caufe before another jury ; but with as little
prejudice to either party, as if it had never been heard before^
No advantage is taken of the former verdil on the one fide,
car the rule of court for awarding fuch fecond trial on the
other : and the fubfequent verdidt, though contrary to the
firft, imports no title of blame upon the former jury;
who, had they poflefled the fame lights and advantages,
would probably have altered their own opinion. The parties
come better informed, the counfel better prepared, the law is
more fully underftood, the judge is more malter of the fub-
jeft } and nothing is now tried but the real merits of the ca^/f,'
A SUFFICIENT ground r^ft hn^gver be laid before the
court, to fatisfy them tW, \^ ^g neceffary to juftice that the
caufe Oiouid \;^ l^^t\^r confidered. If the matter be fuch,
as did not or could not appear to the judge who prefided at
nift ^riusj it is difelofcd to the court by tiffidavit : if it arifc*
iron*
Ch. 24. Wrongs. 391
from what pafled at the trial, it is taken from the judge's
information ; who ufually makes a fpecial and minute report
of the evidence. Counfel are heard on both fides to impeach
oreftabhflitheverdift, and the court give theirreafons at large C 392 J
why a new examination ought or ought not to be allowed.
The true import of the evidence is duly weighed, falfe co-
lours are taken off, and all points of law which arofe at the
trial are upon full deliberation clearly explained and fettled.
Nor do the courts lend too eafy an ear to every application
for a review of the former verdil. They muft be fatisfied,
that there are ftrong probable grounds to fuppofe that the
merits have not been fairly and fully difcufied, and that the
decifion is not agreeable to the juflice and truth of the cafe.
A nev/ trial is not granted, where the value is too inconfider-
able to merit a fecond examination. It is not granted upon
nice and formal objelions, vvhich do not go to the real me-
rits. It is not granted in cafes of ftrifl right ox fummum jusy
where the rigorous exaftion of extreme legal juftice is hardly
reconcileable to confcience. Nor is it granted where the fcales
of evidence hang nearly equal: that, which leans againft the
former verdidl, ought always very flrongly to preponderate.
In granting fuch farther trial (which is matter of found
difcretion) the court has alfo an opportunity, which it fel-
dom fails to improve, of fupplying thofedefedls in this mode
of trial which were ftated in the preceding chapter; by laying
the party applying under all fuch equitable terms, as his an-
tagonifl: lliall defire and mutually offer to comply with: fuch
as the difcovcry of fome fafts upon oath ; the admiffion of
others, not intended to be litigated ; the production of deeds,
books, and papers; the examination of witneffts, ^ infirm or
goin^ beyond fea ; and the like. And the delay and expenfe
of this proceeding are fo fmall and trifling, that it feldom can
be moved for to gain time or to gratify humour. The motion
muft be made within the firft four days of the next fucceeding
term, within which term it is ufuaily heard and decided.
And it is worthy obfervation, how irifinitcly fuperior to all
others the trial by jury approves itfelf, even in the very mode
of it's revifion. In every other country of Europe, and in
Vol. III. Ff thofe
jgl Private Bqok III.
thofe of our own tribunals which conform themfelves to the
[ 393 3 procefs of the civil lav/, the parties are at liberty, whenever
they plealc, to appeal fronri day to day and from court to
court upon queftions merely of fat ; v^hich is a perpttual
fource of obftxnate chicane, delay, and expenfive litigation^
"With us no new trial is allowed, uniefs there be a manifeft
miftake, and the fubjeft matter be worthy of interpofition.
The party who thinks himfelf aggrieved, may ftill, if he
pleafes, have recourfe to his writ of attaint after judgment ;
in ilie courfe of the trial he may demur to the evidence,
or tender a bill of exceptions. And, if the firft is totally laid
afide, and the other two very feldom put in pra<E>ice, it is
becaufe iong experience has fliewn, that a motion for a fe-
cpnd trial is the fhorteft, cheapeft, and moft effedlual cure
for all imperfetion3 in the verdil : whether they arifc from
the miftakes of the parties themfelves, of their counfel or
attornies, or even of the judge or jury.
2. Arrests of judgment arife from intriu/ic caufes, ap-
pearing upon the face of the record. Of this kind are, firlt,
where the declaration varies totally from the original writ; as
where the writ is in debt or detinue, and the plaintiff declares
\ in an"ation on the cafe for an ajfutvpfit : for, the original
writ out of chancery being the foundation and warrant of the
whole proceedings in the common pleas, if the declaration
r does not purfue the nature of the writ, the court's authority
totally fails. Alfo, fecondly, where the verdidl materially
differs from the pleadings and iffue thereon ; as if, in an
aiTtion for words, it is hid in the declaration that the defend-
ant faid, '* the plnintiffzV a bankrupt ;" and the verdift finds
fpecially that he faid, " the planitiff ivill be a bankrupt." Or,
thirdly, if the cafe laid in the declaration is not fufficient in
point of law to found an aclion upon. And this is an inva-
" Not many years a;;o an app?ai was admit) was finally deiermineJ in April
brought to the houfe of lords from the 1749 : the queftion being only on the
courc of feflion in Scotland, in a caufe property in an ox, adjudged to be of the
between Napier and Macfatlane. it value o three guineas. No pique or
Wai inftituted in March 1745; and fpirit could have made fuch a caufe, in
(after many interlocutory or!ers and fen- the court of king's bench or common
fences below, appealed from and xeheard pleas, have lafted a tenth of the time, or
fra3 the courfe of proceedings would have cpft a twentieth part of ihsexpenfc. ,
\X liablel
Ch. 24. Wrong s. 394.
riable rule with regard to arrefts of judgment upon matter of
law, ** that whatever is alleged in arreft of judgment muft be
** fuch matter, as would upon demurrer have been fufficicnt
** to overturn the alion or plea." As if, on an alion for
flandtr in calling the plaintiff a Jew, the defendant denies
the words, and ilTue is joined thereon ; now, if a verdi(l be
found for the plaintiff, that the words were adlualiy fpoken,
whereby the fai is eftablifhed, ftill the defendant may move
in arreft of judgment, that to call a man a Jew is not alion-
able : and, if the court be of that opinion, the judgment
(hall be arrcfted, and never entered for the plaintiff. But the
rule will not hold e converfoy " that every thing that may be
** alleged as caufe of demurrer will be good in arreft of judg-
** ment :" for if a declaration or plea omits to ftate fome par-
ticular circumftance, without proving of which, at the trial,
it is impoffible to fupport the alion or defence, this omiffion
(hall be aided by a verdiV. As if, in an aftion of trefpafs, the
declaration doth not allege that the trefpafs was committed
on any certain day^; or if the defendant juftifies, by prefcrib-
ing for a right of common for his cattle, and does not plead
that his cattle were levant and couchatit on the land ^\ though
either of thefe defefts might be good caufe to demur to the
declaration or plea, yet if the adverfe party omits to take ad-
vantage of fuch omifiion in due time, but takes iffue, and
has a verdidl: agaiuft him, thefe exceptions cannot after ver-
dict be moved in arrcil of judgment. For the verdidl afcer-
tains tliore fals, which before from the inaccuracy of the
pleadings might be dubioua ; lince the law will not fuppofe*
that a jury under the infpeftion of a judge would find a ver-
dict for the plaintiff or defendant, unlefs he had proved thofe
circumftances, without which his general allegation is defec-
tive y. Exceptions therefore, that are moved in arreft of
judgment, muft be much more material and glaring (h.m
fuch as will maintain a demurrer: or, in other words, many
inaccuracies and omiffions, which would be fatal, if early
obferved, are cured by a fubfequent verdict; and not fuffered>^
in the laft ftage of a caufe, to unravel the whole proceedings,
Cai(h. 3S9. " Cro. J*c. -54, 1 i Mod. 191,
F f z put
395 Private Book III,
But if the thing omitted be eflential to the aftion or de-
fence, as if the plaintiff does not merely ftate his title in a
defedtive manner, but fets forth a title that is totally defec-
tive in itfelf % or if to an alion of debt the defendant pleads
not guilty inftead of nil debet *, thefe cannot be cared by a
verdil for the plaintiff in the firfl cafe, or for the defend-
ant in the fecond.
If, by the mifconduft or inadvertence of the pleaders, the
iffue be joined on a faft totally immaterial, or infufficient to
determine the right, fo that the court upon the finding can-
not knovi^ for whom judgment ought to be given ; as if, in an
alion on the cafe in ajfumpftt ^gzxw^ an executor, he pleads
that he himfelf (inftead of the teftator) made no fuch pro-
mife ^ : or if, in an alion of debt on bond conditioned to pay
money on or before a certain day, the defendant pleads pay-
ment on the day "^ , (which iffue, if found for the plaintiff, would
be inconclufive, as the money might have been paid before; ) in
thefe cafes the court will after verdidt award a repleader^ qucd
partes replacitent : unlefs it appears from the whole record
that nothing material can poffibly be pleaded in any fhape
whatfoever, and then a repleader would be frultlefs''. And,
whenever a repleader is granted, the pleadings muft begin de
novo at that ftage of them, whether it be the plea, replica-
tion, or rejoinder, (sfc. wherein there appears to have been
the firfl defel, or deviation from the regular courfe '.
If judgment is not by fome of thefe means arrefted within
the firft four days of the next term after the trial, it is then to
be entered on the roll or record (2). Judgments are the fen-
zSalk. 365. eStra. 994.
Cro. Iliz. 778. ** 4 Burr. 301, 30*.
a Ventr. 196. " Raym. 458. Salk. 579.
,(2) A motion in arreft of judgment may be made at any time
before judgment is actually entered up. Doug. 74.6. Where
judgment is arrefted each party pays his own cgfts. Co<wp. 407.
If a verdift is taken generally with entile damages, judgment
may be arrefted if any one count in the declaration is bad ; but if
there is a general verdift of guilty upon an indiftment confifting of
feveral counts, and any one couat is good, that is held to be
fufikient. JDoug. 730.
tencc
Ch, 24. Wrongs. 395
tence of the law, pronounced by the court upon the matter ^
contained in the record ; and are of four forts. Fird, where
the fals arc confeffed by the parties, and the law determined
by the court; as in cafe of judgment upon demurrer : fecond-
ly, where the law is admitted by the parties, and the fats "^
"difputed J as in cafe of judgment on a verdiB : thirdly, where
both the fal and the law arifing thereon are admitted by the [ 396 3
defendant J which is the cafe of judgments by ccnfejfion or
default : or, lallly, where the plaintiff is convinced that either
fal: or law, or both, are infufficicnt to fupport his adlion,
and therefore ab andons or withdraws his profecution -, which
is the cafe in judgments upon a nonfuit or retraxit.
The judgment, though pronounced or awarded by the
judges, is not their determination or fentence, but the de-
termination and fentence of the laiv. It is the conclufion
that naturally and regularly follows from the premifes of law
and fa61:, which (land thus : againft him, who hath rode
over my corn, I may recover damages by law ; but A. hath
rode over my corn ; therefore I fliall recover damages againft
A. If the major propofition be denied, this is a demurrer in
law : if the minor, it is then an ifiue of facl : but if both
be confeflcd (or determined) to be right, the conclufion or
judgment of the court cannot but follow. Which judgment
or conclufion depends not therefore on the arbitrary caprice
of the judge, but on the fettled and invariable principles of
juftice. The judgment, in (hort, is the remedy prefcribed
by law for the redrefs of injuries; and the fuit or adlioa is
the vehicle or means of adminiftering it. What that remedy
may be, is indeed the refult of deliberation and ftudy to point ,
out, and therefore the flile of the judgment is, not that it is
decreed or refolved by the court, for then the judgment
might appear to be their own: but, ** it is confidercd," cou'
' Jtderatum ejl per curiam, that the j)IaintifFdo recover his da-
mages, his debt, his poflelfion, and the like : which implies
that the judgment is none of their own ; but the al of law,
pronounced and declared by the court, after due deliberation
and inquiry.
F f 3 All
39^ Private Book HI,
All thefe fpecies of judgments are either interlocutory or
^nal. Interlocutory jxidgmems are fuch as are given in the
middle of a caufe, upon fome plea, proceeding, or default,
which is only intermediate, and does not finally determine or
complete the fuit. Of this nature are all judgments tor the
plaintiff upon picas in abatement of the fuit or adlion : in
E 397 ] which it is confiJcred by the court, that the defendant do
anfwer over, refpondeat otijier -, that is, put in a more fub-
ftantial plea ^ It is eafy to obf^rve, that the judgment here
given is not final, but merely interlocutory ; for there are
afterwards farther proceedings to* be liad, whgn the defend-
ant hath put in a better anfwer.
But the interlocutory judgments, mod ufually fpoken of,
are thofe incomplete judgments, whereby the right of the
plaintiff is indeed eftablifhed, but the quantum of damages
fuftained by him is not afcertained ; which is a matter that
cannot be none without the intervention of a jury. As by
the old Gothic conditution the caufe was not completely
finiflied, till the nembda or jurors were called in ''* ad cxecutio-
" fieni decretorutnjudicii, ad aejlitnationetn pretii, dam/ii, luaif
*' i5f 8." This can only happen where the plaint iff recovers;
for, when judgment is giyen for the defendant, it is always
complete as well as final. And this happens, in the firft
place, where the defendant fufiers judgment to go againfl:
Jiim by default, or nihil dicit ; as if he puts in no plea at all
to the plaintiff's declaration: by confe^lion or cognovit aElio-
nenii where he acknowkges the plaintiff's demand ^o be ju(t :
or by nonfum informatus^ when the defendant's attorney de-
clares he has no inftrulions to fay any thitvg in anfwc:r to the
plaintiff, or in d<:-fence of his client : which is a fpecies of
judgment by default. |f thefe, or any of them, happen in
aftions where the fpecific thing fued for is recovered, as in
.Aliens of debt for a fum certain, the judgment is abfolutely
complete. And therefore it is very ufuai, in order to ftrengthen
a creditor's fecurity, for the debtor to execute a warrant qf
attorney tofpme attorney n^imed by the creditor, empowering
bim to confefs a judgment by either of the ways juft now men-
' Z Saund. 30. * Stierohook, deJurcCetb. t- 1. c- 4-
tione<i|
Ch. 24. Wrongs. 397
tioned (by nihil dicity cognovit aBionem, or nonfum informatus )
in an alion of debt to be brought by the creditor againft the
debtor for the fpecific fum due : which judgment, when con-
fefled, is abfolutely complete and binding (3); provided the
fame (as is alfo required in all other judgments) be regularly
docquettedy that is, abftraled and entered in a book, accord-
ing to the direflions of ilatute 4 & 5 W. & M. c. 20, But, [ 398 ]
where damages are to be recovered, a jury muft be called in
to afTcfs them; unlefs the defendant, to fave charges, will
confefs the whole damages laid in the declaration : otherwife
the entry of the judgment is, " that the plaintiff ought to re-
** cover his damages, (indefinitely,) but becauft; the court
** know not what damages the faid plaintiff hath fuRained,
* therefore the flieriff is commanded, that by the oaths of
** twelve honed and lawful men he inquire into the faid da-
*' mages, and return fuch inquifition into court." This pro-
(3) The perfon to whom this warrant of attorney iz given has
all the benefit of a judgment and execution againft the debtor's
perfon and property, without being delayed by any intermediate
procefs, as in the cafe of a regular fuit. It is frequently given by
a perfon arrefted upon condition of his dlfcharge, and that longer
time fhall be allowed him for the payment of the debt, or that
fome other indulgence fhall be fliewn him. But to prevent perfons
in this fituation from being impofed upon, no warrant of attorney to
confefs a judgment, given by a perfon arrefted upon mefne procefs,
Ihall be of any force, unlefs fome attorney be prefent on behalf of
the perfon in cuftody, who (hall explain the nature of the warrant,
and fubfcribc his name as a witnefs to it. i Cromp. Prac. 316.
If a warrant of attorney to confefs a judgment is given uncon-
ditionally, or without delay of execution, judgment may be figned
and execution may be taken out upon the fame day it is. given ;
and thus a debtor may give one creditor a preference to another,
who has obtained judgment after a long litigation. 5 T. R. 235. .
But if judgment is not entered within a year, the plaintiff" muft
move the court for leave to enter up judgment upon an affidavit,
ftating, that the warrant has been duly executed, that the debt is
unfatisfied, and that the party was living a fliort time before.
I Cromp. Prac, ^16.
F f 4 cefe
398 Private Book III.
cefs is called a writ of inquiry : in the execiitidn of which the
fherifF fits as judge, and fries by a jury, fubje<Sl to nearly the
fame law and conditions as the trial by jury at nifi prius, what
damages the plaintiff hath really fuftained ; and when their
verdict is given, which mud li^ch fome damages, the (heriff
returns the inquifitlon, which is entered upon the roll in
^ manner of tl pojlea ; and thereupon it is confidered, that the
plaintiffdo recover the exak fum of the damages fo aflefled.
. In tike manner, when a demurrer is determined for the plaintiff
upon an alion wherein damages are recovered, the judgment
is alfo incomplete, without the aid of a writ of inquiry (4).
Final judgments are fuch as at once put an end to the
a6lion, by declaring that the plaintiff has either entitled
himfelf, or has not, to recover the remedy he fues for. In
which cafe, if the judgment be for the plaintiff, it is alfo con-
fidered that the defendant be either amerced, for his wilful
delay of juflice in not immediately obeying the king's writ
(4) It has been faid, by C. J. Wilmot, that " this is an in-
** queft of oliice to inform the confcience of the court, who, if they
*' pleafc, may themfelves afTefs the "damages." 3 JVilf. 62.
Hence a praftice is now eftablifhed in the courts of king's bench
and common pleas, in aftions where judgment is recovered by de-*
fault upon a bill of exchange or a promlffory note, to refer it to the
mafter or prothonotary to afcertain v;hat is due for principal,
intereft, and cofts, whofe report fuperfedes the necefiicy of a' writ
of inquiry. 4 T. R. 275. H. Bl. 541. But this pradlice is not
yet adopted by the court of exchequer, i Anjl. 249. In cafes
of difficulty and importance, the court will give leave to have the
writ of inquiry executed- before a judge at fittings or ntfi pr'ius ;
and then the judge adts only as an affiftant to the fheriff. The
number of the jurors fworn upon this inqueft need not be confined
to twelve ; for when a writ of inquiry Avas executea at the bar of
the court of king's bench, in an adlion oi fcandalum magpalum^
brought by the duke of York, (afterwards James the fecond,)
againllTitus Oates, who had called him a traitor; fifteen were fworn
upon the jury, who gave all the damages laid in the declaration,
v'i%. 100,000/. In that cafe the (heriffs of Middlefex fat in court,
covered, at the table below the judges. 3 St. Tr. 987.
by
Ch. 24. Wrongs. 398
by rendering the plaintiff his due ^; or be taken up, capiatur,
till he pays a fine to the king for the public mifdemefnor which
is coupled with the private injury, in all cafes of force *, of
falfliood in denying his own deed ^ or unjuftly claiming pro-
perty in replevin, or of contempt by dlfobeying the com-
mand of the king's writ or the exprefs prohibition of any fta-
tute '. But now in cafe of trefpafs, ejedment, aflault, and
falfe imprifonment, it is provided by the ftatute ^ &^ 6 W. &
M. c. 12. that no writ of capias fiiall ifliie for this fine, nor [ 3^9 ]]
any fine be paid; but the plaintiff fhall pay 6s. Sd. to the
proper officer, and be allowed it againft the defendant among
his other cofls. And therefore upon fuch judgments in the
common pleas they ufed to enter that the fine was remitted,
and now in both courts they take no notice of any fine or
i:apias at all "". But if judgment be for the defendant, then
in cafe of fraud and deceit to the court, or malicious or vex-
atious fuits, the plaintiff may alfo be fined " ; but in moft
cafes it is only confidered, that he and his pledges of profe-
cuting be (nominally) amerced for his falfe claim, pro falfo
clamore fuo^ and that the defendant may go thereof without
a day, eat hide fine dicy that is, without any farther continu-
ance or adjournment ; the king's writ, commanding his at-
tendance, being now fully fatisfied, and his innocence pub-
licly cleared .
Thus much for judgments ; to which cofts are a neceffary
appendage ; it being now as well the maxim of ours as of the
civil law, that " vi^us viciori in expenjts condemuandus ejl^ :^
though the common law did not profeffedly allow any, the
amercement of the vanquifhed party being his only punifh-
ment. The firft flatute which gave colls, eo nomivey to the
demandant in a real alion was the flatute of Gloucefter
' 8 Rep. 40. 61. ' 8 Rep. 60,
8 Rep. 59. II Rep. 45. 5 Mod. "> Silk. 54. Carth. 390.
aSj. See append. N'' 11. 4. "8 Rep. 59, 60.
k F. N. B. 121. Co. Litt 131. Appendix, No III, 6. '
8 Rep. 60. I Roll. Abr. 219. Liil. P Cod. 3. i. 13.
Hatr. 379. C. B. Uil. 4 Ann. rot. 430,
6 Edw,
J99 Private Book IIL
6'Edw. I. c. I. a dltl tlie ftatute of Marlbridge 52 Hen. IIL
C. 6^ to the defendant in one particular cafe, relative to ward-
^ip in chivalry ; though in reality cofls were always confi-
iJered and included in the quantum o( damages, in fuch actions
^here damages are given ; and even now, cofts for the
jilaintiff are always entered on the roll as increafe of damages
fey the court '^. But, becaufe thofe damages were frequently
kiadequate to the plaintiff's expenfes, the ftatute of Gioucefler
orders cofts to be alfo added j and farther diredts, that the
fame rule IhalT hold place in all cafes where the party is to re-
cover damages. And therefore in fuch actions v;here no da-
mages were tHen recoverable (as in quare impedlt^ in which da-
1^ J^xs> 3 mages were not given till the flatute.of Weftm. 2. 13 Edw.I.)
no cofts are now allowed^; unlefs they have been exprefsly
given by fome fubfequent ftatute. The ftatute 3 Hen, VII.
tf. ro. was the firft which allowed any cofts on a writ of error,
IKut no cofts^ were allowed tlie defendant in any fliape, till the
ffatiites 23 Hen. VIII. c. 15. 4 Jac. I. c. 3. 8 & 9W. III.
e. ri. 4 & 5 Ann. c. 16. which very equitably gave the
defendant, if he prevailed, the fame cofts as the plaintiff
would have had, in cafe he had recovered. Thefe cofts on
"both fides are taxed and moderated by the prothonotary,
f other proper ofEcer of the court.
The king (and any perfon fulng to his ufe ') ftiall neither
pay nor receive cofts ; for, befides that he is not included
under the general words of thefe ftatutes, as it is his preroga-
tive not to pay them to a fubjeft, fo it is beneath his dignity
to receive them. And it feems reafonable to fuppofe, that
tht queen-confort participates of the fame privilege ; for,
in alions brought by her, Ihe was not at the common law
oi)liged to find pledges of profecution, nor could be amerced
in cafe there was judgment againft her '. In two other cafes
an exemption alfo lies from paying cofts. Executors and ad-
Winiftrators, when fuing in the right of the deceafed, ftiall pay
* Appeiri. N" II. 4. * Stat 2 j. Hen. VIII. c. 8.
' ID Rep. ii6. f F. N. B. 101. Co. Litt. 133.
none:
Ch. 24, Wrongs. 403*
none": for the ftatute 23 Hen. VIII. c. 15. doth not give
cofts to defendants, unlefs where the aftion fuppofeth the
contraft to be made with, or the wrong to be done to, the
plaii.tiffhimfelf (5). And paupers, that is, fuch as will fwear
themfclves not worth five pounds, are, by ftatute ii Hen.
VII. c. 12. to have original writs and fubpoenat gratis y and
counfel and attorney -afii^ned them without fee ; and are ex-
culed from paying cofts> when plaintiiFs, by the ftatute 23 Hen
VIII. c. 1 5. but (hall fufFer other puniftiment at the difcretion
of the judges. And it was formerly ufual to give fuch pau-
pers, if nonfuited, their eleftion either to be whipped or pay
their cofts* : though that practice is now dilufed *. It feems
however agreed, that a pauper may recover cofts, though [ 401 J
he pays none ; for the counfel and clerks are bound to give
their labour to hitn^ but not to his antagonifts ^. To prevent
alfo trifling and malicious a(5lions, for words, for affault and
battery, and for trefpafs, it is enacted by ftatutes 43 Eliz.
c. 6. (6), 21 Jac. I. c, 16. and 22 & 23 Car. II. c.p. 136,
" Cro. Jac. 4*9. I Vent. 9*. Salk. 506.
* 1 Sid. a6i. '7 Mod. 114. y I Equ. Caf. abr. 125.
(5) If executors fue as executors for money paid to their ufe
after the teftator's death, they (hall pay cofts. 5 T. R. 234. Wheo
executors and adminiftrators are defendants, they pay cofts, like
other perfon8. 2 Cromp. Prac. 476. Or wherever the caufe of
aftion arifes in the time of the executor, as the converfion in the
cafe of trover, the executor ftiall pay cofts, becaufe it is not nc*
ceflary to bring the aftion in the charafter of executor. 7 T. R,
358. So an executor or adminiftrator is liable to pay the cofts of
a nonpros. 6 T. /?. 654.
(6) The43Eliz. c. 6. enals, that where the plaintiff in any
perfonal adlion, except for any title or intereft in lands, or for a
batter)', recovers lefs than 40 j. he ftiall have no more cofts than da>
mages, if the judge certifies that the debt or damages were under
40J. But if the judge does not grant fuch a certificate to the
defendant, the plaintiff recovers full cofts. AAions of trefpafs vi et
armis, as for beating a dog, are within the ftatute. 3 T. R. 38.
/The certificate under this ftatutcoiay be granted after the trial.
Thi
401 Private Book III.
that, where the jury who try any of thefe alions fhall give
lefs damages than 40/. the plaintiff (hall be allowed no more
cofts than damages, unlefs the judge before whom the caufe
is tried fhall certify under his hand on the back of the re-
cord, that an a6lual battery (and not an afTault only) was
proved, or that in trefpafs the freehold or title of the land
came chiefly in queflion. Alfo by flatute 4 St 5 W. & M.
c. 23. and 8 & 9 W. III. c. 1 1. if the trefpafs were com-
mitted in hunting or fporting by an inferior tradefman, or if
it appear to be wilfully and malicioully committed, the
plaintiff fhall have full cofts'', though his damages as affeffed
by the jury amount to lefs than 40/.
After judgment is entered, execution will immediately fol-
low, unlefs the party condemned thinks himfelf unjuflly ag-
grieved by any of thefe proceedings ; and then he has his re-
medy to reverfe them by feveral writs in the nature of appeals,
which we fhall confider in the fucceeding chapter.
^ See pag. 214, 215,
This certificate is to reflrain the cofts ; but a certificate under
the 22 & 23 Car. II. c. 9, is given in favour of the plaintiff to ex-
tend them from a fum under 40J. to full cofls. If the defendant
juftifies the battery, the plaintiff fhall have full cofls without the
judge's certificate, though the damages are under 40J. ; for it is
held the admiffion of the defendant precludes the neceflity of the
certificate. But a juftification of the afTault only will not be fuf-
ficieut for this purpofe ; for the judge muft certify an actual bat-
tery. 3 7*. i?. 391. This certificate mufl be granted at the trial.
2 Cromp. Prac. 455.
In declarations for afTault and battery, there is fometimes a count
for tearing the plaintiff's cloaths ; and if this is flated as a fub-
flantive injury, and the jury find it to have been fuch, and not to
have happened in confequence of the beating, the plaintiff will be
entitled to full cofts (i T. R. 6^6.) ; unlefs the judge fliould affift
the defendant under the 43 Eliz. c. 6. So in a trefpafs upon land,
the carrying away or afportavU of any independent perfonal pro-
perty will entitle the plaintiff to full cofts, unltfs the afportation,
as by digging and carrying away turves, is a mode or qualification
of the trefpafs upon the land. Doug, 780.
7
Ch. 25, Wrongs. 40a
CHAPTER THE TWENTY-FIFTH.
OF PROCEEDIN G S, in the
NATURE OF APPEALS.
PROCEEDINGS, in the nature of appeals from the
proceedings of the king's courts of law, arc of various
kinds : according to the fubjet matter in which they arc
concerned. They are principally four.
I. A WRIT of attahii : which lieth to inquire whether a
jury of twelve men gave a falfe verdiil^j that fo the judg-
ment following thereupon may be reverfed ; and this muft
be brought in the lifetime of him for whom the verdil was
given, and of two at leaft of the jurors who gave it. This
lay at the common law, only upon writs of q/Ji/e; and
feems to have been co-eval with that inftitution by king
Henry II. at the inftance of his chief juftice Glanvil : being
probably meant as a check upon the vafl: power then rcpofed
in the recognitors of aflife, of finding a verdil according to
their own perfonal knowl^ge, without the examination of
witnefles. And even here it extended no farther than to fuch
inftanccs, where the iflue was joined upon the very point of r ^o^ 1
aflife (the heirfliip, difleifin, ^c), and not on any collateral
matter \ as villenage, baftardy, or any other difputed fa6l.
In thefe cafes the a//i/e was faid to be turned into an inquefl or
juryy (njftfu vertittir injuratamy) or that the aflife (hould be
taken in tmdum juratae et nsn in modum ajffifae ; that is, that
f finch. L. 4S4.
1 the
403 Private Book III*
the ifliie ftiould be tried by a common jury or inqueft, and
not by recognitors of affife ^ : and then I apprehend that no
attaint lay ag.iinfl: the inqueft or jury that determined fuch
collateral iffue '. Neither do I find any mention made by
our anticnt writers, of fuch a proccfs obtaining after the trial
by inquclt or jury, in the old Norman or feodal alions pro-
fecuted by writ of entry. Nor did any attaint lie in trefpafst
debti or other aftion perfonal, by the old common law : be*
caufe thofe were always determined by common inquefts of
juries'*. At length the ftatute of Weflm. 1. 3 Edw. I.
c. 38. allowed an attaint to be fued upon utquejls, ;is well as
ajfijhy which were taken upon any plea of land or o^ freehold.
But this was at the king's difcretion, and is fo underftood
by the author of Fleta % a writer contemporary with the fta-
tute; though fir Edward Coke ^ feems to hold a different
opinion. Other fubfequent ftatutes ^ introduced the fame re-
medy in all pleas of irefpafsy and the ftatute 34 Edw. III.
* c. 7. extended it to all pleas whatfoever, perfonal as well as
real; except only the writ of rights in fuch cafes where the
mife or iflue is joined on the mere righty and not on any col-
lateral queftion. For, though the attaint feems to have been
generally allowed in the reign of Henry the fecond \ at the
firft introdudiion of the grajnd affife, (which at that time
might confift of only twelve recognitors, in cafe they were all
unanimous,) yet fubfequent authorities have holden, that no
attaint lies on a falfe verdidl given upon the mere right, ei-
404 3 ther at common law or by ftatute , bccaufe that is determined
by the grand affife, appealed to by the party himfelf, and
now confifting oijtxteen jurors *.
The jury who are to try this falfe verdit muft be twenty-
four, and are called the grand jury ; for the law wills not
*Btaa. /. 4. tr. I. e, 34. ^ a, 3, ^ ^ Inft. 150 237.
4. lr. 3. e. 17. tr 5. c. 4. ^ I, *. * Stat, i Edw. IJI. ft. i. c. 6.
riet. /. 5. c. aa. 8. Co Entr. 61. b. 5 Edw, III. c. 7. 28 Edw. III. c. 8.
Booth. 213. " See pag. 389.
Braft 4. I. 34. 2. FJet. ibid. ' Braft. 290. Flet. 5. zi. 7. Britt.
Yearb 28 Edw. IH. 15. ij Aff^. 243. b. li Hen. VI. 6. Bro. abr. t.
pl. IS- Flet. 5 22.16. tutdntt i^z, J Roil. ^r. z?t>.
/. 5.*. 2Z. 8&ie.
that
Ch. 25. Wrong s. 404.
that the oath of ^sne jury of twelve men fhould be attaktedor
fet aGde by an eijual number, nor bylefs indeed thandoublfc
the former ''. If the matter in difpute be of forty pounds va-
lue in perfonals, or of forty fhillings a year in lands and te-
nements, then by ftatute 15 Hen. VI. c. 5. each grand juKwr
muft have freehold to the annual value of tvv^enty pounds.
And he that brings the attaint can give no other evidence to
the grand jury, than what was originally given to the petit.
For as their verdiii is now trying, and the queftion is, whe-
ther or no they did right upon the evidence that appeared -to
them ? the law adjudged it the higheft abfurdity to produce
any fubfequent proof upon fuch trial, and to condemn tlic
prior jurifdidlion for not believing evidence which they never
knew. But thofe againfl: whom it is brought are allowed,
in affirmance of the firft verdicl, to produce new matter':
becaufe tiie petit jury may have formed their verdicl upoa
evidence of their own knowlege, which never appeared m
court. If the grand jury found the verdifl a falfe one, the
judgment by the common law was, that the jurors fhould
lofe their llberam legem and become for ever infamous ; fliould
forfeit their goods and the profits of their lands ; flvould
themfelves be imprifoned, and their wives and children
tlirown out of doors ; fhould have their houfes rafed, their
trees extirpated, and their meadows ploughed ; and that the
plaintiff fhould be reftored to all that he loll by reafon of the
unjufl verdi(ft. But as the feverity of this puniihment had
it's ufual effect, in preventing the law from being executed^
therefore by the flatute i x Hen. VII. c. 24. revived by [ 405 J
a3Hen.VIIL c. 3. and made perpetual by 13 Eliz. c. 25. '
an attaint is allowed to be brought after ths death of the
party, and a more moderate punifhment was inflicled upon
attainted jurors ; viz. perpetual infamy, and, if the caufe of
alion were above 40/. value, a forfeiture of 20/. apiece
by the jurors ; or, if under 40/., then 5 /. apiece ; to be di-
vided between the king and the party injured. So that a maa
may now bring an attaint either upon the ftatute or at cora-^
Braa. /. 4. lr. 5. c. 4. i. ' rintb. L. 4S6.
f ict. 1. 5. c. a2. 7.
VROIt
40^ Private Book III.
mon law, at his ele(5iion'" j and in both of them may reverfe
the former judgment. But the pradlice of fetting afide ver-
dils upon motion, and granting nenu trialsy has fo fuperfed-
cd the ufe of both forts of attaints, that I have obferved very
few inftances of an attaint in our books, later than the fix-
teenth century". By the old Gothic conftitution indeed, no
certificate of a judge was allowed, in matters of evidence, to
countervail the oath of the jury : but their verdiQ, however
erroneous, was abfolutely final and conclufive. Yet there
was a proceeding from whence our attaint may be derived-
If, upon a lawful trial before a fuperior tribunal, the jury
were found to have given a falfe verdict, they were fined, and
rendered infamous for the future ".
II. The writ of deceit j or action on the cafe in nature of
it, may be brought in the court of common pleas, to reverfe
a judgment there had by fraud or collufion in a real aftion,
whereby lands and tenements have been recovered to the
prejudice of him that hath right. But of this enough hath
been obferved in a former chapter p.
IIL An audita querela is where a defendant, againft whom
judgment is recovered, and who is therefore in danger of
r 406 l execution, or perhaps actually in execution, may be relieved
upon good matter of difcharge, which has happened fince
the judgment: as if the plaintiff hath given him a general
releafe ; or if the defendant hath paid the debt to the plain-
tiff, without procuring fatisfaftion to be entered on the re-
cord. In thefe and the like cafts, wherein the defendant hath
good matter to plead, but hath had no opportunity of plead-
ing it, (either at the beginning of the fuit, or puis darrein
conti/iuaticey which, as was flicwn in a former chapter'', mufi;
always be before judgment,) an audita querela lies, in the na-
ture of a bill in equity, to be relieved againft the oppreflion
"" 3 Inft. 164. " tur in bonis, it caetero perjuri et irtef-
" Cro. Eliz. 3C9. Cro. Jac. 90. " tabihs." Stiernhook dc jure Ccth,
Si tamen e-vidtnti argumento fal- /. I. f. 4.
*' fum jurajje confvincantur (id (juodfupe. P See pag. 165.
* rius judicium cognojcen debet J muiilait' ^ See pag. jio.
Pi
Ch. 25. Wrongs. 406
of the plaintiff'. It Is a writ direcfled to the court, dating
that the complaint of the defendant hath been heard, audita
querela defendentis^ and then fetting out the matter of the
complaint, it at length enjoins the court to call the parties
before them, and, having heard their allegations and proofs,
to caufe juftice to be done between them"^. It alfo lies for
bail, when judgment is obtained againft them hy fcire facias to
anfwer the debt of their principal, and it happens afterwards
that the original judgment againft their principal is reverfed ;
for here the bail after judgment had againft them, have no op-
portunity to plead this fpecial matter, and therefore they ftiall
have redrefs by audita querela f ; which is a writ of a moft re-
medial nature, and feems to have been invented, left in any
cafe there (hould be an oppreflive defet of juftice, where a
party, who hath a good defence, is too late to make It in the
ordinary forms of law. But the indulgence now fhewn by
the courts in granting a fummary relief upon motion, in
cafes of fuch evident oppreflion % has almoft rendered
ufelefs the writ of audita querela, and driven it quite out of
pradtlce.
IV. But, fourthly, the principal method of redrefs for
erroneous judgments in the king's courts of record, is by
ivrit of error to fome fuperior court of appeal.
A WRIT of error ' lies for fome fuppofed miftake in the [ ^07 "}
proceedings of a court of record ; for to amend errors In a
bafe court, not of record, a writ of falfe judgment lies". The
writ of error only lies upon matter of laiv arlGng upon the
face of the proceedings ; fo that no evidence is required to
fubftantiate or fupport it: there being no method of re-'
verfmg an error in the determination of faBs^ but by an
attaint, or a new trial, to corredl the miftakes of the former
verdldl.
Formerly the fuitors were much perplexed by writs of
error brought upon very flight and trivial grounds, as mif-
' Finch. L, 488. F. N. B. J02. * Appoid No III. 6.
f 1 Roll. Abr. ^o8. " Finch. L. 484.
Lurd Raym. ^9*
Vol. III. G g fpelllng
4^7 - Private Book I-L
Spellings and other miflakes of the clerks, all which m-ght
be amended at the common law, while all the proceedings
were inpaper^y for they were then confidered as only injieri,
and therefore fubjel to the control of the courts. Bur, when
once the record was made up, it was formerly held, that by
the common law no amendment could be ^permitted, unlefs
within the very term in which the judicial a6l fo recorded was
done : for during the term the record is in the breaft of the
court; but afterwards it admitted of no alteration*. But now
the courts are become more liberal ; and, where jullice re-
tjuires it, will allow of amendments at any time while the
fuit is depending, notwithftanding-the record be raade up, and
the term be paft. For they at prefent confider the proceed-
ings as in jfieriy till judgment is given ; and therefore that,
till then they have power to permit amendments by the com-
mon law : but when judgment Is once given and inrolled,
no amendment is permitted in any fubfequent term^. Mif-
takes are alfo effe<Stually helped by the flatutes of amendment
znd Jeofails : fo called, becaufe when a pleader perceives any
flip in the form of his proceedings, and acknowleges luch
error (jeofaileji he is at liberty by thofe flatutes to amend it ;
which amendment is feldom adtually made, but the benefit
f 408 1 of the a6ts is attained by the court^s overlooking the excep-
tion^. Thefe flatutes are many in number, and the provifions
in them too minute to be here taken notice of, otherwife than
by referring to the flatutes themfelves ^ ; by which all trifling
exceptions are fo thoroughly guarded againfl, that writs of
error caimot now be maintained, but for fome material mif-
Jake afligned.
This is at prefent the general- do(3;rrne of amendments ;
and it's rife and hiflory are fomewhat curious. In the early
ages of our jurifprudence, when all pleadings were ore tetim^
w /y Burr. 1099. Silt,. 3 a. Hen. VI 11. c. 30. j8 Eliz.
'' t:o. Litti a6o. c. 14. 2 1 Jac. I. c 13. 16 & 17 Car. II.
> Stat. II Hen. IV, e. 3. c. 8. ^ftiled in 1 Vcntr. 100. an omni-
' Stra. loii. potent ad), 4 & 5 Ann. c. 16. 9 Ann.
Stat. i4Edw. V\. c 6. 9 Ren. V. c. zo. 5 Ceo.' I, c. ij.
0,4. 4, Hen. VI. c. 3 8 Hen, VI. e. iz.
xT
Oh. 25^ Wrongs. 40S
if a flip was perceived and objedted to by the onpofite party
or the court, die pleader inllantly acknowleged his error and
Telified his plea ; which gave occafion to that length of dia-
logue reported in the antient year-books. So liberal were
then the fentiments of the crown as well as the judges, that
in the ftatute of Wales, made at Rothelan, 12 Edw. I. the
pleadings are diredtcd to be carried on in that principality,
*' fine calumpnia verbortwjy non ohfervata ilia dura confuetudine^
** qui cad'it afyllaba cadit a tola caufn" The judgnnents were
entered up immediately by the clerks and officers of the court;
and, if any m.if-entry was made, it was rectified by the mi-
nutes, or by the remembrance of the court itlelf.
When the treatife by Britton was publifljed, in the name
and by authority of the king, (probably about the 13 Edw. h
becaiife the laft ftatutcs therein referred to are thofe of Win-
chefter and Wcftminfler the fccond,) a check feems intended
to be given to the unwarrantable pral:ices of fome judges,
who had made falfe entries on the rolls to cover their own
milbchaviour, and had taken upon them by amendments and
rafures to falfify their own records. The king therefore de-
clares** that '* although we have granted to our juftices to
** make lecord of pleas pleaded before them, yet we will not 409 j
* that their own record fliould be a warranty for tlieir own
** wrong, nbr that they may rafe their rolls, nor amend them,
* nor record them contrary to their, original enrolment."
The whole of which, taken together, amounts to this, that
a record furrcptitioufly or erroneoufly made up, to ftille or
pervert the truth, fliould not be a fandlion for error; and
that a record, originally made up according to the truth of
the cafe, fhould not afterwards by any private rafure Or
amendment be altered to any finifter purpofe*
But when afterwards king Edward, on his return from
his French dominions in the feveuteenth year of his reign,
after upwards of three years abfence, found it neceflary (or
oavcnjent, in order to replenifh his exchequer) to profecutc
* Eri*. frum. 2, 3.
G 2 5 his
409
Private
Book III.
his judges for their corruption and other mal-pralices, the
perverfion of judgments and other manifold errors', occa-
fioned by their erafing and altering records, were among the
caufes affigned for the heavy punifhments infli<Sled upon al-
inoft all the king's jufliccs, even the moll able and upright''.
The feverity of which proceedings feems fo to have alarmed
[ 410 ] the fucceeding judges, that, through a fear of being faid to
do wrong, they hefitated at doing what was right. As it
was fo hazardous to alter a record duly made up, even from
compaffionate motives, (as happened in Hengham's cafe.
' Judicia pefuerteruntf et in al'th er-
raverutit (Matth. Weft. -^. D. 1289.)
'' Among the other judges, Hr Ralph
Henghaii), chief juftlce of the king's
bench is faid to have been fined ycoo
marks, fir Adam Stratton chief baron
of the exchequer 34,000 marks, and
Thomas Wayland chief juftice of the
common. pleas to have been attainted of
felony, and to have abjured the realm,
with a forfeiture of all his eftates ; the
whole amount of the forfeitures being
upwards of 100,000 marks, or 70,000
pounds. (3 Pryn. Rec. 401, 402.) An
iQcredible fum in thofe days, before pa-
per credit was in ufe, and when the an-
nual falary of a chief juftice was only
fixty marks. {C/auf 6 Ediv. I. m. 6.
Dugd. cbron. Jer. 26.) The charge
againft fir Ralph Hengham (a very
learned judge, to whom we are obliged
for two excellent treatiles of praftice)
was only, according to a tradition that
was current in Richard the third's time,
(Year-book, M 2. Rk. 111. 10.) his al-
tering out of mere compaffion a fine,
which was fet upon a very poor man,
from 13J. ifd. to 6i. 8J., for which he
was fined 800 marks ; a more probable
fum than 7000'. It is true, the book
calls the judge fo puniflied Ingham and
not Hengham: but 1 find no jud(,eof the
name of hghant in Dugdale's Series ; and
fir Edward Coke (4 loft. 255.) and fir
Matthew Hale (i P.C. 646.) underftand
it to have been the chief juftice. And
certainly his offence (whatever it was)
was nothing very atrocious or difgrace-
ful : for though removed from the king's
^bench at this time (together with the
reft of the judges) we find him about
eleven years afterwards one of the j uftices
in eyre for the general perambulation of
the forefts (Rit. ferambul. fcreji, in
turri Lond. 29 Ediv. I. m. 8.) ; and the
next year made chief juftice df the com-
mon pleas, {Fat, 29 Edto. L m. 7.
Dugd. chron.fer. 32), In which office
he continued till his death in 2 Edw. II.
(ClauJ. lEd-u'.JI.m 19. Pat. 2Edw.II. '
p. I. tn. 9. Dugd. 34. Seiden pref, to
Hengham.) There is an appendix t
this tradition, remembered by juftice
Southcote in the reign of queen Eliza-
beth (3 Inft. 72. 4 Inft. 255.), that
with this fine of chief juftice Hengham
a clock-houfe was built at Weftminfter,
and furni/hed with a clock, to be heard
into Wertminfter hail. Upon which
flory I ftiall only remark, that (what-
ever early inftances may he found of the
private exertion of mechanical genius,
in conftruling horological machines)
clocks came nor into common ufe till an
hundred years afterwards, abou' the end
of the fourteenth century (Encych'
fedie. tic. horloge. 6 Ky m; Foed. 590*
Derltam's Artif. Clockraaker. 91.)
which
Ch. 25- Wrongs. 413
which in ftriflnefs was certainly indefenfible,) they refolved
not to touch a record any more; but held that even palpable
errors, when inrolled and the term at an end, were too facred
to be rectified or called in queftion : and, becaufe Britton ,
had forbidden all criminal and clandeftine alterations, to
make a record fpeak a falfity, they conceived that they
might not judicially and publicly amend it, to make it
agreeable to truth. In Edward the third's time indeed,
they once ventured (upon the certificate of the juftice in
eyre) to eftreat a larger fine than had been recorded by the
clerk of the court below = : but, inftead of amending the
clerk's erroneous record, they made a fecond inrolment o^
what the juftice had declared ore ienus ; and left it to be
fettled by pofterlty in which of the two rolls that abfrJute
verity refides, which every record is faid to import in itfelf ^
And, in the reign of Richard the fecond, there are inftancess
of their refufing to amend the moft palpable errors and mif-
entries, unlefs by the authority of parliament.
To this real fullennefs, but affefled timidity of the judges,
fuch a narrownefs of thinking was added, that every ilip
(even of a fy liable or a letter'') was now held to be fatal to
the pleader, and overturned his client's caufe*. If they durft [ 411 J
not, or would not, ftt right mere formal miftakes at any
time, upon equitable terms and conditions, they at leaft
(hould have held, that trifling objedions were at all times
inadmiflible ; and that more folid exceptions in point of form
came too late when the merits had been tried. They might
through a decent degree of tendernefs, have excufed them-
felves from amending in criminal, and efpecially in capital,
cafes. They needed not have granted an amendment, where
it would work an injuftice to either party ; or where he could
not be put in as good a condition, as if his adverfary had
I Hal. p. C. 647. ' In thofe days it was ftridly true,
' I Leon. 183. Co. Litt. 117. See what Ruggle (in his ignoramus has hu-
'& 33^* morouny applied to more modern plead-
I Hal. P. C. 648. ings) " in noftra Ugi unum comma ever-
* Sut. 14 Edw. III. c. 6. " tit totum fhdium."
G g 3 made
411 Private Book HI.
made no miftake. And, If it was feared that an amendment
after trial might fubjet the jury to an attaint, how eafy was
it to make waiving the attaint the condition of allowing the
amendment ! And yet thefe v/ere among the abfurd reafons
alleged for never fuffering amendments at' all'' 1
The precedents then fet were afterwards moft religioufly
followed', to the great obftruclion of juftice, and ruin of
the fuitors ; who have formerly fufrered as much by this
fcrupulous obftinacy and literal flriftnefs of the courts, as
they could have done even by their iniquity. After verdi6ls
and judgments upon the merits, they were frequently re-
verfcd for flips of the pen or mif-fpellings ; and juflice was
perpetually intangled in a net of mere technical jargon. The
legiflature hath therefore been forced to interpofe, by no lefs
than twelve ftatutes, to remedy thcfe opprobrious niceties :
and it's endeavours have been of late fo well feconded by
judges of a more liberal caft, that this unfeemly degree of
ftricStnefs is almoft entirely eradicated ; and will probably
in a few years be no more remembered, than the learning
of efibins and defaults, or the counterpleas of voucher, are
at prefent. But, to return to our writs of error.
f*4To] 1^^ writ of error be brought to reverfe any judgment of
an inferior court of record, where the damages are lefs than
ten pounds ; or, if it is brought to reverfe the judgment of
any fupcrior court after verdict, he that brings the writ, or
that is plaintitF in error, muft (except in fome peculiar cafes)
find fubftantial pledges of profecution, or bail "^ ; to prevent
delays by frivolous pretences to appeal j and for fecuring
payment of cofts and damages, which are now payable by
the vanquifhed party in all, except a few particular in (lances,
by, virtue of the feveral ftatutes recited in the margin".
A WRIT of error lies from the inferior courts of record in
England into the king's bench , and not into the common
, k Styl. 207. " 3 Hen. Vll. c. to. 13 Car. II.
8 Rep. 156, ff. c. 2. 8&9 W. III. c. II. 4 and 5
" Stat. 3 Jaic. I. c. 8. 13 Car, II. Ann. c. j6.
1. 16 & 17 Car. Ill i, i. 19 Geo. See chap. 4.
' \il. c. 70,
I J pleas,
Ch. 25. Wrongs, *4ia
pleas p. Alfo from the king's bench in Irelanc! to the king's
bench in England ( i ). It likewife may be brought frcn the
common pleas at Wellminfter to the kiag's bench ; and thea
from the king's bench the caufe is re moveable to the houfe
of lords. From proceedings on the law fide of the exchequer
a writ of error lies into the court of exchequer chamber be-
fore the lord chancellor, lord treafurer, and the judges of the
court of king's bench and common pleas (2) : and from thence
it lies to the houfe of peers. From proceedings in the king's
bench, in debt, detinue, covenant, account, cafe, ejeclment,
or trefpafs, originally begun therein by biil, (except where ^
the king is party,) it lies to the exchequer chamber, before
the juftices of the common pleas, and barons of the exche-
quer; and from thence alfo to the houfe of lords ^j but
where the proceedings in the king's bench do not firfh com-
Txience therein by bill, but by original writ fued out of chan-
cery *, this takes the cafe out of the general rule laid down
by the llatute ^ ; fo that the writ of error then lies, without [ *4^' J
any intermediate (lage of appeal, direcSlly to the houfe of
lords, the dernier i-efort for the ultimate decifion of every
civil adlion. Each court of appeal, in their refpeiive ftagos,
may, upon hearing the matter of law in which the error is
alhgned, reverfe or affirm the judgment of the inferior courts;
but none of them are final, fa ve only the houfe of peers, to
whofe judicial decifions all other tribunals mult therefore
fubmit, and conform their own. And thus much for the re-
vcrfal or affirmance of judgments at law, by writs in the
nature of appeals.
> Finch. L. 480. D^er. 150. ^ 1 Roll. Rep. 264. 1 SiJ. 424.,
*i Sut. f] E)iz. c. 8. I Saund. 34.6. Carth. 180. Comb.
" See pag. 43. 295.
(1) This appeal is taken away by 23 Geo. III. c. 28. Sec
I vol, p. 104. n. 14.
(2) The 31 Edw. III. c. 12. direfts, that the chancellor
and treafurer (hall take to their affiftance the judges of the other
courts, and antres fa^es come lour Jemllera. But it is the practice
for the two chief juiUccs alone to fit ia this court of cnor.
Cg4
4ia Private Book III.
CHAPTER THE TWENTY-SIXTH.
OF EXECUTION.
IF the regular judgment of the court, after the declfion of
the fuit, be not fufpended, fuperfeded, or reverfed, by one
or other of the methods mentioned in the two preceding
chapters, the next and laft ftep is the execution of that judg-
ment ; or, putting the fentence of the law in force. This
is performed in different manners, according to the nature of
the adtion upon which it is founded, and of the judgment
which is had or recovered.
If the plaintiff recovers in an action real or mixed, where-
by the feifin or pofreffion of land is awarded to him, the writ
of execution fhall be an habere facias feifinam, or writ of
feifin of a freehold ; or an habere facias pojfejjlonem, or writ
of pofTefTiona, of a chattel intereft ''. Thefe are writs direct-
ed to the fherifF of the county, commanding him to give ac-
tual pQiTefTion to the plaintiff of the land fo recovered : in the
execution of which the fheriff may take with him the pojfe
comitatusy or" power of the county ; and may juftify breaking
open doors if the pofTeflion be not quietly delivered. But,
if it be peaceably yielded up, the delivery of a twig, a turf^
or the ring of the door, in the name of feifin, is fufficient
execution of the writ. Upon a prefentation to a benefice re-
covered in a qtiare impedit, or affife of darrein prefentinenty
the execution is by a writ de clerico admittendo : directed, not
to the fherifF, but to the bifhop or archbifhop, and requiring
him to admit and inititute the clerk of the plaintiff.
In other actions, where the judgment is that fomcthing In
fpecial be done or rendered hy the defendant, then, in order
C 4^ 3 ^ compel him fo to do, and to fee the judgment executed, a
* Append. N" II. 4. * Finch. L. 470,
f|>cciil
Ch. 26. Wrongs.
413
fpecial writ of execution liTues to the ftieriff according to the
nature of the cafe. As, upon an affife of nufance, or quod
fermittat projlernerey where one part of the judgment is quod
nocumentum amoveatur^ a writ goes to the flieriiT to abate it
at the charge of the party, which Hkewife iffues even in cafe
of an indi<Slment ^. Upon a replevin, the writ of execution is
the writ de reform habendo ^ : and, if tlie diftrefs be eloigned,
the defendant (hall have a capias in ivithernam ^, but on the
plaintiff's tendering the damages and fubmitting to a fine,
the procefs in withernam fliall be ftayed ^. In detinue, after
judgment, the plaintiff fliall have a dijiringasy to compel the
defendant to deliver the goods, by repeated diftreffcs of his
chattels ^ ; or elfe a fcire facias againft any third perfon in
whofe hands they may happen to be, to fhew caufe why they
(hould not be delivered ; and if the defendant flill continues
obftinate, then (if the judgment hath been by default or on
demurrer) the ftieriff (hall fummon an inqueft to afcertain the
value of the goods, and the plaintiff's damages : which (being
either fo affeffed, or by the verdidl In cafe of an iffue ^) fhall
be levied on the perfon or goods of the defendant. So Uiat,
after all, in replevin and detinue, (the only alions for re-
covering the fpecific poffeffion of pcrfonal chattels,) if the
wrongdoer be very perverfe he cannot be compelled to a refti-
tutlon of the identical thing taken or detained ; but he ftill has
his eletion to deliver the goods, or their value*: an imper-
fection in the law, that refults from the nature of perfonal
property, which is eafily concealed or conveyed out of the
reach of jufllce, and not always amefnable to the magiftrate.
Executions in actions where money only is recovered,
as a debt or damages, (and not any fpecific chattel,) are'of
five forts: either againft. the body of the defendant; or againft:
his goods and chattels ; or againft his goods and the profits of
his lands; or againft his goods and the pojejfton of his lands ;
or againft all three, his body, lands, and goods.
Comb. 10. I Roll. Abr. 7J7. Raft. Entr. 215.
* See pag. 1 50. * Bro. Abr. t. Damages. 29.
* Itul. 149. ' Keilw. 64.
.f I Leon. 174.
I. The
4^4 Private Book III,
I. The firfl of thefe fpecles of execution, is by writ of
apiasadfjtisfacie)idtim]i which addition diflinguifhes it from
the former capinSf ad refpondendumy which lies to compel an
appearance at the beginning of a fuit. And, properly fpeak-
ing, this cannot be fued out again ft any but fuch as were
liable to be taken upon the former capias ^. The intent of it
is, to imprifon the body of the debtor till fatisfadlion be made
for the debt, cofts, and damages : it therefore doth not lie
agaiiift any privileged perfons, peers or members of parlia-
inent, nor againft executors or adminiftrators, nor againft
fiich other perlons as could not be originally held to bail.
And fir Edward Coke alfo gives us a fingular inftance ',
wh^TC a defendant in 14 Edw. III. was discharged from a ca-
faas becaufe he was of fo advanced an age, qtwd poennm im~
^ifanamenti fubire non poteji. If an alion be brought againft
an hufband and wife for the debt of the wife, when fole,
nd the plaintiff recovers judgment, the capias ihall ifl'ue to
take both the hu(band and wife in execution"': but, if the
alion w.TS originally brought againft herfelf, when fole, and
pending the fuit (he marries, the f^2/;)iaj- ihall.be awarded
againft her only, and not againft her hufband ". Yet, if
judgment be recovered againft an huft)and and wife for the
contraft, nay, even for the perfonal mifbehavlour ", of the
wife during her coverture, the capias ftiall iflue againft the
feufband only : which is one of the many great privileges of
J^glifh wives(i).
3 AppenJ. N" III. 7. " Mcor. 704.
t 3 Rep. 12. Moor. 767, Cro. Jae. 323,
>llnft. 289. /A;<^. 513.
( I ) Where both hufband and wife are arrefled upon mefne procefs.
Halt court will difcharge the w^ife upon motion and proof of the mar-
riage on common bail, unlefs it is for a debt contrafted fince her'
marriage, and fhe has reprefented herfelf to be fingle ; in which
cafe the court will not afiift her, but will leave her to pkad her
coverture. % T. R. 194. And where, after judgment againft
bufoand and wife, they arc both rendered in difcharge of bail,
jhe fhall be difcharged j for they are then in the fame fituation as
|f lii had never been put in for them. 3 IVilf, 124.
The
Ch. 26. Wrong s^ 414
The writ of capias ad fattsfaclendum is an execution of the
higheft nature, innfmuch as it deprives a man of bis libertv,
till he makes the fatisFadlion awarded ; and therefore, when
a man is once taken in execution upon this writ, no other
procefs can be fued out againft his lands or goods. Only by
llatute 21 Jac. I. c. 24. if the defendant dies, while charged
in execution upon this writ, the plaintiff may, after his death,
fue out a new execution againft his lands, goods, or chattels.
The writ is direfted to the fherifF, commanding him to take f 41? 1
the body of the defendant and have him at Weftminfter, on
a day therein named, to make the plaintiff fatisfaftion for
his demand. And, if he does not then make fatisfalion,
he muft remain in cuftody till he does. This writ may be
fued out, as may all other executory procefs, for cofts,
againft a plaintiff as well as a defendant, when judgment is
had againft him.
When a defendant is once in cuftody upon this procefs,
he is to be kept in arcla etfalva cujlod'm : and, if he be after-
wards feen at large, it is an efcape } and the plaintiff may
have an alion tliereupon againft tlie (heriff for his whole
debt. For though, upon arrefts and what is called vufne pro-
cefs, being fuch as intervenes between the commencement
and end of a fuit p, the flieriff, till ihe ftatute 8 Sc 9 W. III.
c. 27. might have indulged the defendant as he pleafed, fo
as he produced him in court to anfwer the plaintiff at the
return of the writ : yet, upon a taking in execution, he could
never give any indulgence j for, in that cafe, confinement
js the whole of the debtor's puniftiment, and of the fatisfac.-
tion made to the creditor (2). Efcapes are either voluntary, or
P See page 279.
(2) The objedl of impilfonmcnt for debt is not intended for
the punlflimcnt of the debtor, but to- compel him to difcharge the
debt out of property, fuch as money in the funds, or debts due t
him, which cannot be reached by any legal procefs.
But execution by imprifonment is confidered fo far a fatisfaftlon
of the debt, that if the creditor releafes the debtor from
confinement he cannot afterwards have recourfe to any other
remedy,
4^5 Private Book IIL
negligent. Voluntary are fuch as are by theexprefs confent
of the keeper j after which he never can retake his prifoner
again 'J, (though the plaintiff may retake him at any time %)
but the fheriff muft anfwer for the debt. Negligent efcapes
are where the prifoner efcapes without his keeper's knowlege
or^^onfent , and then upon frefh purfuit the defendant may
be retaken, and the {heriff fliall be excufed, if he has him
again before any ation brought againft himfelf for the
efcape'. A refcue of a prifoner i execution^ either going to
gaol or in gaol, or a breach of prifon, will not excufe the
ihcriff from being guilty of and anfwering for the efcape ;
for he ought to have fufficient force to keep him, fince he
may command the power of the county*. But by ftatute
32 Geo. II. c. 28. if a defendant, charged in execution for
any debt not exceeding 100/. will furrender all his effedls
E 4"^ 1 to his creditors (except his apparel, bedding, and tools of his
trade, not aniounting in the whole to the value of 10/.), and
will make oath of his pun(n:ual compliance with the ftatute,
the prifoner may be difcharged, unlefs the creditor infifts on
detaining him ; in which cafe he ftiall allow him 2 s. /\d. per
week, to be paid on the firft day of every week, and on failure
of regular payment the prifoner fhall be difcharged. Yet
the creditor may at any future time have execution againft
the lands and goods of fuch defendant, though never more
againft his perfon. And, on the other hand, the creditors
may, as in cafe of bankruptcy, compel (under pain of tranf-
portation for feven years) fuch debtor charged in execution
for any debt under ico/. to make a difcovery and furrender
J 3 Rep. 52. 1 Sid, 330. F.N. 6.130.
" Stat. 8 & 9 W. III. c. 27. ' Cro. Jac. 419.
remedy. In the 2d vol. p. 480. n.( 15), it is faid, that it has been
held in the court of chancery that a creditor who had his debtor
in execution might difcharge him, and take out a commlflion of
bankrupt againft him ; but fince that note w^as printfd, the con-
trary was decided by the court of king's bench, and that in fuch
a cafe the execution was a fatisfa(5lion of the debt. Cohen v. Cun-
ninghantj H, 1799.
of
Ch. 26. Wrong s. 416
of all his efFe^s for their benefit ; whereupon he is alfo en-
titled to the like difcharge of his perfon (3).
If a capias ad fatis faciendum is fued out, and a rion eji inven-
tus is returned thereon, the plaintiff may fue out a procefs
againft the bail, if any were given : who, we may remember,
ftipulated in this triple alternative ; -that the defendant
fhould, if condemned in the fuit, fatisfy the plaintiff his
debt and cofts ; or, that he flxould furrender himfelf a
prifoner ; or, that they would pay it for him : as therejfore
the two former branches of the alternative are neither of
them complied with, the latter muft immediately take place".
In order to which a writ of fcire facias may be fued out -
againft the bail, commanding them to (hew caufe why the C 4^7 1
plaintiff fliould not have execution againft them for his
debt and damages : and on fuch writ, if they {hew no fuffi-
cient caufe, or the defendant does not furrender himfelf on
the day of the return, or of fliewing caufe, (for afterwards is
not fufEcient,) the plaintiff may have judgment againft the
bail, and take out a writ oi capias ad fatisfacienduntf or other
procefs of execution againft them.
" Lutw. 1269 izyj.
( 3 ) The creditors who can compel the furrender of the debtor's
effcds, and who are to have the benefit of it, are only thofe who
have charged him in execution. This ftatute the 32 Geo. IL
c. 28. is generally tailed the lords' aft : By the 26 Geo. III. c. 44.
the provifions of it weie extended to 200/., and by the 33 Geo,
III. c. 5. they have been ftill further enlarged to 300/. By the
37 Geo. III. c. 85. one creditor (hall agree in writing, in order
to detain fuch a debtor, to make him a weekly allowance of 3 j. 6^/. ;
and where two or more fhall agree to detain him, they fhall pay
him what the court fhall dlredt, not exceeding 2/. a-week each.
See the claufes of the aft in 2 Burn, tit. Gaol.
The prifoner (hall never afterwards be liable to be arrefled on
any aftion for the fame debt, unkfs convidted of perjury. But a
prifoner, to have the benefit of this aft, n;iuft petition the court
from which the procefs iffued, upon which he fhall be in cuftody,
before the end of the firfl term after he is arrefted, unlefs he after-
wards {hews his negleft arofe from ignorance or miftake.
14 2. Th^
41/ Private Book IlL
2. The next fpecies of execution is againfl: the goods and
' chattels of the defendant ; and is called a writ oi fieri facias" j
.from the words in it where the fheriff is commanded, quod.
fieri faciat de honis^ that he caufe to be made of the goods and
chattels of the defendant the fum or debt recovered. This
lies as well againfl; privileged perfons, peers, ^c. as other
common perfons : and againfl executors or adminiftrators
with regard to the goods of the deceafed. The (heriff may
not break open any outer doors % to execute either this, or
the former, writ : but mull enter peaceably ; and may then
break open any inner door, belonging to the defendant, in
order to take the goods ^ . And he may fell the goods and
chattels (even an eftate for years, which is a chattel real ^)
of the defendant, till he has raifed enough to fatisfy the judg-
ment and cofts: firfl: paying the landlord of the premifes
upon which the goods are found, the arrears of rent then
due, not exceeding pne year's rent in the whole (4). If part
only of the debt be levied on a fieri facias.^ the plaintiff may
have a capias ad Jatisfaciendum for the refidue >.
3. A THIRD fpecies of execution is by writ of levari fa*
cias i which affects a man's goods and \\\z profits of his lands,
by commanding the fheriff to levy the plaintiff's debt on the
lands and goods of the defendant ; whereby the fheriff may
feife all his goods, and receive the rents and profits of his
lands, till fatisfa^lion be made to the plaintiff*^. Little ufe
is now made of this writ ; the remedy by elegit^ which takes
r 418 3 poffeffionof the lands themfelves, being much more effedlual.
But of this fpecies is a writ of execution proper only to ec-
^ Append. No III. 7. Stat. 8 Ann. c. 14.
5= 5 Rep. 9Z. " I Roll. Abr. 904. Cro. Eliz. 344.
y Palm. 54. * Finch. L. 471.
* 8 Rep. 1 71.
(4) But the landlord mull make a demand of the rent due be*
fore the goods are removed, or he cannot have the benefit of the
ftatute. I Str. 97. If the fheriff in levying an execution has any
doubt whether the goods fhewn him are the property of the de-
fendant, he may fummon a jury, and if the jury find them to be
the defendant's property, the fheriff is indemnified. 4 T. R. 633,
clefiafiics ^
Cli. 26. Wrongs. 4tS
clefiaftics ; which is given when the flieriff, upon a common
writ of execution fued, returns that the defendant is a bene-
ficed clerk, not having any lay fee. In this cafe a writ goes
to the bifliop of the diocefe, in the nature of a kvari ox fieri
f/tcias^^ to levy the debt and damage de binis ecclejlafluis^
which are not to be touched by lay hands : and thereupon
the bifhop fends out 7^ fe que ft ratio n oi the profits of the clerk's
benefice, directed to the churchwardens, to coUeft the fame,
and pay them to the plaintiff, till the full fum be raifed '.
4. The fourth fpecies of execution is by the writ of ile-
git ; which is a judicial writ given by the flatute Weftm. z
13 Edw. I. c. 18. either upon a judgment for a debt, or da-
mages ; or upon the forfeiture of a recognizance taken in the
king's court. By the common law a man could only have
fatisfadlion of goods, chattels, and the prefent' profits of
lands, by the two lad mentioned writs of Jiert facias^ or le-
vari facias ; but not the pofl'elTion of the lands themfelves ;
which was a natural confequence of the feodal principles,
which prohibited the alienation, and of courfe the incum-
bring of the fief with the debts of the owner. And, wheu
the re(lri6bion of alienation began to wear away, the confe-
quence ftill continued ; and no creditor could take the
pofleffion of lands, but only levy the growing profits: fo
that, if the defendant aliened his lands, the plaintiff was
oufted of his remedy. The flatute therefore granted thi*
writ, (called an ekgit^ becaufe it is in the choice or election
of the plaintiff whether he will fue aK>t this writ or one of
the former,) by which the defendant's goods and chattels arc
not fold, but onlyappraifed i and all of them (except oxen
and beads of the plough) are delivered to the plaintiff, at fuch
reafonable appraifement and price, in part of fatisfa(3ion of
his debt. If the goods are not fufficient, then the moiety or
one half of his freehold lands, which he had at the time of tlie
judgment given ^, whether held in his own name, or by any
other in trufl for him s, are alfo to be delivered to the plain- r 415 3
tiff"; to hold, till out of the rents and profits thereof the debt
"fte^j/Jr. oW^.jco ;(/(>. 21. i I rjft ^j. ^ 1 Inft. 395.
* a Barn. eccl. V>w. JZ9. > Stac. 29 Car. II. c, 3.
be
419
Private
Book IIL
be levied, or till the defendant's intereft be expired ; as, till
the death of the defendant, if he be tenant for life or in tail.
During this period the plaintiff Is called tenant by elegit^ of
whom we fpoke in a former part of thefe commentaries''.
We there obferved that till this ftatute, by the antient com-
mon law, lands were not liable to be charged with, or feifed
for, debts ; becaufe by thefe means the connetion between
lord and tenant might be deftroyed, fraudulent alienations
might be made, and the fervices be transferred to be perform-
ed' by a ftranger : provided the tenant incurred a large debt,
fuf&cient to cover the land. And therefore, even by this fta-
tute, only one half was, and now is, fubjeft to execution ;
that out of the remainder fufficicnt might be left for the lord
' to diftrain upon for his fervices. And, upon the fame feodal
principle, copyhold lands are at this day not liable to be
taken in execution upon a judgment '. But, in cafe of a debt
to the king, it appears by magna carta^ r. 8. that it was al-
lowed by the common law for him to take pofleiFion of the
lands till the debt was paid. For, he, being the grand fu-
perior^and ultimate proprietor of all landed eftates, might feife
the lands into his own hands, if any thing was owing from
the vafal ; and could not be faid to be defrauded of his fer-
vices, when the oufter of the vafal proceeded from his own
command. This execution, or feifing of lands by elegit, is
of fo high a natifre, that after it the body of the defendant
cannot be taken : but, if execution can only be had of thq
goods, becaufe there are no lands, and fuch goods are not fuf-
ficicnt to pay the debt, a capias ad fatisfaciendum may then be
had after the elegit ; for fuch elegit is in this cafe no more in
efFeft than a Jieri facias]. So that body and goods may be
taken in execution, or land and goods; but not body and
land too, upon any judgnrent between fubje<Sl and fubjecl in
the courfc of the common law. But
5. Upon fome profecutions given by ftatute ; as in the
cafe of recognizances or debts acknowleged on ftatute mer-
r 420 3 chant, or ftatutes ftaple (purfuant to the ftatutes i3Edw. I.
de mercatoribuS) and 27Edw. III. c.g.)\ upon forfeiture of
^ Bock II. ch. 10. ' 1 RoU, Abr. 288. J Hob. 58.
thefe
Ch. 26. Wrongs. 420
thefe, the body, lands, and goods, may all be taken at once
ill execution, to compel the payment of the debt. The pro-
cefs hereon is ufually called an extent or extendi facias^ be
caufe the (herifF is to caufe the lands, l^c. to be appraifed to
their full extended value, before he delivers them to the
plaintiff, that it may be certainly known how foon the debt
will be fatisfied''. And by ftatute 33 Hen. VIII. c. 39. all
obligations made to the king (hall have the fame force, and
of confequence the fame remedy to recover them, as a ftatute
ftaple : though indeed, before this ftatute, the king was In-
titled to fue out execution againft the body, lands, and goods
of his accountant or debtor ^ And his debt (hall, in fulng
out execution, be preferred to that of every other creditor,
who hath not obtained judgment before the king commenced
his fuit"*(5). The king's judgment alfo affects all lands, which
the king's debtor hath at or after the time of contradling his
debt, or which any of his officers mentioned in the ftatute
13 Eliz. C.4. hath at or after the time of his entering on the
office : fo that, if fuch officer of the crown aiienes for a valu-
able confider;ition, the land fhall be liable to the king's debt,
even in the hands of a bona fide purchafor ; though the debt
due to the king was contracted by the vendor many years
after the alienation ". Whereas judgment between fubjel
and fubjet related, even at common law, no farther back [ 421 ]
than the firft day of the term in which they were recovered,
in refpet of the lands of the debtor j and did not bind his
goods and chattels, but from the date of the writ of execu-
tion : and now, by the ftatute of frauds, 29 Car. 11. c. 3.
the judgment (hall not bind the land in the hands of a bona
"F. N. B. 131, " Stat. 33 Hen. VIII. c. 39. 74. 1
3 Rep, i. " JO Rep. 55, 56.
(5) ^^ goods arc taken in execution by the fhcnfT on ^ fieri
facias againfl the king's debtor, and before they arc fold, an ex-
tent at the king's fuit ilfues upon a bond given to the crown, which
extent bears date or tejle after the delivery of the fieri facias to the
fheriff, the execution upon xXie fteri fiacias (hall be completed, and
fliall not be defeated by the extent. 4 T, R. 402.
Vot. III. Hh fidt
421 Private Book III.
fide purchafor, but only from the day of a(3:ually fignlng the
fame ; which is diredled by the ftatute to be punftually en-
tered on the record : nor (liall the writ of execution bind the
goods in the hands of a ftranger, or a purchafor , but only
from the adlual delivery of the writ to the Iheriff or other
officer, who is therefore ordered to endorfe on the back of it
the day of his receiving the fame.
These are the methods which the law of England has
pointed out for the execution of judgments : and when the
plaintiff's demand is fatisfied, either by the voluntary pay-
ment of the defendant, or by this compulfory procefs, or
otherwife, fatisfation ought to be entered on the record, that
' the defendant may not be liable to be hereafter haraffed a
fccond time on the fame account. But all thefe writs of
execution muft be fued out within a year and a day after the
judgment is entered j otherwife the court concludes prima
facie that the judgment is fatisfied and extinft : yet however
it will grant a writ of fcire facias in purfuance of ftatute
422 ] Weftm. 2. 13 Edw. I. c. 45. for the defendant to fhew caufe
why the judgment fhould not be revived, and execution had
aigainft him ; to which the defendant may plead fuch matter
as he has to allege, in order to (hew why procefs of execution
(hould not be iffued ; or the plaintiff may ftill bring an action
of debt, founded on this dormant judgment, which was the
only method of revival allowed by the common law ?.
In this manner are the feveral remedies given by the Eng-
lifh law for all forts of injuries, either real or perfonal, ad-
miniftered by the feveral courts of juftice, and their refpe6live
officers. In the courfe therefore of the prefent volume we
have, firft, feen and confidered the nature of remedies, by
the mere al of the parties, or mere operation of law, with-
out any fuit in courts. We have next taken a view of reme-
dies by fuit or aftion in courts : and therein have contcm
plated, firft, the nature and fpecies of courts, inftituted for
the redrefs of injuries in general j and then have ftiewn in
what particular courts application muft be made for the rc-
f Skin. S57. P Co, Litt. 90|
dref
Ch. 26. Wrongs. 422
drefs of particular injuries, or the dolrine of jurIfdilions and
cognizance. We afterwards proceeded to confider the na-
ture and diftributlon of wrongs and injuries afFefting every
fpecies of perfonal and real rights, with the refpelive reme-
dies by fuit, which the law of the land has afforded for every
poflible injury. And, laftly, we have deduced and pointed
out the method and progrefs of obtaining fuch remedies in
the courts of juflice : proceeding from the firft general com-
plaint or original writ ; through all the ftages of procefsy tO
compel the defendant's appearance; and oi pleading, or for-
mal allfg3tton on the one fide, and excufe or denial on the
other ; with the examination of the validity of fuch complaint
or excufe, upon demurrer; or the truth of the fafts alleged
and denied, upon z^^^ joined, and it's feveral /r/a/x , to the
judgment or fentence of the law, with refpel to the nature and
amount of the redrefs to be fpecifically given : till, after con-
(idering the fufpenfion of that judgment by writs in the nature
of appeals, we have arrived at it's final execution , which puts
the party in fpecific pofleflionof his right by the intervention
of minifterial officers, or elfe gives him an ample fatlsfadlion, r ^jt 1
either by equivalent damages, or by the confinement of his
body who is guilty of the injury complained of.
This care and circumfpeftion in the Jaw, in providing
that no man's right (hall be afFe6led by any legal proceeding
without giving him previous notice, and yet that the debtor
(hall not by receiving fuch notice take occafion toefcape from
juftice i in requiring that every complaint be accurately and
precifely afcertained in writing, and be as pointedly and ex-
actly anfwered ; in clearly dating the queflion either of law
or of fa<l ; in deliberately refolving the former after full ar-
gumentative difcuflion, and indifputable fixing the latter by
a diligent and impartial trial ; in corre<fling fuch errors as
may have arifen in cither of thofe modes of decifion, from
accident, miftake, or furprize ; and in finally enforcing the
judgment, when nothing can be alleged to impeach it ; this
anniety to maintain and reitore to every individual the cnjoy-
II h 2 ment
423 Private Book III.
ment of his civil rights, without intrenching upon thofe o
any other individual in the nation, this parental folicitude
which pervades our whole legal conflitution, is the genuine
offspring of that fpirit of equal liberty which is the fingular
felicity of Engliflimen. At the fame time it muft be owned
tc have given an handle, in fome degree, to thofe complaints,
of delay in the praclice of the law, which are not wholly
without foundation, but are greatly exaggerated beyond the
truth. There may be, it is true, in this, as in all other de-
partments of knowlegc, a few unworthy profeflbrs : who ftudy
the fcience of chicane and fophiftry rather than of truth and
juftice ; and who, to gratify the fpleen, the difhonefty, and
wilfuhiefs of their clients, may endeavour to fcreen the
guilty, by an unwarrantable ufe of thofe means which were
intended to proteiSl the innocent. But the frequent difap-
pointments and the conftant difcountcnance, that they meet
with in the courts of juflice, have confined thefe men (to the
honour of this age be it fpoken)both in number and reputation
to indeed a very defpicable compafs.
Yet fome delays there certainly are, and muft unavoid-
ably be, in the conduct of a fuit, however defirousthe parties
r 424 1 and their agents may be to come to a fpeedy determination.
Thefe arife from the fame original caufcs as were mentioned
in examining a former complaint "^ ; from liberty, property,
civility,, commerce, and an extent of populous territory :
which whenever we are willing to exchange for tyranny, po-
verty, barbarifm, idlenefs, and a barren dcfart, we may then
enjoy the fame difpatch of caufes that is fo highly extolled in
fome foreign countries. But common fenfe and a little ex-
nerience will convince us, that more time and circumfpe6tion
are requifite in caufes, where the fuitors have valuable and
permanent rights to lofe, than where their property is trivial
and precarious, and what the law gives them to-day, may be
feifed by their prince to-morrow.' In Turkey, fays Monte-
fquieu % where little regard is fliewn to the lives or fortunes
'1 See pag. 317. ' Sp Lb. 6. cb. z,
4 of
Cfa. ^6. Wrongs. 424
of the fubjeft, all caufes are quickly decided : tKc baflia, on
a fummary hearing, orders which party he pleafes to be baf-
tinadoed, and then fends them about their bufinefs. But in
free dates the trouble, expenfe, and delays of judicial pro-
ceedings are the prise that every fubje^l pays for his liberty :
and in all governments, he adds, the formalities of law in-
creafe, in proportion to the value which is fet on the honour,
the fortune, the liberty, and life of the fubjedl.
From thefe principles it might reafonably follow, that the
Englifh courts fhould be more fubjel to delays than thofe of
other nations ; as they fet a greater value on life, on liberty,
and on property. But it Is our peculiar felicity to enjoy the
advantage, and yet to be exempted from a proportionable (hare
of the burthen. For the courfe of the civil law, to which
mod other nations conform their pra<flice, is much more
tedious than ours , for proof of which I need only appeal to
the fuitors of thofe courts in England, where the pra(flice of
the Roman law is allowed in it's full extent. And particu-
larly in France, not only our Fortefque ' accufes (on his own
knowlege) their courts of moft unexampled delays in admi-
niftering jufticc : but even a writer of their own* has not fcru-
pled to teltify, that there were in his time more caufes there
depending than in all Europe befides, and fome of them an r ^25 1
hundred years old. But (not to enlarge upon the prodigious
improvements which have been made in the celerity of juftice
by the difufe of real actions, by the flatutes of amendment
and jeofails v, and by other more modern regulations, which
it now might be indelicate to remember, but which poflerity
will never forget) the time and attendance afforded by the
judges in our Engli(h courts are alfo greater than thofe of
many other countries. In the Roman calendar there were in
the whole year but twenty- eight judicial or trivcrbial " days
allowed to the praetor for deciding caufes "^ : whereas, with
de Laud. LL. c. 55, licebat frarton fart tn'a verba, do, diCp
Dodin. de Republ. I. 6. c. 6. aJdko. (Ca!v. Ltx, 185.)
V See pag. 407. * Spelinan of the terms, 4. c. 2.
" Otherwife called dleiftifii in qulLus
H h 3 us,
425 Private Book HI.
us, one fourth of the year Is term time, in which three courts
conftantly fit for the difpatch of matters of law ; befides the
very clofe attendance of the court of chancery for determining
fuits in equity, and the numerous courts of aflife and nifi
prius that fit in vacation for the trial of matters of fa6l. In-
deed there is no other country in the known world, that hath
an inftitution fo commodious and fo adapted to the difpatch
of caufes, as our trials by jury in thofe courts for the decifion
of fats : in no otlTer nation under heaven does juftice make
her progrefs twice in each year into almoft every part of the
kingdom, to decide upon the fpot by the voice of the people
themfelves the difputes of the remoteft provinces.
And here this part of our commentaries, which regularly
treats only of redrefs at the common law, would naturally
draw to a conclufion. But, as the proceedings in the courts
of equity are very different from thofe at common law, and
as thofe courts are of a very general and extenfive jurifdiftion,
it Is in fome meafure a branch of the tafk I have undertaken,
to give the ftudent fome general idea of the forms of pra6lice
adopted by thofe courts. Thefe will therefore be the fubjec\
of the enfuing chapter.
B^HI^H^H'
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Gh, 27. Wrongs. 426
CHAPTER THE TWENTY-SEVENTH.
OF PROCEEDINGS in the
COURTS OF EQJJITY.
BEFORE we enter on the propofed fubjel of the en-
fuing chapter, viz. the nature and method of proceed-
ings in the courts of equity, it will be proper to recollet the
obfervations which were made in the beginning of this book *
on the principal tribunals of that kind, acknowleged by the
conftitution of England ; and to premife a few remarks upon
thofe particular caufes, wherein any of them claims and^
exercifes a fole jurifdidlion, diftindt from and exclufive of
the other.
I HAVE already '' attempted to trace (though very concife-
ly) the hiftory, rife, and progrefs, of the extraordinary court,
or court of equity, in chancery. The fame jurifdidion is
exercifed, and the fame fyftem of redrefs purfued, in the
equity court of the exchequer ; with a diftinftion however as
to fome few matters, peculiar to each tribunal, and in which
the other cannot interfere. And, firft, of thofe peculiar to
the chancery.
I. 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 extinguifhed in every feodal view ; but
Pf 45- 50- 78. '' P8- S> ^f-
H h 4 rcfultcd
4^7 P R I V A t E Boofc III.
refulted to the king In his court of chancery, together with
the general protelion'^ of all other infants in the kingdom.
When therefore a fatherlefs child has no other guardian, the
court of chancery has a right to appoint one ( i ) : and, from
all proceedings relative thereto, n appeal lies to the houfe of
lords. The court of exchequer can only appoint a guardian
ad litem, to manage the defence of the infant if a fuit be com-
menced againft him ; a power which is incident to the jurif-
dilion of every court of juftice'' : but when the intereft of a
minor comes before the court judicially, in the progrefs of
a caufe, or upon a bill for that purpofe filed, either tribunal
indifcriminately will take care of the property of the infant.
2. As to idiots and lunatics : the king himfelf ufed formerly
to commit the cuftody of them to proper committees, in every
particular cafe ; but now, to avoid folicitations and the very
/hadow of undue partiality, a warrant is iflued by the king "
under his royal fign manual to the chancellor or keeper of his
fcal, to perform this office for him : and, if he als impro-
perly in granting fuch cuftodies, the complaint mufl be made
to the king himfelf in council^ (2)- But the previous proceed-
ings on the commiffion, to inquire whether or no the party
be an idiot or a lunatic, are en the law- fide of the court of
chancery, and can only he redrefled (if erroneous) by writ
of error in the regular courfe of law.
3. The king, as parens patriae, has the general fuperin-
tendence of all charities ,- which he exercifes by the keeper of
his confcience, the chancellor. And therefore, whenever it
^ F. N. B. aj. ' S*e book. I. ch. 8.
" Cra. Jac. 641. 2 Lev. 163. T. ' 3 F. Wms. loB. See Reg. Br. 567.
Jones, qo.
( I ) And the court of chancery will appoint a guardian to an in-
fant, and allow him a fui:able maintenartce, on a petition, though
there fs no caufe depending. Ex parte Kent, 3 Bro. Chan. Rrp.
88. Ex parte Salta-, Ibid. SOQ. Ex parte Whitfuld, Z Jik. '},l$.
(?) See I vol. 303. n. (5).
is
Ch. 1']. Wrongs. 427
is necefiary, the attorney-general, at the relation of feme in-
formant, (who is ufually called the relatoi'y) files ex officio an
information in the court of chancery to have the charity pro-
perly eftablifhed. By ftatute alfo 43 Eliz. c. 4. authority is
given to the lord chancellor or lord keeper, and to the chan-
cellor of the duchy of Lancafter, refpelively, to grant com-
miflions under their feveral feals, to inquire into any abufes [ 428 3
of charitable donations, and rectify the fame by decree ;
which may be reviewed in the refpedlive courts of the feveral
chancellors, upon exceptions taken thereto. But, though
this is done in the petty bag office in the court of chancery,
becaufe the commiffion is there returned, it is not a proceed-
ing at common law, but treated as an original caufe in the
court of equity. The evidence below is not taken down in
writing, and the refppndent in his anfwer to the exceptions
may allege what new matter he pleafes ; upon which they go
to proof, and examine witnefles in writing upon all the mat-
ters in i/Tue : and the court may decree the refpondent to
pay all the cods, though no fuch authority is given by the
ftatute. And, as it is thus confidered as an original caufe
throughout, an appeal lies of courfe from the chancellor's
decree to the houfe of peers s, notwithftanding any loofe opi-
nions to the contrary''.
4. By the feveral ftatutes relating to hntihruptsy a fum-
xnary jurifdilion is given to the chancellor, in many mat-
ters confequential or previous to the commifTions thereby di-
reled to be ifiuedj from which the ftatutes give no ap-
peal (3).
On the other hand, the jurifdi<^ion of the court of chan-
cery doth not extend to fome caufes, wherein relief may be
Duke's char, ufes, 62. 128 Corporation of > 2 Vern. 118.
Burfoid v. Lcnthtfl. Cane. 9 May 1743.
(3) The fummary jurifdiftion of the court of equity, in cafes
of Bankrupt, muft be perfonally exercifedby the chancellor, lord-
Iccepcr, or the lords commiflioners of the great fcal. 2 Woodd.
had
42S
Private
Book III.
had in the exchequer. No Information can be brought, in
chancery, for fuch miftakt n charities, as are given to the
king by the ftatutes for fuppreffing fuperftitlous ufes. Nor
can chancery give any relief againft the king, or diredl any
aft to be done by him, or make any decree difpofing of or
afFefting his property ; not even in cafes where he is a royal
truftee* (4). Such caufes muft be determined in the court of
exchequer, as a court of revenue j vi^hich alone has power
[I 429 3 over the king's treafure, and the officers, employed in its ma-
nagement : unlefs where it properly belongs to the duchy
court of Lancafter, which hath alfo a fimilar jurifdikion as
2. court of revenue ; and, like the other, confifts of both a
court of law and a court of equity.
In all other matters, what is faid of the court of equity in
chancery will be equally applicable to the other courts of
equity. Whatever difference there may be in the forms of
practice, it arifes from the different conftitution of their ofE-
' Huggins V. York Buildings' Com-
pany . Cane. 240ft. 1 740. Reeve -r. At-
torney-general. Cane, zy Nov. 1741.
Ljghtboun v. Attorney-general. Cane
a May, 1743.
(4) " Where the rights of the crown are conGerned, If they
*' extend only to the fuperintendance of a public truft, as in the
* cafe of a charity, the king's attorney-general may be made a
*' party to fuftain thofe rights ; and in other cafes where the
** crown is not In.poffeffion, a title veiled in it is not impeached,
** and its rights only incidentally concerned; it has generally been
*' confidered, that the king's attorney-general may be made a
*' party in refpeft of thofe rights, and the praftice has been ac-
*' cordingly. (i P. Wms. 44?.) But where the crown is in
*' poffeffion, or any title is veiled in it which the fult feeks to di-
*< veil, or its rights are the immediate and fole objeft of the fuit,
*' the application muft be to the king, by petition of right, (Reeve
** againfl Attorney-general, mentioned in Penn 1;. lord Baltimore,
** I yef. 445, 446. ) upon which, however, the crown may refer
** it to the chancellor to do right, and may direl that the attorney-
* general fliall be made a party to a fuit for that purpofe. The
" queen has alfo the fame prerogative. (2 Roll. jibr. ii^'Y*
M'ttf, Treat, en PUad'wgs in Chan.
14 cers:
Ch. 27. Wrongs. 449
cers : or. If they differ in any thing more eflentlal, one of
them muft certainly be wrong ; for truth and juftice are al-
ways uniform, and ought equally to be adopted by them all.
Let us next take a brief, but comprehenfive, view of the
general nature oi equity, as now underftood andpratifed in
our feveral courts of judicature. I have formerly touched
upon it ^i but imperfectly : it deferves a more complete ex-
plication. Yet as nothing is hitherto extant, that can give
a flranger a tolerable idea of the courts of equity fubfilling
in England, as diftinguiftied from the courts of law, the
compiler of thefe obfcrvations cannot but attempt it with
diffidence ; thofe who know them bell, are too much em-
ployed to find time to write ; and thofe, who have attended but
little in thofe courts, muft be often at a lofs for materials.
Equity then, in its true and genuine meaning, is the
foul and fpirit of all law : pofttive law is conftrued, and ra-
tional law is made, by it. In this, equity is fynonymous to
juftice ; in that, to the true fcnfe and found interpretation
of the rule. But the very terms of a court of equity, and a
court oi law, as contrafted to each other, are apt to confound
and miflead us : as if the one judged without equity, and
the other was not bound by any law. Whereas every defini-
tion or illuftration to be met with, which now draws a line
between the two jurifdiftlons, by fetting law and equity in
oppofition to each other, will be found either totally erro-
neous, or erroneous to a certain degree. L 43 J
I. Thus in the firft place it is faid ', that it Is the bufi-
nefs of a court of equity in England to abate the rigour of
the common law. But no fuch power is contended for. Hard
was the cafe of bond-creditors, whofe debtor devifed away his
real eftate; rigorous and unjuft the rule, which put the de-
vifee in a better condition than the heir " : yet a court of
equity had no power to interpofe. Hard is the common
Jaw ftill fubfifting, that land devifed, or defcendingtotheheir,
' Vol. I. introd. ^ z 8e ^. aJ calc. 'See Vol- II. ch. 23. pag 378,
f Lord Kaims. princi of e^uit. 44.
(hall
43 ^ ^ 1 V A T Boofe III.
fhali not be liable to fimple contrail debts of the anceftor or
devifor'', although the money was laid out in purchafing
the very land ; and that the father fhall never immediately
fucceed as heir to the real eftate of the fon : but a court of
equity can give no relief-, though in both thefe inftances the
artificial reafon of the law, arifing from feodal principles, has
long ago entirely ceafcd. The like may be obferved of the
defcent of lands to a remote relation of the whole blood, or
even their efcheat to the lord, in preference to the owner's
half-brother P; and of the total flop to all juflice, by caufmg
the parol to dumur'^, whenever an infant is fued as heir or is
party to a real ation. In all fuch cafes of pofitive law, the
courts of equity, as well as the courts of law, mufl: fay with
Ulpian "", " hoc quidem her qiiam durum ejl^fed it a lexfcripta efi."
2. It is faid ', that a court of equity determines according
to the fpirit of the rule, and not according to the flrl^lnefs of
the letter. But fo alfo does a court of law. Both, for in-
ftarice, are equally bound, and equally profefs, to interpret
ftatutes according to the true intent of the legiflature. In ge-
neral laws all cafes cannot be forefeen ; or, if forefeen, can-
not be expFtfled ; feme will arife that will fall within the
|[ 431 } meaning, though not within the words, of the legiflator ; and
others, which may fall within the letter, may be contrary to
his meaning, though not exprefsly excepted. Thefe cafes,
thus out of the letter, are often faid to be within the equity,
of an acl of parliament ; and fo cafes within the letter are
frequently out of the equity. Here by equity we mean no-
thing but the found interpretation of the law ; though the
words of the law itfelf may be too general, too fpecial, or
otherwife inacrurate or dcfe<llive. Thefe then are the cafes
which, as Grotius ' fay?, *' lex tiofi exaRe definite fed arbitrio
" honi viri permit til ;" in order to find out the true fenfe and
meaning of the lawgivt.r, from every other topic of conftruc-
tion. But there is not a fingle rule of interpreting laws,
" See vol II. ch. 15. pag. 243^ 244. i See pag. 300.
ch. 2-?. pag. :,77. ' iy. 40. 9. 11.
" JliiJ. ch. 14. p.^g 208. ' Lord Kaims. princ of rqoit. 177,
Jhid. pag a2-. ' de aequitate, ^ 3.
whether
Ch. 27. Wrongs. 431
whether equitably or ftridly, that is not equally ufed by the
judges in the courts both of law and equity : the conftruiflion
mull in both be the fame : or, if they diiFer, it is only as one
court of law may alfo happen to difFer from another. Each
endeavours to fix and adopt the true fenfe of the law in quef-
tion i neither can enlarge, diminilh, or alter, that fenfe in a
fingle title.
3. Again, it hath been faid ", that frauds accident^ and
truji are the proper and peculiar objedis of a court of equity.
But every kind oi fraud is equally cognizable, and equally ad-
verted to, in a court of law : and fome frauds are congniz-
able only there ; as fraud in obtaining a devife of lands, which
is always fent out of the equity courts to be there deter-
mined. Many accidents are alfo fupplied in a court of law ;
as, lofs of deeds, miftakes in receipts or accounts, wrong
payments, deaths which make It impoflible to perform a con-
dition literally, and a multitude of other contingencies:
and many cannot be relieved even in a court of equity ; as,
if by accident a recovery is 111 fuffered, a devife ill exe
cuted, a contingent remainder deftroyed, or a power of leafing
omitted In a family fettlement. A technical trujl^ indeed,
created by the limitation of a fecond ufe, was forced into
the courts of equity, in the manner formerly mentioned* : [ 43* 3
and this fpecies of trufts, extended by inference and conftruc-
tlon, have ever fince remained as a kind oi peculium In thofe
courts. But there are other trufts, which are cognizable in
a court of law : as depofits, and all manner of bailments ;
and efpecially that implied contral:, fo highly beneficial and
ufeful, of having undertaken to account for money received
to another's ufe *, which is the ground of an aftion on the
cafe almofl as univerfally remedial as a bill in equity.
4. Once more ; it has been faid that a court of equity is
not bound by rules or precedents, but acls from the opinion
of the judge \ founded on the circumftances of every parti-
I Rol. Abr. 374. 4lnft. S4. 10 * See pag. 163,
Mod. I. ^ Tl.is is P.ated by Mr. Sdden (Tj-
* Book. II. ch. ?.c, ble-talk, tit. ecjuit,) with more piea-
- " fiJitry
43^
Private
Book III.
cular cafe. Whereas the fyftem of our courts of equity is a
laboured connefted fyftem, governed by eftablifhcd rules,
and bound down by precedents, from which they do not de-
part, although the reafon of fome of them may perhaps be
liable to objection. Thus the refufing a wife her dower in
a truft-eftate % yet allowing the hufband his curtefy ; the!
holding the penalty of a bond to be merely a fecurity for the
debt and intereft, yet confiderlng it fometimes as the debt it-
felf, fo that the intereft (hall not exceed that penalty * (5), the
diftinguifhing between a mortgage at _^ve per cent, with a
claufe of reduction to four, if the intereft be regularly paid,
and a mortgage zt four per cent, with a claufe of enlargement
tofivey if the payment of the intereft be deferred; fo that the,
former Ihall be deemed a confcientious, the latter an unright-
eous, bargain ^ : all theTe, and other cafes that might be In-^
ftanced, are plainly rules of pofitive law; fupported only by
r 4"?^ T the reverence that is ftiewn, and generally very properly
{hewn, to a feries of former determinations ; that the rule
of property may be uniform and fteady. Nay, fometimes a
precedent is fo ftriftly followed, that a particular judgment,
founded upon fpecial circumftances =, gives rife to a general
rule.
In fhort, if a court of equity in England did really ad,
as many ingenious writers have fuppofed it (from theory)
to do, it would rife above all law, either common or fta-
tute, and be a moft arbitrary legiflator in every particular
cafe. No wonder they are fo often miftaken. Grotius,
or Puffendorf, or any other of the great mafters of juiifpru-
dence, would have been as little able to difcover, by their
" foot, a third an indifferent foot. It
" is the faoie thing with the chancel-
' lor's confcience"
* a P. Wms. 640 . See vol I!. pag
fantry than truth. " For U^, we have
*' a mcafure, and know wffat to truft
* to : equity is according to the confci-
ence of him that is chancellor ; and,
as that is larger or narrower, fo is
squity. 'Tis all one, as if they fhould
' make the ftar.dard for the meafure a
" chancellor's foot. What an uncertain
* meafure would this be I One chancel-
" cellor has a long foot, another a fhort
337-
Salk. 154.
^ 2 V-ern. 289. 316. 3 Atk, 520.
' See the cafe of Fofter and Munt,
I Vern. 473. with regard to the undif-
pofed refiduum of perfonal eftates.
(5) See 2 vol. 341. n. (i6).
OMrn
Ch. 27. Wrong s, 433
own light, the fyflem of a court of equity in England, as the
fyftem of a court of law : efpecially, as the notions before-
mentioned, of the charater, power, and praftice of a court
of equity, were formerly adopted and propagated (though not
with approbation of the thing) by our principal antiquaries
and lawyers ; Spelman ^, Coke *, Lambard ^ and Seldon s,
and even the great Bacon himfelf. But this was in the in- ^
fancy of our courts of equity, before their jurifdition was
fettled, and when the chancellors themfelves, partly from
theirignoranceof law, (being frequently bifhops or ftatefmen,)
partly from ambition and lull of power, (encouraged by the
arbitrary principles of the age they lived in,) but principally
from the narrow and unjuft decifions of the courts of law,
had arrogated to themfelves fuch unlimited authority, as hath
totally been difclaimed by their fucceflbrs for now above a cen-
tury pad. The decrees of a court of equity were then rather
in the nature of awards, formed on the (addcn pro re natat
with more probity of intention than knowlege of the fubjel:;
founded on no fettled principles, as being never defigned, [ 434 1
and therefore never ufed, for precedents. But the fyftems
of jurifprudcnce, in our courts both of law and equity, are
now equally artificial fyftems, founded in-the fame principles
of juftice and pofitive law ; but varied by different ufages in
the forms and mode of their proceedings : the one being ori-
ginally derived (though much reformed and improved) from
the feodal cuftoms, as they prevailed in different ages in the
Saxon and Norman judicatures; the other (but with equal '
improvements) from the imperial and pontifical formularies,
introduced by their clerical chancellors.
The fuggeftion indeed of every bill, to give jurlfdilion
to the courts of equity (copied from thofe early times) is '
that the complainant hath no remedy at the common law.
^ Quae \n ^umrnii tr\bunalibu% multi e- frout fuae vidtbitur frudtntiae, (Gloji.
legum canone de^ernunt judicei, folus (Ji io2>.)
rn etcegtrct) cobibet canccUariut cx arbi- ' See pag. 4, 55.
trio ; ntcalittr decreth tenetur Juae cur'iat ^ jircbtioti. 71, 7a, 73.
vel fui Ifjiut, quin, elucente nova ratione, ubifvfra,
reco^nojcat juat velucritf muttt tt dtiiat * Dt/iugm,Scicnt.i,2. (, 3-
But
434 Private Book. III.
But he who (hould from thence conclude, that no cafe is
judged of in equity where there might have been relief at
law, and at the fame time cads his eye on the extent and
variety of the cafes in our equity-reports, muft think the law
a dead letter indeed. The rules of property, rules of evi-
dence, and rules of interpretation in both courts are, or
lliould be, exadlly the fame : both ought to adopt the beft,
or muft ceafe to be courts of juftice. Formerly fome caufes,
which now no longer exift, might occafion a different rule
to be followed in one court, from what was afterwards
adopted in the other, as founded in the nature and reafon of
the thing : but, the inftant thofe caufes ceafed, the meafurc
of fubftantlal juftice ought to have been the fame in both.
Thus the penalty of a bond, originally contrived to evade
the abfurdity of thofe monkifti conftitutions which prohibited
taking intereft for money, was therefore very pardonably
confidered as the real debt in the courts of law, when the
debtor negleled to perform his agreement for the return of
the loan with intereft ; for the judges could not, as the law
then ftood, give judgment that the intereft (hould be fpeci-
fically paid. But when afterwards the taking of intereft be-
came legal, as the necefTary companion of commerce ', nay
after the ftatute of 37 Hen. VIII. c. 9. had declared the
t 435 3 tiebt or loan itfelf to be " the juft and true intent" for which
the obligation was given, their narrow-minded fuccefTors
ftill adhered wilfully and technically to the letter of the
antient precedents, ami refufcd to confjder the payment of
principal, intereft, and cofts, as a full fatisfadtion of the
bond. At the fame time more liberal men, who fate in the
courts of equity, conftrued the inftrument, according to it's
** juft and true intent," as merely a fecuiity for the loan :
in which light it was certainly underftood by the parties,
at Jeaft after thefe determinations ; and therefore this con-
ft.rulion fliould have been unlverfally received. So in
mortgages, being only a landed as the other is a perfonal
fccurity for the money lent, the paymeit of principal, in-
tereft, and cofts ought at any time, before judgment exe-
* Se? Vol. II. pa^. 456.
Gh. 27* Wrongs, 435
cutedj to have faved the forfeiture in a court of law, as well
as in a court of equity. And the inconvenience as well
as injuftice, of putting different conftrudlions in different
tourts upon one and the fame tianfation, obliged the par-
liament at length to interfere, and to direl by the ftatutes
4 & 5 Ann. c. 16. and 7 Geo. II. c. 20. that, in the cafes
of bonds and mortgages, what had long been the pralice of
the courts of equity (hould alfo for the future be univerfally
followed in the courts of law, wherein it had before thefe
ftatutes in fome degree obtained a footing J.
Again j neither a court of equity nor of law can vary
men's wills or agreements, or (in other words) make wills
or agreements for them. Both are to underiland them truly,
and therefore both of them uniformly. One court ought not
to extend, nor the other abridge, a lawful provifion delibe-
rately fettled by the parties, contrary to its juft intent. A
court of equity, no more then a court of law, can relieve
againfl: a penalty in the nature of ftated damages ; as a rent
of 5 /. au acre for ploughing up antient meadow ^ ; nor
againft a lapfe of time, where the time is material to the
contrat ; as in covenants for renewal of leafes. Both courts
will equitably conftrue, but neither pretends to control or
change, a lawful Ilipulation or engagement.
The rules of deciGon are in both courts equally appofite [ 495 l
to the fubjefts of which they take cognizance. Where the
fubjedl matter is fuch as requires to be determined fecundurn
aequum et honum^ as generally upon aclions on the cafe, the
judgments of the courts of law are guided by the mod libe-
lal equity. In matters of pofitive right, both courts mult
fubmit to and fqllow thofe antient and invariable maxims
*' quae feliclafuni et tradita^" Both follow the law of na-
tions, and ccllecl it from hidory and the mod approved au-
thors of all countries, where the queftion is the obje<ft of
Jz Keb. 553. 555. Salk. 597. dkere debfinui ; dt jure pofutt SeMam,
6 Mod. II. 60. I0^. fuae reLiia funt et tradiu. (Cic. d4
^ 2 Atk. 239. Leg. I. 3. adcak )
^ De jure naturae cogttgrt^er nes atque
Vol. III. I i that
'43^ Private Book III.
that law : as in cafe of the privileges of embafladors "",
hoftages, or ranfom- bills " (6). In mercantile tranfalions they
follow the marine law ^, and argue from the ufages and au-
thorities received in all maritime countries. Where they ex-
ercife a concurrent jurifdi<Slion, they both follow the law of
the proper yirttw; P.* in matters originally of ecclefiaftical
cognizance, they both equally adopt the canon or imperial
law, according to the nature of the fubjefl i ; and, if a quef-
tlon came before either, which was properly the obje61: of a
foreign municipal law, they would both receive information
what is the rule of the country ; and would both decide ac-
cordingly.
Such theri being the parity of law and reafon which go-
verns both fpecies of courts, wherein (it may be alked) does
their eflential difference confifl ? It principally confifts in
the different modes of adminiftering juftice in each; in the
mode of proof, the mode of trial, and the mode of relief.
Upon thefe, and upon two other accidental grounds of ju-
rifdiclion, which were formerly driven into thofe courts by
narrow decifions of the courts of law, viz. the true con-
ftruilions of fecurities for money lent, and the form and ef-
[ 437 ] fedl of a truft orfecond ufe ; upon thefe main pillars hath
been gradually ereled that flru6ture of jurifprudence, which
prevails in our courts of equity, and is inwardly bottomed
upon the fame fubftantial foundations as the legal fyftem
which hath hitherto been delineated in thefe commentaries ;
however different they may appear in their outward form,
from the different tafte of their archite6ls.
I; And, firft, as to the mode oi proof . When facls, or
their leading circumftances, reft only in the knowlege of the
party, a court of equity applies itfelf to his confcience, and
"" See vol. I. page 253. 459. 4.61. 467,
" Ricord v. Bettenham. Tr, 5 Geo. ' See vol. II. page 513.
III. B. R. s Ibid. 504.
o See vol. I. page 75. vol. II. page ^ Ibid. 463.
(6) By the 22 Geo. III. c. 25. all contradls for the ran-
^ . fom of a captured fliip, or the goods on board, are rendered abfo-
lutely void.
15 purges
Ch. 27. Wrong s. 437
purges him upon oath with regard to the truth of the tranf-
aftion ; and, that being once difcovered, the judgment is the
fame in equity as it would have been at liw. But, for want
of this difcovery at law, the courts of equity have acquired a
concurrent jurifdidlion with every other court in all matters
of account'. As incident to accounts, they take a concur-
rent cognizance of the adminlftration of perfonal aflets*,
confequently of debts, legacies, the diftrlbution of the refi-
due, and the condudl of executors and adminiilrators ". As
incident to accounts, they alfo take the concurrent jurlf-
dition of tithes, and all queftions relating thereto*' ; of all
dealings in partnerfliip % and many other mercantile tranf-
adtions ; and fo of bailiffs, receivers, factors, and agents^. It
would be endlefs to point out all the feveral avenues in hu-
man affairs, and in this commercial age, which lead to or
end in accounts.
From the fame fruitful fource, the compulfive difcovery
upon oath, the courts of equity have acquired a jurlfdidlion
over almoft all matters of fraud ^ ; all matters in the private
knowlege of the party, which, though concealed, are bind-
ing in confcience ; and all judgments at law, obtained
through fuch fraud or concealment. And this, not by im-
peaching or reverfing the judgment Itfelf, but by prohibiting [ 438 3
the plaintiff from taking any advantage of a judgment, ob-
tained by fupprefhng the truth ^ ; and which, had the fame
fadls appeared on the trial, as now are difcovered, he would
never have obtained at all.
2. As to the mode of iria/. This Is by Interrogatories
adminifteredto the wltnefTes, upon which their depofitlonsare
taken In writing, wherever they happen to refide. If there-
fore the caufe arifes in a foreign country, and the wltnefTes
refide upon the fpot j if in caufes arifing in England, the
I Chan. Caf. 57. " 2 Vcrn. 638.
' 2 P. W" . 145. 2 z Chan. Caf. 46.
" 2 Chan. Caf. 152. 3P.Wms.i48.Year.book,22<i/uf.
* I Equ. Caf. abr. 367. fT. 37. fl. H.
'' a Vern. 277.
1 1 2 witnefles
45^ Private Book III.
Witnefles are abroad^ or {hortly to leave the kingdom ; or i
wltnefles refiding at home are aged or infirm; any of thefe
cafes lays a ground for a court of equity to grant a commif-
fion to examine them, and (in confequence) (7) to exercifc
the fame jurifdilion, which might have been exercifed at
. law, if the witnefles could probably attend.
3. "With refpefl to the mode of relief. The want of a
more fpecific remedy, than can be obtained in the courts of
law, gives a concurrent jurifdiction to a court of equity in a
'gr^at variety of cafes. To inflance in executory agreements.
A court of equity will compel them to be carried into ftridk
execution ^, unlefs where it is improper or impofiible ; in-
ftead of giving damages for their non- performance. And
hence a fiiftion is eftablifhed, that what ought to be done
Ihall be confidered as being aftually done% and fliall relate
back to the time when it ought to have been done origi-
nally : and this fidion is fo clofely purfued through all its
confequences, that it neceflarily branches out into many
rules of jurifprudence, which form a certain regular fyftem.
So, of wafte, and other fimilar injuries, a court of equity
takes a concurrent cognizance, in order to prevent them by
injunftion ''. Over queftions that may be tried at law, in a
^' "" '^ g^^3t multiplicity of actions, a court of equity aflumes a jurif-
[ 439 ] diction, to prevent the expenfeand vexation of endlefslitiga-
> Equ. Caf.abr. 16, "= 3 P- WinS.at5. [\ * t Ch. Rep. 14. 2 Chan. Caf. 32.
.- ' { 7 ) It is not corrcS:, that where a court of equity will grant a
-qoijiinilTion to examine witnefTcs, wjiofe attendance cannot be
procured to give teih'mony iu a court of common law, it will in
fuch cafe alfo grant relief. For though it is very ufual to file a
bill praying a difcover}', and that a commiffion may be ifTued to
exaifiinev^^tnefres who live abroad, no doubt -can be entertained that
if the bill proceeded to pray vclief, and that relief was fuch as a
court of law was fully competent to adminiller, a demurrer to the
.bill: would hold, unkfs it was a cafe where the courts exercife a
concuiTcnt j urifdiftion.
tions
Ch. 27. Wrongs. 439
tions and fults*. In vatious kinds of frauds it aflumes a con-
current '^jurifdlcllon, not only for die fake of a dlfccvery^
but of a more extenfive and fpecific relief: as by fctting
afide fraudulent deeds 5, decreeing re-conveyances '', or di-
recting an abfolute conveyance merely to (land as a fecurity^
And thus, lallly, for tlie fake of a more beiieficial and com-
plete relief by decreeing a fale of lands'', a court of equity
holds plea of all debts, incumbrances, and charges, that may
affetSl it or id ue thereout.
4. The true conftruflion o^fecurliies for money lent is ano-
ther fountain of jurifiiiclion in courts of equity. When they
held the penalty of a bond to be the form, and that in fub-
ftance it was only as a pledge to fccure the repayment of the
fum bona fide advanced, with a proper compenfation for the
ufe, they laid the foundation of a regular feries of determi-
nations, which have fettled the dolrine of perfonal pledges
or fccurities, and aj'e equally applicable to mortgages of real-
property. The mortgagor continues owner of the land, the
mortgagee of the money lent upon it : but this owncrfiiip is
mutually transferred, and the mortgagor is barred from re-
demption, if, when called upon by the mortgagee, he dees
not redeem within a time limited by the court ; or he may
when out of pofleffion be barred by length of time, by analogy,
to the ftatute of limitations.
5. The form of a trujl, or fecond ufe, gives the courts of
equity an exclufive jurlfdifllon asto the fubject matter of all
fettlements and devifes in that form, and of all the long terms
created in the prefent complicated mode of conveyancing.
This is a very ample fource of jurifdiction : but the truft is
governed by very nearly the fame rules, as would govern the
cftate in a court of law', if no truilee was interpofed ; and,
by 3 regular pofitive fyftem eftablifhed in the courts of equity, [ 440 }
I Vwn. 308. Prcc. Chan. a6i. * i Vern. 157.
I P. Wms. 672. Stra. 404. ' 2 Vern. 84.
' 2 P. Wms. 156, k , iTqii. Caf. abr. -^'^.
1 Ypn. 3a. X P. Wms. 239. ' % \\ Wms- 6+5, 66S, 669.
I i 3 tllC .
440 Prtvate Book III.
the doflrine of trufts is now reduced to as great a certainty as
that of legal eftates in the courts of the common law.
These are the principal (for I omit the minuter) grounds
of the jurifdidtion at prefent exercifed in our courts of equity:
which differ, we fee, very confiderably from the notions en-
tertained by ftrangers, and even by thofe courts themfelves
before they arrived to maturity ; as appears from the princi-
ples laid down, and the jealoufies entertained of their abufe,
by our early juridical writers cited in a former " page j and
which have been implicitly received and handed down by
fubfequent compilers, without attending to thofe gradual
acceflions and dereli6lions, by which in the courfe of a cen-
tury this mighty river hath imperceptibly fliifted it's channel,
Lambard in particular, in the reign of queen Elizabeth,
lays it down ", that " equity {hould not be appealed unto,
^' but only in rare and extraordinary matters : and that a
** good chancellor will not arrogate authority in evefy com-
*^ plaint that (hall be brought before him, upon whatfoever
" fuggeftion : and thereby both overthrow the authority of
** the courts of common law, and bring upon men fuch a
** confufion and uncertainty, as hardly any man {hould know
** how or how long to hold his own aflured to him." And
certainly, if a court of equity were {till at fea, and {loated
upon the occafional opinion which the judge who happened
to pre fide might entertain of confcience in every particular
cafe, the inconvenience, that would arife from this uncer-
tainty, would be a worfe evil than any hard{hip that could
follow from rules too ftril and in{lexible. It's powers would
have become too-arbitrary to have been endured in a country
ike this , which boafls of being governed in all refpels by
law and not by will. But fince the time when Lambard
wrote, a fet of great and eminent lawyers ?, who have fuc-
celTiveiy held the great feal, have by degrees erefled the fyf-
tem of relief adminiftered by a court of equity into a regular
C 441 3 fcience, which cannot be attained without ftudy and expe-
m See p3ge433. 2 P. Wms. 685, 686..
, f Jnbeitn. 71. 73. S?e page 54, 55, 56.
rience,
Ch. 27. Wrongs. 441
rlenqe, any more than the fcience of law : but from whichj
when underftood, it may be known what remedy a fuitor is
entitled to expet, and by what mode or fuit, as readily and
with as much precifion, in a court of equity as in a court of
law.
It were much to be wiftied, for the fake of certainty, peace,
and juftice, that each court would as far as poflible follow the
other, in the beft and moft effeQual rules for attaining thofe
defirable ends. It is a maxim that equity follows the law ;,
and in former days the laws has not fcrupled to follow even
that equity, which was laid down by the clerical chancellors.
Every one, , who is converfant in our ancient books, knows
that many valuable improvements in the ftate of our tenures
(efpecially in leafeholds 1 and copyholds ') and the forms of
adminiftering juftice s, have arifen from this fingle rcafon,
that the fame thing was conftantly efFeled by means of a
fuhpoena in the chancery. And fure there cannot be a greater
folecifm, than that in two fovereign independent courts efta-
bliflied in the fame country, exercifing concurrent jurifdic-
tion, and over the fame fubjeft-matter, there (hould exift in
a fingle inftance two different rules of property, clafliing with
or contradicting each other.
It would carry me beyond the bounds of my prefent pur-
pofe, to go farther into this matter. I have been tempted to
go fo far, becaufe ftrangers are apt to be confounded by no-
minal diftintions, and the loofe unguarded expreflions to be
met with in the beft of our writers ; and thence to form
erroneous ideas of the feparate jurifditions now exlfting
in England, but which never were feparated in any other
country in the univerfe. It hath alfo afforded me an op-
portunity to vindicate, on tlie one hand, the juftice of our
courts of law from being that harfh and illiberal rule, which [ 442 3
many are too ready to fuppofeit; and, on theother, the juftice
of our courts of equity from being the refult of mere arbitrary
1 Gilbert of ejeflment 2. x BBc. Abr. i6o. Sec pag. ioo.
Bro. Abr. U ttnant ftr {i}>it. lo Liit. 77.
I i 4 opinion,
M2 Private ' Book III.
opinion, or an exerclfe of di^atorial power, which rides over
the law of the land, and corre6ls, amends, and controls it by
the loofe and fluluating dilates of the confcicnce of a fingle
judge. It is now high time to proceed to the practice of our
courts of equity, thus explained and thus underftood.
The rft commencement of a fuit in chancery is by pre-
ferring a bill to the lord chancellor in the flyle of a petition;
*' humbly complaining fheweth to your Lordfhip your orator
' AB. that, iafc." This is in the nature of a declaration
at common law, or a libel and allegation in the fpiritual
courts : fetting forth the circumftances of the cafe at length,
as, fome fr.ud, truft, or hardfhip ; "in tender confideration
*' whereof," (which is the ufual language of the bill,) " and
' for that your orator is wholly without remedy at the com-
" mon law," relief is therefore prayed at the chancellor's
hands, and alfo procefs of fubpoena againft the defendant, to
compel him to anfwer upon oath to all the matter charged in
the bill. And, if it be to quiet the pofleflion of lands, to (lay
wafte, or to ftop proceedings at law, an injunction is alfo
prayed, in the nature of an interdtSium by the civil law, com-*
^landing the defendant to eeafe.
This bill mud call all neceflary parties, however remotely
concerned in intereft, before the court ; otherwifc no decree
can be made to bind them ; and muft be figned by counfel,
?s a certificate of it's decency and propriety. For it mufl: not
contain matter either fcandalous or impertinent: if it does,
the defendant may refufe to anfwer it, till fuch fcandal or
impertinence is expunged, which is done upon an order to
refer it to one of the ofBcerspf the court, called a mafter in
f:hancery ; of whonrj there are in number twelve, including
the mafter of the rolls, all of whom, fo late as the reign
of queen Elizabeth, were commonly do<Slors of the civil
1^ 443 3 law % The rnaftcr is to examine the propriety of the bill :
and, if he reports it fcandalous or impertinent, fuch matter
jTjuft be (truck out, and the defendant ftiall have his cofts;
Sojith'j commonw. b, a. c. jz,
which
Ch. 27. Wrongs* 443
which ought of right to be paid by the counfel who Cgned
the bill.
Whem the bill is filed in the office of the fix clerks, (who
originally weje all in orders ; and therefore, when the confti-
tution of the court began to alter, a law ' was made to per-
mit them to marry,) when, I fay, the bill is thus filed, if an
uijundion be prayed therein, it may be had at various ftages
of thecaufe, according to the circumftancesof the c.ife(8). If
the bill be to (lay execution upon an opprelBve judgment,
and the defendant does not put in his anlwer within the ftated
time allowed by the rules of the court, an injuntSlion will
iflue of courfe : and, when the anfwer comes in, the in-
junlion can only be continued upon a fufficient ground ap-
pearing from the anfwer itfelf. But if an injunlion be
wanted to ftay wafle, or other injuries of an equally urgent
nature, then upon the filing of the bill, and a proper cafe
fupported by ofidavitSy the court will grant an injun6lion
immediately, to continue till the defendant has put in his
anfwer, and till the court fhall make fome farther order con-
cerning it : and, when the anfwer comes in, whether it fhall
then be ulflblved or continued till the hearing of the caufc, is
determined by the court upon argument, drawn from con-
fidering the anfwer and affidavit together.
But, upon common bills, as foon as they are filedj pro-
<:efs oi fuhpoena is taken out ; which is a writ commanding
the defendant to appear and anfwer to the bill, on pain of
jog/. But this is not all ; for, if the defendant, on fervicc
of the fttbpoenay does not appear within the time limited by
* Stat. 14 & 15 Hen. Vlll. c. 8.
(8) An injuution in the court of exchequer flays all further
proceedings, in whatever ftage the caufe may be ; but in chancery,
if a declaration be delivered, the party may proceed to judgment
rotwithftanding an injundtion, and execution id only flayed ; but if
no declaration has been delivered, all proceedings at law are re-,
ilraincd. T^Woodd.AfW.
5 t^ie
443 /Private Book III,
the rules of tl|e cpurjt, and plead, demur, or anfwer to the
bill, he is then faid to be in contempt ; and the refpeftive
procefles of contempt are in fucceflive order awarded againft
him. The firft of which is an attachment^ which is a writ
II 444 ] in the nature of a capias^ directed to the fherift, and com-
manding him to attach, or take up, the defendant, and bring
him into court. If the iherifF returns that the defendant
iton eji inventus^ then an attachment with proclamations iflues ;
which, befides the ordinary form of attachment, direls the
IherifF that he caufe public proclamations to be made,
throughout the county, to fummon the defendant, upon his
allegiance, perfonally to appear and anfwer. If this be alfo
returned with a non ejl inventus^ and he ftill flancis out in
. contempt, a commijfion of rebellion is awarded againil him, for
not obeying the king's proclamations according to his alle-
giance] and four commiflioners therein named, or any of
them, are ordered to attach him wherefoever he may be found
in Great Britain, as a rebel and contemner of the king's laws
and government, by refufing to attend his fovereign when
thereunto required : fmce, as was before obferved ", matters
of equity were originally determined by the king in perfon,
afilfted by his council 5 though that bufinefs is now devolved
upon his chancellor. If upon this commiflion of rebellion a
non eji inventus is returned, the court then fends zferjeani at
arms in queft of him ; and, if he eludes the fearch of the
ferjeant alfo, then zfequejlration iflues to feife all his perfonal
eftate, and the profits of his real, and to detain them, fub-
je6l to the order of the court. Sequeftrations were firft m-
troduced by fir Nicholas Bacon, lord keeper in the reign of
queen Elizabeth \ before which the court found fome iiiffi-
culty in enforcing it's procefs and decrees ^ After an Dider
for a fequeftration iflued, the plaintiff's bill is to be taken
pro confcjfoy and a decree to be made accordingly. So that
the fequeftration docs not feem to be in the nature of procefs
to bring in the defendant, but only intended to enforce the
performance of the decree. Thus much if the defendant
abfconds.
" pag- 5 ' Vern. 4ai.
If
Ch. 27. Wrongs. 444
If the defendant Is taken upon any of this procefs, he is
to be committed to the fleet, or other prifon, till he puts in
his appearance, or anfwer, or performs whatever elfe this
procefs is iffued to enforce, and alfo clears his contempts by ^ap 1
paying the cofts which the plaintiff has incurred thereby.
For the fame kind of procefs (which was alfo the procefs of
the court of liar- chamber till it's diflblution^) is iflued out
in all forts of contempts during tlie progiefs of the caufe, if
the parties in any point refufe or neglecl to obey the order of
court.
The procefs againft a body corporate is by dijlrlngas, to
diftrein them by their goods and chattels, rents and profits,
till they (hall obey the fummons or direl:ions of the court.
And, if a peer is a defendant, the lord chancellor fends a
letter mijfive to him to requeft his appearance, together with
a copy of the bill ; and, if he negledls.to appear, then he may
be ferved with a fuhpoena ; and, if he continues ftill in con-
tempt, a fequeftration iffues out immediately againft his lands
and goods, without any of the mefne procefs of attachments,
isfc. which are direled only againft the perfon, and there-
fore cannot affeft a lord of parliament. The fame procefs
iffues againft a member of the houfe of commons, except
only that the lord chancellor fends him no letter miffive.
The ordinary procefs before-mentioned cannot be fued out
till after fervice of the fuhpoenoy iai: then the contempt
begins ; otherwife he is not prefumed to have notice of the
bill : and therefore, by abfconding to avoid the fuhpoena, a
defendant might have eluded jufticc, till the ftatute 5 Geo. II.
c. 25. which enacts that, where the defendant cannot be
found to be ferved with procefs of fubpocna.^ and abfconds
(as is believed) to avoid being ferved therewith, a day (hall-
\iC appointed him to appear to the bill of the plaintiff; which
is to be inferted in the London gazette, read in the parifti
church where the defendant laft lived, and fixed up at the
" liKyta.Fttd. 195.
loyal
445 P R I V A T E Book III,
royal exchange ; and, if the defendant doth not appear upon
;hat day, the bill Ihall be taken pro confejpj.
But if the defendant appears regularly, and takes a copy
of the bill, he is nest to demur yplc'ad, or aufwer.
r 44.<5 J A pEMUPvRER In equity is nearly of tlie fame nature as
a demurrer in law ; being an appeal to the judgment of the
?ourt, whether the defendant (hall b<; bound to anfwer the
plaintiff's bill : -as, for want of fufficient matter of equity
therein contained ; or where the plaintiff, upon his own
ihewing, appears to have no right 5 or where the bill feeks a
difcovery of a thing which may caufe a forfeiture of any kind,
or may conviil a man of any criminal mif- behaviour. For
any of thefe caufes a defendant may demur to the bill. And
if, on demurrer, the defendant prevails, the plaintiff's bill
fliall be difmiffed : if the dem.urrer be over-ruled, the de-
fendant is ordered to anfwer,
A ?LEA may be either to ^htjiir'ifdiBhn ; (hewing that the
court has no cognizance of the caufe : or toJ.he per/o/i ; {hew-
ing fome difability iti the plaintiff, as by outlawry, excom-
jnunjcation, and tlie like: or it is in Ipar s fliewing fome
matter wherefore the plaintiff c^n demand no relief, as an
acl of parliament, a fine, a releafe, or a former decree. And
the truth of this plea the defendant is bound to prove, if put
upon it by the plaintiff. But as bills are often of a compli-
cated nature, and contain various matter, a man may plead
as to part, demur as to part, and anfwer to the refidue. But
no exceptions to formal mitiutiae in the pleadings will be here
allowed ; for the parties are at liberty, on the difcovery of
ny errors in form, to amend them *.
An anfwer is the moft ufual defence that is made to a
plaintiff's bill. It is given in upon oath, or the honour of
" E ctji court de chauncer'ic, home nc et ncm'i ex r'tgire juris. ( Dyverjiu tUs
ferra prejudice f>ar fpn fnifpleJying ou fur courts, edit i^^^. foL znb, z^Jm Bro^
fiefaut de forme, met Jolorque le 'fJ(rytedd jibr, t. Jurij'diB'wn, 50.)
fiafef^car ildeit agardcrfcUngue cenfciem.
a peer
Ch. 27. Wrongs. 44^
a peer or peerefs : but, where tliere are amicable defendants,
their anfwer is ufually taken without oath by confent of the
plaintiff- This method of proceeding is taken from the ec-
clefiaftical courts, like the reft of the practice in chancery :
for there, in alniofl: every cafe, the plaintifF may demand the
oath of his adverfary in fupply of proof. Formerly this was r 447 ^
done in thofe courts with compurgators, in the manner of
ur waging of law : but this has been long difufed ; and in-
ftead of it the prefent kind of purgation, by the fingle oath
of the party himfelf, was introduced. This oath was made
ufc of in the fpiritual courts, as well in criminal cafes of ec-
ciefiaftical cognizance, as in matters of civil right ; and it
wns then ufually denominated the oath ex officio : whereof the
high commiilion court in particular made a rnoft extravagant
and illegal ufe ; forming a court of inquifiiion, in v/hich all
perfons were obliged to anfwer,- in cafes of bare fufpicion,
if the commiflioners thought proper to proceed againft them
ex officio for any fuppofed ecclefiaftical enormities. But when
the high commllTion court was abollfhed by ftatute 16 Car. I,
c. II. this oath ex officio was aboliflied with it ; and it is
alfo enabled by ftatute 13 Car. II. ft. i. c. 12. " that it fliall
*' not be lawful for any bifhop or ecclefiaftical judge ia
" tender to any perfon the oath ex officio, or any other oath
*' whereby the party may be charged or compelled to confefs,
" accufe, or purge himfelf of any criminal matter." But
^his does not extend to oaths in a civil fuit, and therefore it
is ftill the practice, both in tlie fpiritual courts and in
equity, to demand the perfonal anfwer of the party himfelf
upon oath. Yet if in the bill any queftion be put, that
^ends to the difcovery of any crime, the defsndant may
thereupon demur, as was before obferved, and may refuf
to anfwer.
If the defendant lives within twenty miles of London, he
muft be fworn before one of the matters of the court : if far-
ther off, there may be a dedimus potrjiatem or commiflion to
take his anfwer in the country, where the commiflioners
adminifter him the ufual oath ; and then, the anfwer being
(ealed
447 Private Book IIL
fealed up, either one of the commiffioners carries it up to the
tourt ; or it is fent by a meflenger, who fwears he received
it from one of the commiffioners, and that the fame has not
been opened or altered fince he received it. An anfwer muft
be figned by counfel, and muft either deny or confefs all the
C 448 ] material parts of the bill; or it may confefs and avoid, that
is, juftify or palliate the fadls. If one of thefe is not done,
the anfwer may be excepted to for infufficiency, and the de-
fendant be compelled to put in a more fufficient anfwer. A
defendant cannot pray any thing in this his anfwer, but to
be difmifled the court : if he has any relief to pray againft the
plaintiff, he muft do it by an original bill of his own, which
15 called a crofs-lill.
After anfwer put in, the plaintiff upon payment of
cofts may amend his bill, either by adding new parties, or
new matter, or both, upon the new lights given him by the
defendant ; and the defendant is obliged to anfwer afrefh to
fuch amended bill. But this muft be before the plaintiff has
replied to the defendant's anfwer, whereby the caufe is at
ilTue ; for afterwards (9), if new matter arifes, which did not
exift before, he muft fet it iotthhy z fupplemental bilL There
may be alfo a bill of revivor, when the fuit is abated by the
death of any of the parties ; in order to fet the proceedings
again in motion, without which they remain at a ftand.
And there is likewife a bill of interpleader ; where a perfon "
who owes a debt or rent to one of the parties in fuit, but, till
the determination of it, he knows not to which, defires that
they may interplead, that he may be fafe in the payment.
In this laft cafe it is ufual to order the money to be paid into
court, for the benefit of fuch of the parties, to whom upon
hearing the court fhall decree it to be due. But this depends
upon circumftances ; and the plaintiff muft alfo annex an
(9) Where new matter arifes after liliag the bill, it cannot be
introduced into the fuit by amending the original bill, though iffue
is not joined, but muft be ftated in a fuppleniental bill. 3 yltk.
217. J Atk. 291.
affidavit
Gh. 27. Wrong s. 44&
affidavit to his bill, fwearing that he does not collude with
cither of the parties.
If the plaintiff finds fufficient matter confefled in the de-
fendant's anfwer to ground a decree upon, he may proceed
to the hearing of the caufe upon bill and anfwer only. But
in that cafe he muft take the defendant's anfwer to be true
in every point. Otherwife the courfe is for the plaintiff to
reply generally to the anfwer, averring his bill to be true,
certain, and fufScient, and the defendant's anfwer to be
direflly the reverfe ; which he is ready to prove as the court [ 449 ]
ttkiW award ; upon which the defendant rejoins, averring the
like on his fide ; which is joining iffue upon the fads in dif-
pute. To prove which fads is the next concern.
This is done by examination of wltnefTes, and taking their
depofttions in writing, according to the manner of the civil
law. And for that purpofe interrogatories are framed, or
queflions in writing ; which, and which only, are to be
propofed to, and aflced of, the witneffes in the caufe. Thefe
interrogatories mufl be (hort and pertinent: not leading
ones ; (as *' did not you fee this, or, did not you hear
*' that ?") for if they be fuch, the depofitions taken thereon
will be fuppreffcd and not fuffered to be read. For the pur-
pofe of examining witneffes in or near London, there is
an examiner's office appointed ; but, for fuch as live in
the country, a commiffion to examine witneffes is ufualiy
granted to four commiflioners, two named of each fide, or
any three or two of them, to take the depofitions there. And
if the witneffes refide beyond fea, a commiffion may be had
to examine them there upon their own oaths, and (if fo-
reigners) upon the oaths of flcilful interpreters. And it hath
been eftabliftiedy that the depofition of an heathen who be-
lieves in the Supreme Being, taken by commiffion in the mod
folemn manner according to the cuftom of his own country,
may be read in evidence.
y OmkhunJ v Barlcr, Atk. ai.
The
449 Private Book tit,
. The commlffioners are fworq to take the examinations
truljr and without partiality, and not to divulge them till
publifliedin the court of chancery; and their clerks are alfo
Sworn to fccrecy. The witneiTes are compellable by procef*
of fubpoenof as in the courts of common law, to appear ai:!-d
fubmic to examinationj And when their depofitions are
taken, they are tranfmitted to the court with the fame care
that the anfwer of a defendant is fent.
T 450 1 If witnefles to a difputatle fal are old and infirm, it is
Very uf'ual to file a bill to perpetuate the teflimony of thofe
witneiTes, although no fuit is depending ; for, it may be, a
man's antagonift only waits for the death of fome of them to
begin his fuit. This is moft frequent when lands are devlfed
by will away from the heir at law ; and the devifee, in order
(o perpetuate the teflimony of the witnefTes to fuch will, ex-
'hibits a bill in chancery againfl the heir, and fets forth the
will verbatim therein, fuggefling that the heir is inclined to
difpute its validity : and then, the defendant having anfwer-
ed, they proceed to ifTue as in other cafes, and examine the
witnefTes to the will ; after which the caufe is at an end,
without proceeding to any decree, no relief being prayed by
the bill : but the heir is entitled to his cofls, even though he
contefls the will. This is what is ufually meant by proving
a will in chancery,
\' When all the witnefTes are examined", then, and not be-
' fore, the depofitions may be publifhed, by a rule to pafs pub-
lication ; after which they are open for the infpeftion of a-ll
the parties, and copies may be taken of them. The caufe is
^then ripe to be fet down for hearing, which may be done at
the procurement of the plaintifF, or defendant, before either
the lord chancellor or the mailer of the rolls, according to
the difcretion of the clerk in court, regulated by the nature
: and importance of the fuit, and the arrear of caufes depending
before each of them refpetively. Concerning the authority
of the mailer of the rolls to hear and determine caufes, and'
>;is general power in the court of chancery, there were (not
many
Ch. 27. Wr o n g s. 450
many years fince) divers queftions and difputes very warmly
agitated ; to quiet which it was declared by ftatute 3 Geo. II.
ch. 30. that all orders and decrees by him made, except fuch
as by the courfe of the court were appropriated to the great
feal alone, (hould be deemed to be valid ; fubjedl neverthe-
lefs to be difcharged or altered by the lord chancellor, and
fo as they fhall not be inrolled, till the fame are figned by his
lordlhip. Either party may be fubpoena'd to hear judgment
on the day fo fixed for the hearing : and then, if the plaintiff [ 451 ]
does not attend, his bill is difmifled with cofts ; or, if the
defendant makes default, a decree will be made againfl him,
which will be final, unlefs he pays the plaintiff's cod of at-
tendance, and fhews good caufe to the contrary on a day ap-
pointed by the court. A plaintiff's bill may alfo at any time
be difmiffed for want of profecution, which is in the nature
of a nonfuit at law, if he fuffers three terms to elapfe without
moving forward in the caufe.
When there are crofs caufes, on a crofs bill filed by the
defendant againft the plaintiff in the original caufe, they are
generally contrived to be brought on together, that the fame
hearing and the fame decree may ferve for both of them. The
method of hearing caufes in court is ufually this. The par-
ties on both fides appearing by their counfel, the plaintiff's
bill is firft opened, or briefly abridged, and the defendant's
anfwer alfo, by the junior counfel on each fide : after which
the plaintiff's leading counfel flates the cafe and the matters
in iffue, and the points of equity arifing therefrom : and then
fuch depofitions as are called for by the plaintiff are read by
one of the fix clerks, and the plaintiff may alfo read fuch part
of the defendant's anfwer, as he thinks material or conve-
nient': and after this the reft of the counfel for the plaintiff
make their obfervations and arguments. Then the defend-
ant's counfel go through the !amc procefs for him, except
that they may not read any part of his anfwer ; and the coun-
* On a trial at law if the pl'n iff" the truth of the defendant's teftimony,
readi any part of the def.ndant's anfwer, and makes the whole of his aofwcr
lie mud rrad ihe whole of it: for by evidenc:.
resdiriK any of it be (hews a reliance en
Vol. IIL ^ k U\
45< Private Book III.
fel for the plaintiff are heard in reply. When all are heard,
the court pronounces the decree^ adjufting every point in de-
bate according to equity and good confcience ; which decree
being ufually very long;, the minutes of it are taken down,
and read openly incourtbytheregiftrar(9).Thematterofcofts
to be given to either party, is not here held to be a point of
right, out merely difcretionary (by the ftatute 17 Ric. II.
c. 6.) according to the circumftances of the cafe, as they ap-
[ 452 ] pear more or lefs favourable to the party vanquifhed. And
yet the ftatute 15 Henry VI. c. 4. feems exprefslyto direft,
that as well damages as cods fhall be given to the defendant,
if wrongfully vexed in this court.
The chancellor's decree is either interlocutory or final. It
very feldom happens that the firft decree can be final, or con-
clude the caufe ; for, if any matter of fa6l isftrongly contro-
verted, this'court is fo fenfible of the deficiency of trial by-
written depofitions, that it will not bind the parties thereby,
btit ufually directs the matter to be tried by jury, efpecially
fuch important fadls as the validity of a will, or whether A
is the heir at law to B, or the exiftence of a modus decimatidi
or real and immemorial compofition for tithes. But, as no
jury can be fummoned to attend this court, the fa6t is ufually
direfled to be tried at the bar of the court of king's bench or
at the afiizes, upon z feigned ijfue. For (in order to bringj
it there, and have the point in difpute, and that only, put in
iffue) an adion is brought, wherein the plaintiff by a fiction
declares that he laid a wager of 5 A with the defendant, that
A was heir at law to B; and then avers that he Is fo; and
therefore demands the 5 /. The defendant admits the feign-
ed wager, but avers that A is not the heir to B j and therc-
(9) It is not now the praftice for the regiftrar to read the minutes
of the decree openly in court ; but any party to the fuit may
procure a copy of them, and if there is any miflake, may move
to have them amended. But after a decree has been formally
drawn up and entered, no errors in it can be reftified on motloui
r by any other proceeding than rehearing the caufe.
upon
Ch. 27. Wrongs. 45a
upon that Iflue is joined, which is direled out ofcchancery to
be tried : and thus the verdift of the jurors at lawdetermines
the fal in the court of equity. Thtfe feigned' ifTues fecm
borrowed from t\it fponJi judicialis of the Romans * : and are
alfo frequently ufed in the courts of law, by cpnfent of the
parties, to determine fome difputed rights without the forma**
lity of pleading, and thereby to fave much time and expcnfe
in the dccifion of a Caufe (10).
So likewife, if a queftion of mfere law arifes in the courfe of
a caufe, as whether by the words of a will an eftate for life or
in tail is created, or whether a future interefl devifed by a tef-
tator fhall operate as a remainder or an executory decile, it is C453 3
the praciice of this court to refer it to the opin'ioh of the
judges of the court of king's bench or common pleas, upon a
cafe ft atcd for that purpofe ( 1 1 ) i wherein all the material faQs ^
Nota fft fpofifio judicialis'. fpcndeftit Heinec* Aitiquitat. I. 3, t. id. 3. Sf
" quingentosji meui'Jit f Jpondeo,Jituus Sigon. de judiciis. I. 21. />. 466. citat
'* _fit. E: tu qucquefpcndejrequingemoif ibid,
*< ftttuusfn fjpondeo, ni meut/t." Vidt
(10) The confent of the court ought ailfo to be previoufly ob- '
talned, for a trial of a feigned iflue without fiich confent is a
contempt, which will authorife the court to order the proceed-
ings to be flayed. 4 T. R. 402.
(11) In a late cafe, the matter of the rolls fitting for the lord
chancellor, diredled a cafe for the opinion of the court of king's
bench, faying, he thought he had authority fo to do when fitting
for the lord chancellor, though not when fitting at the rolls.
{Hortoa\. Whitaher, 2 Bro. Chfn. Ca. 88.) When a cafe is heard
before the mailer of the rolls fitting in his own court, on which
he wifhcs to have the opinion of a court of law, he dir.e<3; an
a6lion to be' commenced by the parties in a court of law in fucU
form, that the quellion on which he has a doubt may be decided in
that fuit, and fufpends his decree till the court oriaw has given
its judgment. The court of exchequer is both a coori'of law and
a court of equity (<yi5f a/if 43.) ; therefore if a queftion of mere
law arifes in the courfe of the exercife of its equitable jurifdidion,
the barons will decide upon it in that fuit^ without refrring it to
another jurifdidlioQ.
Kk2 are
453 Private Book III.
are admitted, and the point of law is fubmltted to their de-
cifion : who thereupon hear it folemnly argued by counfel on
both fides, and certify their opinion to the chancellor. And
upon fuch certificate the decree is ufually founded.
Another thing alfo retards the completion of decrees.
Frequently long accounts arc to be fettled, incumbrances and
debts to be inquired into, and a hundred little fadls to be
cleared up, before a decree can do full and fufficient jufticc
Thefc matters are always by the decree on the firfl: hearing
referred to a mafter in chancery to examine ; which exami-
nations frequently lad for years : and then he is to report the
fal:, as it appears to him, to the court. This report may
be excepted to, difproved, and over-ruled ; or otherwifc is
confirmed, and made abfolute, by order of the court.
When all iflues are tiled and fettled, and all references to
the mafter ended, the caufe is again brought to hearing upon
the matters of equity refervcd ; and a final decree is made :
the performance of which is inforced (if necefiary) by com-
mitment of the perfon, or fequeftration of the party's eftate.
Ahdif by this decree either party thinks himfelf aggrieved,
he may petition the chancellor for a rehearing ,- whether it
was heard before his lordlhip, or any of the judges, fitting
for him, or before the mafter of the rolls. For whoever
may have heard the caufe, it is the chancellor's decree, and
muft be figned by him before it is enrolled ^ j which is done
of courfe unlefs a rehearing be defired. Every petition for a
rehearing muft be figned by two counfel of character, ufually
C 454 J fuch as have been concerned in the caufe, certifying that they
apprehend the caufe is proper to be reheard. And upon the
rehearing all the evidence taken in the caufe, whether
read before or not, is now admitted to be read; becaufe it is
. the decree of the chancellor himfelf, who only now fits to
^ hear reafpps why it (hould not be enrolled and perfe6ied ; at
"* hicli time all omiffions of either evidence or argument may
* S:at, 3 Geo. II. ?. 30, Seep. 450.
be
'Ch. 27. W R o N s. 454
be fupplled "=. But, after the decree is once figned and en-
rolled, it cannot be reheard or reclified, but by bill of review*
or by appeal to the houfe of lords.
A BILL of review may be had upon apparent error in judg-
ment, appearing on the face of the decree j or, by fpecial
leave of the court, upon oath made of the difcovery of nevy
matter or evidence, which could not poffibly be had or ufed
at the time when the decree pafled. But no new evidence
or matter then in the knowlege of the parties, and which
might have been ufed before, ihall be a fufficient ground for
a bill of review.
An appeal to parliament, that is, to the houfe of lords, is
the dernier refort of the fubjet who thinks himfelf aggrieved
by an interlocutory order or final determination in this court:
and it is effeHed by petition to the houfe of peers, and not
by writ of error y as upon judgments at common law. This
jurifdidlion is faid * to have begun in 18 Jac. I. and it is cer-
tain, that the firft petition, which appears in the records of
parliament, was preferred in that year'; and that the firft
which was heard and determined (thoughthename of appeal
was then a novelty) was prefented in a few months after^:
both levelled againft the lord chance.llor Bacon for corrup-
tion, and other mifbehaviour. It was afterwards warmly
controverted by the houfe of commons in the reign of Charles
the fecond s. But this difpute is now at reft ; it being ob-
vious to the reafon of all mankind, that, when the courts of
equity became principal tribunals for deciding caufes of pro-
perty, a revifion of their decrees (by way of appeal) became
equally neceflary, as a writ of error from the judgment of a [ 1 r r "J
court of law. And, upon the fame principle, from decrees
of the chancellor relating to the commiflioners for the diflblu-
tion of chauntries, ^c. under the ftatute 37 Hen. VIII. c. 4.
(as well as for charitable ufes under the ftatute 43 Eliz. c. 4.)
Gilb. Rep. 151, I5Z. ' Lords'/rurn. 3. 11. laDec. i6ii
* Com. Journ. 13 Mar. 1704. Com. Jeurn. 19 Not, 1675, *'
f Lfitd*' Joura, 23 Mar. 1620. " Show. Fail. C. 81.
K k 3 n
455 Private Wrongs. Book III,
an appeal to the king in parliament, was always unqueftlon-
ably allowed '. But no new evidence is admitted in the houfe
of lords upon nny account j this being a diftinQ jurifdidtion'':
which difFrrs itvery conrulerabIyfromthofein{lances, wherein
the fame jurifdidt'on revifes and correts its own a<ils, as in
rehearings and bills of review. For it is a pralice unknown
to our law, (though conllantly followed in the fpiritual courts,)
when a fu perior court is reviewing the fentence of an infe-
rior, to examine the juftice of the former decree by evidence
that was never produced below. And thus much for the
general method of proceeding in the courts of equity.
} Puke's Charitable Ufes, 6%. f Gilb. Rep. 155, 556,
TH? END OF THE THIRD BOOK.
APPENDIX.
NL
Proceedings on a Writ <?/" Right Patent,
I, IVrit of Right patent in the Court Baron.
<IED1R(1P(S the fecond by the grace of God of Great
Briraiii, France, and Ireland king, defender of the faith,
and fo forth ; to Willoughby earl of Abingdon, greet-
ing. <IIe cqmmand you that without delay you hold full
right to William Kent efquire, of one mefTuage and twenty
acres of land with the appurtenances in Dorchefter, which he
claims to hold of you by the free fervice of orie penny yearly in
lieu of all fervlces, of which Richard Allen deforces him. And
iinlefs you fo do, let the ftieriff of Oxfordfhire do it, that we no
longer hear complaint thereof for defedl of right. C^fttiefg
ourfelf at Weftminfter, the twentieth day of Auguil, in the thir-
tieth year of our reign.
Pledges of prbfecution, [ KaS'lioe.
2. Writ of TOLT, to remove it into the Coonty Court.
Cljarlee Morton efquire, fheriff of Oxfordfhire, to John
Long, bailiff errant of our lord the king and of myfelf, greet-
K k 4 ing.
Ji APPENDIX.
N*I. ing. 'JBccaufe by the complaint of William Kent cfquire
perfonally prefent at my county court, to wit, on Monday the
iixth day of September in the thirtieth year of the reign of our
lord GhORGE tlie fecond by the grace of God of Great Britain,
France, and Ireland king, defender of the faith, and fo forth,
-at Oxford in the fhirehoufe there holden, I am informed, that
although he himfelf the writ of our faid lord the king of right
patent direfted to Willoughby earl of Abingdon, for this that
he fhould hold full right; to the faid William Kent of one mcf-
fuage and twenty acres of land with the appurtenances in Dor-
chefter within my faid county, of which Richard Allen deforces
him, hath brought to the faid Willoughby earl of Abingdon ;
yet, for that the faid Willoughby carl of Abingdon favoureth
the faid Richard Allen in this part, and hath hitherto delayed
to do fuU right according to the exigence of the faid writ, I
command you on the part of our faid lord the king, firmly en-
joinmg, that in your proper perfon you go to the court baron
of the faid Willoughby earl of Abingdon at Dcrcheiler afore-
faid, and take away the plaint, which there is between the
faid William Kent and Richard Allen by the faid writ, into my
county court to be next holden; and fummon by good fura-
moners the faid Richard Allen, that he be at my county.court
on Monday the fourth day of Odlober next coming at Oxford
in the fhirehoufe there to be holden, to anfwef to the faid Wil-
liam Kent thereof. And have you there then the faid plaint,
the fummoners, and this precept. (Bi\tzn in my county court
at Oxford in the fhirehoufe, the fixth day of September, in the
year aforefaid,
3. fVrit o/"PoNE, to rerngve it intg the court o/" Common Pi,eas
(15CB>1R(|>(J5 the fecond, by the grace of God of Great
Britain, France, and Ireland king, defender of the faith, and
fo forth, to the {heriff of Oxfor^ihire, greeting. Put, at the
requeft of William Kent, before our juftices at Weftminfter on
the morrow of All Souls, the plaint .which is in your county
tpurt by our writ of right, between the fiaid WilUam Kent de-
mandant
APPENDIX.
m
mandant, and Richard Allen tenant, of one mefluage and NI,
twenty acres of land with the appurtenances in Dorchefter ; and ' "v -
furamon by good fummoners the faid Richard Allen, that he be
then there, to anfwer to the faid William Kent thereof. And
kave you there the fummoners and this writ. (SUtttlcfe ourfelf at
Weftminfter, the tenth day of September, in the thirtieth year
of our reign.
^4. /Fr/V o/" Right quia Dominus remifit Ciiriam,
f<S)01R(15C the fecond, by the grace of God of Great
Britain, France, and Ireland king, defender of the faith, and
fo forth, to the (herifF of Oxfordfhire, greeting. ComtnanD
Richard Allen, that he jullly and without delay render unto
William Kent one mefluage and twenty acres of land with tibe
appurtenances in Dorchefter, which he claims to be his right
and inheritance, and whereupon he complains that the aforefaid
Richard unjullly deforces him. And unlefs he (hall fo do, and
if the faid William fhall give you fecurity of profecuting his claim,
then I'ummon by good fummoners the faid Richard, that he appear
before our juftiees at Weftminfter on the morrow of All Souls, to
/hew wherefore he hath not done it. And have you tl^re the
fummoners and this writ. Wiitmts ourfelf at Weftminfter, th
twentieth day of Auguft, in the thirtieth year of our reign.' Be-
caufe Willoughby earl of Abingdon, the chief lord of that fee,
hath thereupon remifed unto us his court.
pledges of ") John Doe, Summoners of the J John Den. Sh-n^lfTs
t'rofccution, 3 Rich. Roc. within-named Richard, "l Rich. Fea. Return.
is- rhe
NI.
iv APPENDIX.
$. The Recordy nvith Jivard of Battel.
|S>lca0 at Weftminfter before fir John Willis knight, and his
brethren, juftices of the bench of the lord the king at Weftmin-
fter, of the term of faint Michael in the thirtieth year of the reign
of the lord George the fecond, by the grace of God of Great
Britain, France, and Ireland king, defender of the faith, &c.
Couat.
Efplees,"
Defence*
Writ. Oxen, 1 ^lUtam l^cnt, efquire, by James Parker, his attorney,
to wit. 3 demands againft Richard Allen, gentleman, one mef-
fuage and twenty acres of land, with the appurtenances, in Dor-
chefter, as his right and inhentance, by writ of the lord the
Dom'inus re. k{ng of right, becaufe Willoughby earl of Abingdon the chief lord
mji c nam. ^f ^j^g^ f^g hath now thereupon remifed to the lord the king his
court. 3>-nD l23t)ereU{)On he faith, that he himfslf was fcifed of the
tenements aforefaid, with the appurtenances, in his demefne as of
fee and right, in the time of peace, in the time of the lord George
the firft late king of Great Britain, by taking the efplees thereof
to the value * [of ten fhillings, and more, in rents, corn, and
grafs-J And that fuch is his right he offers [fuit and good proof. J
9ntl the faid Richard Allen, by Peter Jones his attorney, comes
and defends the right of the faid WiUiam Kent, and his feifin,
when [and where it (hall behove him,] and all [that concerns it,]
and Svhatfoever [he ought to defend] and chiefly the tenements
aforefaid with the appurtenances, as of fee and right, [namely,
one mefluage and twenty acres of land, with appurtenances in
Dorchefter.J %\\Xi this he is ready to defend by the body of his
freeman, George Rumbold by name, who is prefent here in court
ready to defend the fame by his body, or in what manner foever the
court of the lord the king Ihall confider that he ought to defend.
And if any mifchance fhould befal the faid George (which God
defend) he is ready to defend the fame by another man who
[is bounden and able to defend it.] 25nD the faid William
Kent faith, that the faid Richard Allen unjuftly defends the
* N. B. The claufes between hooks, in this and the fubfequent numbers of
the ap|!er4ix, are uft!ly no othcrwifc expreffed in the records than by, an &c.
right
Wager of
Battel.
Keplica'
tion,
APPENDIX. T
right of hfm the faid William, and his feifin, ^e. and all, Effr. JJo J.
and whatfoever, ^c. and chiefly of the tenements aforefaid with ^ '> tJ
the appurtenances, as of fee and right, ^c. ; becaufe he faith,
that he himfelf was feifed of the tenements aforefaid, with the
appurtenances, in his demefne as of fee and right, in the time
of peace, in the time of the faid lord George the firft late
king of Great Britain, by taking the efplees thereof to the
alue, Cffr. Ulit) that fuch is his right, he is prepared to prove Joinder of
by the body of his freeman, Henry Broughton by name, who ^^^^^
IS prefent here in court ready to prove the fame by his body, or
in what manner foever the court of the lord the king (hall con-
fider that he ought to prove ; and if any mifchance ftiould befal
the faid Henry (which God defend) he is ready to prove the
feme by another man, who, ^c. UnD hereupon it is demanded
of the faid George and Henry, whether they are ready to make
battel, as they before have waged it ; who fay that they are.
9nT) the fame George Rumbold giveth gage of defending, and Gagei
the faid Henry Broughton giveth gage of proving ; and, fuch 6'*en.
engagement being given as the manner is, it is demanded of
the faid William Kent and Richard Allen, if they can fay any
thing wherefore battel ought not to be awarded in this cafe ;
who fay that they cannot. Cbcrefote it t0 COnfiUetet), that Award of
battel be made thereon, i^c 2JnU the faid George Rumbold p^'^^'*
findeth pledges of battel, to wit, Paul Jenkins and Charles
Carter ; and the faid Henry Brout^hton fiudcth alfo pledges of
battel, to wit, Reginald Read and Simon Taylor. 3nD tl)ere Continu-
m^On day is here given as well to the faid William Kent as to ance.
the faid Richard Allen, to wit, on the morrow of faint Martin
pcxt coming, by the affent as well of the faid William Kent as
of the faid Richard Allen. And it is commanded that each of
them then have here his champion, fufficiently furnifhed with
competent armour as becomes him, and ready to make the bat-
tel aforefaid : and that the bodies of them in the mean time be
fafely kept, on peril that (hall fall thereon. 9t which day here champion*
come as well the faid William Kent as the faid Richard Allen appear,
by their attorneys aforefaid, and the faid George Rumbold and
Henry Broughton in their proper perfons llkewife come, fuffi-
piently furniihed with competent armour as becomes them, ready
jp make the battel aforefaid, as they had before waged it.
3|n^
Ti APPENDIX.
N I. %nXi hereupon day is further given by* the court here, as well
%, ' to the faid William Kent as to the faid Richard Allen, at
Adjourn- Tothill near the city of Weftminftcr in the county of Middle-
^Ti/T ^^^' ^ ^'*' ^^ ^^^ morrow of the purification of the bleffed
Jkli. virgin Mary next coming, by the aflent as well of the faid Wil-
liam as of the aforefaid Richard, And it is commanded, that
each of them have then there his champion, armed in the form
aforefaid, ready to make the battel aforefaid, and that their
bodies in the mean time, i3c. At which day here, to wit, at
Tothill aforefaid, comes the faid Richard Allen by his attorney
aforefaid, and the faid George Rumbold and Henry Broughton
in their proper perfons likewife come, fufficiently furnifhed
with competent armour as becomes them, ready to make the
battel aforefaid, as they before had waged it. And the faid
Wilh'am Kent being folemnly called doth not come, nor hath
Denwndant profecutcd his writ aforefaid. Cfjetcfote it IS COtldDeretl, that
Bontuit. i^g famg William and his pledges of piofecuting, to wit, John
Doe and Richard Roe, be in mercy for his falfe complaint, and
Final iodg. *^3t the fame Richard go thereof without a day, (ffc. and alfo
sent, for that the faid Richard do hold the tenements aforefaid with the
enant. appurtenances, to him and his heirs, qyit of the faid WilUaw
and his heirs, for ever, Cffc.
6. Trial hy the grand AJpfe,
defence. ^"'^ the faid Richard Allen, by Peter Jones, his
attorney, comes and defends the right of the faid William
Kent,- and his feifin, when, (5*f. and all, Sjfr. and whatfoever,
fcff. and chiefly of the tenements aforefaid with the appurte-
nances, as of fee and right, Sffr. and puts himfelf upon the
grand aflife of the lord the king, and prays recognition to be
Mife. madej whether he himfelf hath greater right to hold the tene-
ments aforefaid with the appurtenances, to him and his heirs a's
tenants thereof as he now holdeth them, or the faid Williartj
to have the faid tenements with the appurtenances as he above
Tenier of dcmandeth them. ^nt> he tenders hre in court fix fhilKngs
^^ ' and eight-pence to the ufe of the lord the now king, l5t. foi:
ri ^" ' '' thai
APPENDIX. Yu
that, to wit,. It may be inquired of the time' f^oFthe feifin N L
alleged by the faid William.] And he therefore pra\s, tha^ ^ -\ f ^ *J
it may be inquired by the aflife) whether the faid William Kent
was fcifed of the tenements aforefaid with the appurtenances in
Ills demefne as of fee in the time of the faid lord the king
George the firft, as the faid William in his demand before
Lath alleged. Cl)ereforc it is commanded the fherifF, that he Summooj
fummon by good fummoners four lawful kniehts of his county. *'* ^^
' kaiehtfc
girt with fwords, that they be here on the oftaves of faint
Hilaiy next coming, to make eleftion of the aflife aforefaid.
The fame day is given as well to the faid William Kent as to
the faid Richard Allen here, Cs'c. At which day here come as
well the faid William Kent, as the faid Richard Allen ;' and
the (heriff, to wit, lir Adam Alftone knight now returns, thatR^tanu
he had caufed to be fummoncd Charles Stephens, Randal Whc-
ler, Toby Cox, and Thomas Munday, four lawful knights of
his county, girt with fwords, by John Doe, and Richard Roc
his bailiffs, to be here at the faid oftaves of faint Hilary, to do
as the faid writ thereof commands and requires ; and that the
faid fummoners, and each of them, are mainprized by John
Day and James Fletcher. Whereupon the faid Charles Ste-
phens, Randal Wheler, Toby Cox, and Thomas Munday, four
lawful knights of the county aforefaid, girt with fwotds, being
called, in their proper perfons come, and, being fworn, upon ica;onf
their oath in the prefence of the parties aforefaid chofc of the recof*
themfelves and others twenty- four, to wit, Charles Stephens, "*'""*
Randal Wheler, Toby Cox, Thomas 'Munday, Oliver Green-
way, John Boys, Charles Price, knights, Daniel Prince, Wil-
liam Day, Roger Lucas, Patrick Fleming, James Harris, Joha
Richardfon, Alexander Moore, Peter Payne, Robert Quin, Ar-
chibald Stuart, Bartholomew Norton, and Henry Davis, efquircs,
John Porter, Chriftopher Ball, Benjamin Robinfon, Lewis Long,
William Kirby, gentlemen, good and lawful men of the county
aforefaid, who neither are of kin to the faid William Kent nor
to the faid Richard Allen, to make recognition of the grand
aflife aforefaid. Cfecrcforc it is commanded the fheritf, tliat he f^ewt
caufe them to come here from the day of Eafter in fifteen days, /'*'^
to make the recognition aforfaid. The fame day is theic given
to the parlies aforefaid. At which day here come as well the
fii
viii APPENDIX.
K" I. faid William Kent as the faid Richard Aliens by their attorneys
^ ' - aforefaid, and the recognitors of the affife whereof mention is
above m:\de being called, come, and certain of them, to wit,
W^"''*''^ Charles Stephens, Randal Wheler, Toby Cox, Thomas Mon-
day, Charles Price, knights, Daniel Pr/nce, Roger Lucas, Wll-
Ham Day, James Harris, Peter Payne, Robert Quin, Henry
Davis, John Porter, Chriftopher Ball, Lewis Long, and Wil-
Verdi<a for Jjam Kirby., being elecled, tried, and fworn, upon their oath fay,
m dMt ^^^^ ^^^ '^ William Kent hath more right to have the tene-
ments aforefaid with the appurtenances to him and his heirs, a
he demandeth the fame, than the faid Richard Allen to hold the
fame as lie now holdeth them, according as the faid William
Ui inent. .Kent, by his writ aforefaid hath fuppoftd. Cljcrefote it iS
COnfiDeretl, that the faid William Kent do recover his feifin
againft the faid Richard Allen of the tenements aforefaid with
the appurtenances, to him and his heirs, quit of the faid Ri-
chard Allen and his heirs, for ever : and the faid Richard Allen,
in mercy, Ss'r.
NML
A P P E N D I X. IX
NII.
No II.
Proceedings on an A^ion of Trefpafs in Ejectment,
by Original^ in the King's Bench.
^ I . The Original Writ.
(^'^it>^^<B the fccond, by the gitce of God of Great Bri- Si/ecerU te
^"^ tain, France, and IreLind king, defender of the faith, arid fo/'^"^"'"'
forth; to the (her iff of Berkfhire, greeting. 3if Richard Smith
fhall give you fecurity of profecuting his claim, then put by
gage and fafe pledges Wilham Stiles, late of Newbury, gentle-
man, fo that he be before us on the morrow of All-Souls, where-
foever we (hall then be in England, to fhew wherefore with force
and arms he entered into one mefiuage with the appurtenances, in
Sutton, which John Rogers efquire, hath deraifed to the afore-
faid Richard, for a term which is not yet expired, and ejeftcd
him from his faid farm, and other enormities to him did, to the
great damage of the faid Ricliard, and againft our peace. And
have you there the names of the pledges, and this writ. C^lt-
nefs ourfelf at Weftminfter, the twelfth day of Oftober, in the
twenty-ninth year of our reign.
Tjij r-Ti,T-. The within-named 1 t t. tv e-
rledees or I John Doe. -tvn- o ! f John Den. siienff
c f D- V A \> William belles IS at- > ^,. . , ,, R^,Tri
proiecution, I Richard Koe. i j , , , (Richard I'cn. ^e^ur"*
' ' tacned by pledges, J
2. Copy of the Declaration again/l the cafual Ejectir ; tvho gives
Notice thereupon to the Tenant in Pojfejfion.
Michaelmas, the 29th of king George the fccood*
Berks, "l fl^illiam Stiles, late of Newbury in the faid county, E!lra-
to wit. > gentleman, was attached toanfwer Richard Smith, of
% plea, wherefore with force and arms he entered into one cacfs
fuage,
X APPENDIX.
N II. fuage, with the appurtenances, in Sutton in the county aforefaid,
*' -V ' which John Rogers cfquirc demifed to the faid Richard Smith
for a term which is not yet expired, and ejefted him from his
fard farm, and other wrongs to him did, to the great damage of
the faid Richard, and againft the peace of the lord the king, &c.
And whereupon the faid Ri<;hard by Robert Martin his attorney
complains, that whereas the faid John Rogers, on the firft day of
Odtober in the twenty-ninth year of the reign of the lord the
king that now is, at Sutton aforefaid, had demifed to the fame
Richard the tenement aforefaid, with the appurtenances, to have
and to hold the faid tenement, with the appurtenances, to the
faid Richard and his affigns, from the feaft of faint Michael the
archangel then la/l pail, to the end and term of five years from
thence next following and fully to be complete and ended, by
virtue of which demife the faid Richard entered into the faid
tenement, with the appurtenances, and was thereof poffeffed ;
and^ the faid Richard being fo pofTefled thereof, the faid Wil-
liam afterwards, that is to fay, on the faid firft day of Oftober in
the faid twenty -ninth year, with force and arms, that is to fay,
with fwords, ftaves, and knives, entered into the faid tenement,
with the appurtenances, which the faid John Rogers demifed
to the faid Richard in form aforefaid for the term aforefaid,
which is not yet expired, and ejefted the faid Richard out of his
faid farm, and other wrongs to him did, to the great damage of
the faid Richard, and againll the peace of the faid lord the
king; whereby the faid Richard faith, that he is injured and
damaged to the value of twenty pounds. And thereupon he
brings fult, &c.
Martin, for the plaintiff. "1 Pledges of f John Doe.
Peters, for the defendant. 3 profecution, \ Richard Roe.
Mr. George Saunders,
I am informed that you are in pofTefllon of, or claim title to,
the premifes mentioned in this declaration of cjeftment, or to
fome part thereof J and I, being fued'in this adion as a cafual
, ejeftor,
Notice.
APPENDIX. xi
>cjelor, and having no claim or title to the fame, do advife you j^j- jj^
to appear npxt Hilary term in his majefty's court of king's
bench at Weftminfter, by fome attorney of that court, and then
and there, by a rule to be made of the fame court, to caufe
yourfelf to be made defendant in my ftead ; otherwife I fliall
fijfFer judgment to be entered againft me, and you will be turned
out of pofTeflion.
Your loving friend,
William Stiles.
S January t 1756.
^3. The Rule of Court.
Hilary Termt in the twenty -ninth Tear of King George the
fecond.
Berks, \ 3Bt is OrtertT) by the court, by the aflent of both Smith
to wit. i parties, and their attorneys, that George Saunders, ^S|""t
gentleman, may be made defendant, m the place of the now one mei-
defendant William Stiles, and rtiall immediately appear to the ^'^'^Z'^ ^^'^'^
plaintiff's adllon, and (hall receive a declaration in a plea of .jj^j^^gj^jj
trefpafs and cjeftment of the tenements in queftion, and Ihall Sutton, on
immediately plead thereto, not guilty: and, upon the trial of ''^^ '^^'^*
the iffue, fhall confefs leafe, entr}--, and oiifter, and infill upon Rogers,
his title onl)'. And if, upon trial of the iffue, the faid George
do not confefs leafe, entry, and oufler, and by reafon thereof
the plaintiff cannot profecute his writ, then the taxation of cofta
upon fuch nonprof. fhall ceafe, and the faid George fliall pay
fuch cofls to the plaintiff, as by the court of our lord the king
here fliall be taxed and adjudged for fuch his default in non-per-
formance of this rule ; and judgment fhall be entered againil
the faid William Stiles, now the cafual ejeftor, by default. And
it is further ordered, that, if upon the trial of the faid ifTwe a
vcrdicl fhall be given for the defendant, or if the plaintiff fhdl
cot profecute his writ, upon any other caufe, than for the not
Vol. in. LI onfcfIing
xll APPENDIX.
N" II. confcfiing leafe, entry, and ouilcr as aforefaid, then the IclTor-
' of the plaintift Ihail pay colls, if the plaintiff hiinfeif doth nor
pay thehi.
By the Court.
Martin, for the plaiiitifF
Newman^ for the defendant.
J 4. The Record.
^Ica0 before the lord the king at Wedinlniler, of the ternf of
faint Hilary, in the twenty-ninth year of the reign of the lord
George the fccond, by the grace of God of Great Britain,
France, and Ireland king, defender of the faith, '^c.
Berks,") (i^cotgc Saunders, late of Sutton in the county afore*
to wit. J faid, gentleman, was attached to anfwer Richard
Smith, of a plea, wherefore with force and arms he entered
into one meffuage, with the appurtenances, in Sutton, which
John Roger G cfquire hath demifed to the faid Richard for a
terra which is not yet expired, and cjedled him from his faid
farm, and other wrongs to him did, to the great damage of the
faid Ricbard, and againll the peace of the lord the king that
Declaratlojj, now is. %X\Xi tt)l)Crcupon the faid Richard by Robert Martin
or count. j^jg attorney complain?, that whereas the faid John Rogers on
the firil day of October in the twenty-ninth year of the reign of
the lord the king that now is, at Sutton aforefaid, had demifed
to the fame Richard the tenement aforefaid, with the appur-
tenances, to have and to hold the faid tenement, with the appur-
tenances, to the faid Richard and his afiigns, from the feall of
- faint Michael the archangel then laft part, to the end and term
of five years from thence next following and fully to be com-
plete and ended; by virtue of which demife the faid Richard
, entered into the faid tenement, with the appurtenances, and was
thereof poffeffed : and, the faid Richard being fo pofleffed there-
of, the faid George afterwards, that is to fay, on the firfl day
of Odober in the faid twenty-ninth year, with force and arms,
that is to fay, with fwords, ftaves, Jiad knives, entered into the
*2 faid
APPENDIX. xlii
fald tenement, with the appurtenances, vvhicli the faid John N** III.
Rogers demifed to the faid Richard in form aforcfaid for tlie term '- ~~ -
aforefaid which is not yet expired, and ejefted the faid Richard
out o^ his faid farm, and other wrongs to him did, to ti;e gr^at
damage of the faid Richard, and againft the peace of the faid
lord the king ; whereby the faid Richard faith that he is injured
and endamaged to tlie value of twenty pounds ; and thereupon
he brings fuit, [and good proof,] 3lnD the aforefaid George Defence,
Saunders, by Charles Newman his attorney, comes and defends
the force and injury, when [and where it fhall behove Iiim ;]
and faith that he is no wife guilty of the' trefpafs and ejecl- piea, not
ment aforefaid, as the faid Richard above complains againd him ; s^^'^'y-
and thereof he puts himfcif upon the couiitr)' : and tlio faid I*^"^- '
Richard doth likewife the fame ; GIli;crefore let a jury come there-
upon before the lord the king, on the oclave of the purification ^^,v
of the blefled virgin Mary, wherefocver he fhall then be in Eng- awaided.
land ; who neither [are of kin to the faid Richard, nor to the
faid George ;] to recognize [whether the faid George be guilty
of the trefpafs and ejectment aforefaid:] bccaufe as well [tlie
faid George, as the faid Richard, between whom the difFerence
is, have put themfelves on the faid jury.] The fame day is there
given to the parties aforefaid. 3f fteriOOartS the procefs therein, Refpite, for
being continued between the faid parties of the plea aforefaid d<^''i't ot
by the jur)', is put between them in refpite, before the lord the
king, until the day of Eafter in fifteen days, wherefoever the faid u,j;^,ius.
lord the king fhall then be in England ; unlefs the juftices of
the lord the king afligned to take afufes in the county aforefaid,
fhall have come before that time, to wit, on Monday the eighth
day of March, at Reading in the faid county by the form of the
ftatute [in that cafe provided], by reafon of the default of the
jurors, [fummoned to appear as aforefaid.] At which day be-
fore the lord the king, at Weftminfler, come the parties afore-
faid by their attorneys aforefaid ; and the aforefaid juftices of
aflife, before whom [the ]\iry aforefaid came,] fent here their
record before them, had in thefe words, to wit : 3ftcrlOarfi0, Pc/Ijap
at the day and place within contained, before Hencagc Lcgger
^fquirc, one of the baron?, of the exchequer of the lord the king ;
aud fir John Eardlev Wilmot, knight, one of the jullices of the
Liz " iaid
xiv APPEND! X.
N III. faid lord the Ling, affigned to hold pleas jjcfore the king him-
^-""v"" -' fclf, jullicts of the faid lord the king, afligned to take aflifes in
the county of Berks by the form of the llatute [in that cafe pro-
vided,] come as well the within-nam.ed Richard Smith, as the
wltTkin-written George Saunders, by their attorneys within con-
tained ; 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, V/illiam Brown, and
Francis Oakley, come, and are fvvorn upon that jury : and be-
caiife the reft of the jurors of the fame jury did not appear,
:*'''^j ^^''" therefore others of the by-ftanders being chofcn by the fiieriff,
^ * at the requeft of the faid Richard Smith, and by the command
of the juftices aforefaid, are appointed anew, whofe names are
affixed to the panel within written, accoi'ding to the form of the
itatute in fuch cafe made and provided; which faid jurors fo
appointed anew, to wit, Roger Bacon, Thomas Small, Charles
Pye, Edward Hawkins, Samuel Roberts, and Daniel Parker,
being llkewife called, come ; and together with the other juror j
aforefaid before impanelled and fworn, being eleled, tried
and fworn, to fpeak.the truth of the matter within contained,
Verdia for ^pon their oath fay, that the aforefaid George Saunders is guilty
' of the trefpafs and ejectment within-written, in manner and form
as the aforefaid Richard Smith within complains againft him ;
and affcfs the damages of the faid Richard Smith, on occafion
of that trefpafs and ejelment, befides his cofts and charges
which he hath been put unto about his fuit in that behalf, to
twelve pence : and, for thofe cofts and charges, to forty fliillings.
iSil)ZXtupon the faid Richard Smith, by his attorney aforefaid,
prayeth judgment againft the faid George Saunders, in and upon
the verdidl aforefaid by the jurors aforefaid given in the form
Motion in aforefaid : and the faid George Saunders, by his attorney afore-
tuxlgment. ^^^^ faith, that the court here ought not to proceed to give judg-
ment upon the faid verdift, and prjyeih that judgment againft
him the faid George Saunders, in and upon the verdil aforefaid
by the jurors aforefaid given in the form aforefaid, may be
ftayed, by reafon that the faid verdidl is infufRcient and errone-
ous, and that the fame verdidl may be quaflied, and that the ifTue
aforefaid may be tried anew by other jurors to be afrelh impa-
*8 nellcd.
APPENDIX. XV
nclied. Andjbecaufc the court of the lord the king here is not J^- UJ,
yet advifcd of giving their judgment of and upon the prcmifes, ^. s >-- -J
therefore day thereof is given as well to the faid Richard Smith Cor.tnu-
as the faid George Saunders, before the lord the king, until the
morrow of the Afcenfion of our Lord, whercfoever the faid lord
the king fhall then be in England, to hear their judgment of
and upon the premifes, for that the court of the lord the king
is not yet advifed thereof. At which day before the lord the
king at Weftminfter, come the parties aforefaid by their attor-
neys aforefaid : upon which, the record and matters aforefaid
having been feen, and by the court of the lord the king now
here tully underftood, and all and lingular the prenvifes having
been examined, and mature deliberation being had thereupon,
for that it feetns to the court of the lord the king now here that Ojiulon cf
the vcrdift aforefaid is in no wife infufficient or erroneous, and "* '^""*
tiiat the fame oughl; not to be quaihed, and that no new trial
ought to be had of the iflue aforefaid, Cljerefore It 10 COtl* Judgment
fiHercD, that the faid Richard do recover againft the faid George [rj^;'^"!/!-
his term yet to come, of and in the faid tenements, with tlie ap-
purtenances, and the faid damages affefled by the faid jury in
form aforefaid, and alfo twenty-feven pounds fix (hiUings and Coils.
eight pence for his cofts and charges aforefaid, by the court of
the lord the king here awarded to the faid Richard, with his
afTent, by way of increafe ; which faid damages in tlie whole
amount to twenty-nine pounds feven Shillings and eight pence.
*' And let the faid George be taken, [until he maketh fine to the Caplatur i>r
" lord the king]." * Hint) Ijcreupoit the faid Richard by his attor- -A'-';
ney aforefaid prayeth a writ of the lord the king, to be diredted to poffefljon
the fheriff of the county aforefaid, to caufe him to have poflefiion
of his term aforefaid yet to come, of and in the tenements afore"
faid, witli the appurtenances : and it is granted unto him, return-
able before the lord the king on the morrow of the holy Trinity,
wherefoever he fhall then be in England. At which day before and return.
the lord the king, at Weftminfter, cometh the faid Richard by
his attorney aforefaid ; and the fheriff, that is to fay, fir Thomas
Reeve, knight, now fendeth, that he by virtue of the writ afore-
faid to him dircftcd, on the ninth day of June laft paft, did caufe
* Now bsiltt<a See page 39?.
I. 1 3 the
XVI
APPENDIX.
N" III. the faid Richard to have his pofTeflion of his term aforefaid yet to
^ ~~ * come, of and in the tenements aforefaid, with the appurtenances,
as he was commanded.
Mo III.
Proceedings en an A^icn of Debt in the Court of
Common Pleas j removed itito the King's Bench hy
I'Frit 0/ Error.
^ I. Ongiiial.
Praer'<j>f. /jt* C > IR (15 ^ the fecond, by the grace of God of Great
Britain, France, and Ireland king, defender of the faith,
and fo forth ; to the iherifFof Oxfordfhire, greeting. CommanU
Charles Long, late of Burford, gentleman, that juftly and without
delay he render to William Burton two hundred pounds, which
, he owes him and unjuftly detains, as he faith. And unlefs he
fhall fo do, and if the faid William fliall make you fecure of
profecuting his claim, then fummon by good fummoners the afore-
faid Charles, that he be before our juftices, at Weilminfter, on the
oftayc of faint Hilary, to fhew wherefore he hath not done it.
And have you there then the fummoners, and this writ. Wiits
licfa ourfelf at Weftminfter, the twenty-fourth Day of December*
in the twenty-eighth year of our reign.
Sh^rifTs Pledges | j^j^^ ^^^^ Surnmoners of the 1 j^ j^^^^j^^
or prole- >;.. > , t> witlun-named >tt t uf ,
5 l^ichard Doe. ^j^^^j^^ ^^^^^ ^ Henry Johnfou.
P
cuiion.
Attach-
ment.
2 Procefs,
(I5^:1R<15<Z5 the fecond, by the grace of God of Great Britain,
France, and Ireland king, defender of the faith, and fo forth ;
to
APPENDIX. xvii
to tlie fheriff of Oxfordfhirc, greeting, f^ut by gage and fafe N" III.
pledges Charles Long, late of Burford, gentleman, that he be be- * -v
fore our jiiftices at Weftminfter on the octave of the purification '''^'"
of the bleiTed Mary, to ar.fwer to William Burton of a plea,
that he render to him two hundred pounds which he owes him
and unjullly detains, as he faith ; and to fhew wherefore he was
not before our jnlh'ces at Weftminller on the odlave of faint
Hilary, as he was fummoncd. And have there then the names ,
of the pledges and this writ. Citttticfs fir John Willes, knight,
at Weftminftcr, the twenty-third day of January, in the tweuty-
cighth year of our reign.
The within-namcd Charles Long Is 7 Edward Leigh. Sheriff's
attached by Pledges, j Robert Tanner. ''^'"'"
(15 ( :aD IR (0 CK the fecond, by the grace of God of Great Diftringat,
Britain, France, and Ireland king, defender of the faith, and fo
forth ; to the (herift" of Oxfordlhire, greeting. Cjlc command
you, that you diftrein Charles Long, lute . of Burford, gentle-
man, by all his lands and chattels within your bailiwick, fo
that neither he nor any one through him may lay hands on the
fame, until you Ihall receive from us another command there-
upon ; and that you anfwcr to us of the iliues of the fame : and
that you have his body before ourjuih'ccs at Wcltminfter from
the day of E alter in fiitecn days, to anfwer to William Burton
of a plea, that he render to him two hundred pounds which he
owes him and unjutlly detains, as he laith, and to hear his judg-
ment of his many defaults, l^itwtia fir John Willes, knight, at
Weftminfter, the twelfth day of February, in the twenty-eighth
year of oar reign.
The witliin-named Charles Long hath nothing io my bailiwick, Sheriff's
whereby he may be diilrcined. ^'.""'
^ ^ liD 1ft (3 C the fccond, by the grace of God of Great BrI- Capm aJ
tain, France, and Ireland king, defender of flic faith, and fo forth ; ^Jjf^^-"'^--
4.0 the flicriff of Oxfordfliire, greeting. SS.it command you, that
L 1 4 you
xviii
APPENDIX.
N" III.
Sheriff's
recurut
you takeCharles Long, late of Burford, gentleman, if he may
be found In your bailiwick, and him fafely keep, fo that you may
have his body before our juftices at Wefttninfter from the day of
Eailer in five weeks, to anfwer to William Burton, gentleman, of
a pica, that he render to him two hundred pounds, which he owes
him and unjuilly detains, as he faith ; and whereupon you have
returnied to our juilices at AVeftminfter, that the faid Charles hath
nothing in your bailiwick, whereby he may be diftreined. And
have you there then this writ. CSll'tncfa fir John Willes, knight,
at Weftminfter, the fixteenth day of April, in the twenty-eighth
year of our reign.
The within-named Charles Long is jiot found in my bailiwick.
JVs eft
in-verttus.
Teftatum
(J5 (Jg ;^ IR <C the fecond, by the grace of God of Great
Britain, France, and Ireland king, defender of the faith, and
fo forth ; to the (heriff of Berkfhire, greeting. C23c command
you, that you take Charles Long, late of Burford, gentleman,
if he may be found in your bailiwick, and him fafcly keep, fo
that you may have his body before our juftices at Weftminfter,
on the morrow of the holy Trinity, to anfwer to William Bur-
ton, gentleman, of a plea, that he render to him two hundred
pounds which he owes him and unjuftly detains, as he faith;
and whereupon our fherifF of Oxfordfhire hath made a return to
our juftices at Weftminfter, at a certain day Jiow paft^ that the
aforefald' Charles is not found in his bailiwick ; and thereupon it
is teftlfied incur faid court, that the aforefald Charles lurks, wan-
ders, and runs about in your county. And have you there then
this writ. Caituefs fir John Willes, knight, at Weftminfter, the
feventh day of May, in the twenty-eighth year of our reign.
Sheriff's
return.
By virtue of this writ to me direfled, I have taken the body of
the within-named Charles Long ; which I h^ve ready at the day
and place within contained, according as by this writ it is com-
manded me.
' Or, upon the Return gf Non eft .inventus upon thejirfi Ca-
** pias, //5 Plaintiff' may fue out qn Alias and a Plurie?,
*' and then proceed to Outlawry ; thus :
APPENDIX. xix
" dp (C ;fiD IR <C (S the fecond, by the grace of God of Great N*> III.
Britain, France, and Ireland king, defender of the faith, and fo ' "v -J
forth; to the iheriff of Oxfordfhire, greeting. 2ate command ^ '"* '"'
you as formerly we commanded you, that you take Charles
Long, late of Burford, gentleman, if he may be found in
your bailiwick, and him fafely keep, fo that you may have
his body before our juflices at Weftminfter, on the morrow
of the holy Trinity, to anfvver to William Burton, gentleman,
of a plea, that he render to him two hundred pounds, which
he owes him and unjuftly detains, as he faith. And have you
there then this writ. SSIltnefg fir John Willes, knight, at
Weftminfter, the feventh day of May, in the twenty-eighth
year of our reign.
** The within-named Charles Long is not found in my baili- Sheriff's
" wick " return.
" Non eft
*' 'm-ventus.
(( Plurin
*' dp (2; > 1^ (0 <S the fecond, by the grace of God of Great <, cafias,
^* Britain, France, and Ireland king, defender of the faith, and
" fo forth ; to the (herifF of Oxfordfhire, greeting. SSlc com-
" mand you, as we have more than once commanded you, that
** you take Charles Long, late of Burford, gentleman, if he
** may be found in your bailiwick, and him fafely keep, fo that
'^ you may have his body before our juftices at Weftminfter, >
" from the day of the holy Trinity in three weeks, to anfwer to
-f William Burton, gentleman, of a plea, that he render to him
" two hundred pounds, which he owes him and unjuftly detains,
' as he faith. And have you there then this writ. Mtttnefe fir
" John Willes, knight, at Weftminfter, the thirtieth day of
** May, in the twenty-eighth year of our reign.
" The within-named Charles Long is not foimd in my baili- " Sheriffs
** wick. " teturr.
Ifon fftin-
litlltUi.
** (BtB^fRiSS^S the fecond, by the grace of God of Great Exigi fa.
** Britain, France, and Ireland king, defender of the fait?i, and ** '*'"'
** fo forth ; to tke iheriff of Oxfordfhire, greeting. iSit com-
" mand
XX
APPENDIX.
K'- I IT. *t mand you, that you caufe Charles J^ong, late of Burford,
* gentleman, to be required from county court to county court,
* until according to the law and cuftom of our realm of Eng-
* land, he be outlawed, if he doth not appear : and if he doth
** appear, then take him and caufe him to be fafely kept, fo
*' that you may have his body before our juftices at Weftminfter,
*' on the morrow of All Souls, to anfwer to William Buiton,
*' gentleman, of a plea, that he render to him two hundred
** pounds, which he owes him and uujuftly detains, as he faith j
*' and whereupon you have returned to our jullices at Weil-
** minfter, from the day of the holy Trinity in three weeks, that
** he is not found in your bailiwick. And liave you there then
" this writ. C5!ttn?f0 fir John Willes, knight, at Wellminften
** the eighteenth day of June, in the twenty-eighth year of our
** reign.
** By virtue of this writ to me direclcd, at my county court
*' held at Oxford, in the county of Oxford, on Thurfday the
*' twenty-firft day of June, in the twenty-ninth year of the
*' reign of the lord the king v.-ithin-written, the within-named
" Charles Long was required the firft time and did not appear :
" and at my county court held at Oxford aforefaid, on Thurfday
" the twenty-fourth day of July in the year aforefaid, the faid
*' Charles Long was required the fecond time, and did not ap-
*' pear : and at my county court held at Oxford aforefaid, on
*' Thurfday the twenty-firft day of Auguft in the year aforefaid,
*' the faid Charles Long was required the third time, and did not
" appear : and at my county court held at Oxford aforefaid,
on Thurfday the eighteenth day of September, in the year
' aforefaid, the faid Charles Long was required the fourth time,
" and did not appear : and at my county court held at Oxford
*' aforefaid, on Thurfday the fixteenth day of Oftober in the
" year aforefaid, the faid Charles Long was required the fifth
' time, and did not appear : therefore the faid Charles Long, by
" the judgment of the Coroners of the faid lord the king, of the
*' county aforefaid, according to the law and cuftom of the kipg-
" dom of England, is outlawed.
(I501DIR0C
APPENDIX. xxi
No III.
< (J5 (JP ^ IR dEi (Jg the fecond, by the grace of God of Great ' * -
" Britain, France, and Ireland king, defender of the faith, and ,j procla-
" fo forth ; to tlie (heriff of Oxfordlhire, greeting. Caijcrcns " mation.
*' by our writ we have lately commanded you that you fhould
*' cauie Charles Long, late of Burford, gentleman, to be re-
** quired from county court to county court, until according to
" the law and cuftom of our realm of England he fliould be ,
*' outlawed, if he did not appear : and if he did appear, then
" that you ftiould take him and caufe him to be fafely kept, fo
*' that you might have his body before our juftices at Weftmin-
** fter, on the morrow of All Souls to anfwcr to William Bur-
** ton, gentleman, of a plea, that he render to him two hun-
* dred pounds, which he owes him and unjullly detains, as he
*' faith : Cljerefore we command you, by virtue of the ftatute
** in the thirty-firft year of the lady Ehzabeth late queen of
" England made and provided, that you caufe the faid Charles
** Long to be proclaimed upon three feveral days according to
* the form of that ftatute; (whereof one proclamation (hall be
made at or near the moft ufual door of the church of the pa-
*' rifh wherein he inhabits) that he render himfelf unto you ;
*' fo that you may have his body before our juftices at Weftmin-
*' fter at the day aforefaid to anfwer the faid William Button
* of the plea aforefaid. And have you there then this writ.
" (HCtftncfa fir John Willes, knight, at Weftminfter, the
*' eighteenth day of June, iii the twenty-eighth year of our
** reign,
*' By virtue of this writ to me directed, at my county court SherlfF'*
** held at Oxford, in the county of Oxford, on Thurfday the twen- " turn.
** ty-fixth day of June, in the twenty-ninth year of the reign of,, ^arlfuU
*' the lord the king within- written, I caufed to be proclaimed
* the hrft time ; and at the general quarter fefllons of the peace,
" held at Oxford aforefaid, on Tuefday the fifteenth day of July
*' in the year aforefaid, I caufed to be proclaimed the fecond
*' time ; and at the moft ufual door of the church of Burford
** within-written, on Sunday the third day of Auguft in the year
' aforefaid, immediately after divine fervice, one month at the
' Icaft before the within-nanicd Charles Long was required the
fifth
xxu A P P E N D I X.
N^III. *' fifth time, I caufed to be proclaimed tlic tliii-d time, that the
" faid Charles Long Ihould render himfelf unto me, as within it
'* is commanded me.
Cap!as ut- << (^ .^^ ) 1^ (0 (JJ the fecond, by the grace of God of Great
agatum. ^^ g^jj-^jj^^ France, and Ireland king, defender of the faith, and
'*' fo fortii ; to the fheriff of Berkfliire, greeiing. JJHc com-
'* raand you, that you omit not by reafon of any liberty of your
*' county, but that you take Charles Long, late of Burford ia
i* the county of Oxford, gentleman, (being outlawed in the
*^ faid county of Oxford, on Thurfday the fixteenth day oT
*' October lalt pall, at the fuit of William Burton, gentleman,
*' cf a plea of debt, as the ftierift of Oxfordfhire aforefaid re-
*' turned to our juftices at Weftminfter on the morrow of AU
V Souls then next enfuing,) if the (aid Charles Long may be
*' found in your bailiwick ; and him fafely keep, fo that you
*' may have his body before our juftices at Weftminfter, from the
*' day of faint Martiii in fifteen days to do and receive what our
** court (hall confider concerning him in this behalf. CItitnefS
*' fir John Willes, knight, at Weftminfter, the fixth day of No-
*' vember in the twenty-ninth year of our reign.
* Sherlfl''s ** By virtue of this writ to me directed, I have taken the body
"leturn. of the within-named Charles Long ; which I have ready at the
** tuu '' " day ^^^ place within-contained, according as by this writ it is
** commanded me.
< ;i 3. * Bill of Middlefex, and Latitat thereupon in the Court of
" King's Bench.
* Middlefex, 7 " d;C 5)I;Ctfff is commanded that he take
" to wit. 3 " Charles Long, late of Burford in the county
" of Oxford, if he may be found in his bailiwick, and him fafely
Note, that ^ ;, and 4, are the ufual method of procefs, to compel aft ap-
pearance in the courts of king'i bench and exchequer ; in which the practice of
thbfe courts does principally differ from that of the court of common fleas ^ the
faiifeqQent images 0/ proceedings being nearly alike in them all.
'" < keep,
APPENDIX. xxlii
keep, Co that he mayhave his body before the lord the king N*' IIL
" at Weftminfter, on Wcdnefday next after fifteen days of Eafter, -i -- *
to anfwrer William Burton, gentleman, of a plea of trefpafs ;
" [ailD alfo to a bill of the faid William againft the aforefaid ' ac tt\am
Charles, for two hundred pounds of debt, according to the " *" '^^^^'
cuftom of the court of the faid lord the king, before the king
*' himfclf to be exhibited ;] and that he have there then this
** precept.
*' The withiil-named Charles X-ong is not found in my. baili- " Sheriff's
wick. "return;"
" Non tp
" iti'ventuu
" Lmitat.
(15 C ) IS (!5 C the fecond, by the grace of God of Great
'* Britain, . France, ^nd Ireland king, defender of the faith, and
*' fo forth ; to thC' (herifF of Berkfhire, greeting. dCHb^tCaS
*' we lately commanded our fheriff" of Middlefex that he Ihould
** take Charles Long, late of Burford in the county of Oxford,
" if he might be found in his bailiwick, and him fafely keep^
" fo that iie might be before us at WeO-minfler, at a certain day
** now paft, to anfwer unto William Burton, gentleman, of a
" plea of trefpafs; [atlfi alCo to a bill of the faid William ^ ^ja,^
" againft tlie aforefaid Charles, for two hundred pounds of
*' debt, accoiding to the cudom of our court, before' us to be
" exhibited;] and- oTir faid fheriff of Middltfcx at that day re-
" turned to us that tlie aforefaid Charles was not found in his
' bailiwick; whereupon on the behalf of the aforefaid William
** in our court before us it is fufficiently attefted,- that the, afor^r
** faid Charles lurks and runs about in your county : d)ercfote
' we command you, that you take him, if he may be found in
** your bailiwick, and him fafely keep, fo that you may have his
** body before us at Weftminfter on Tuefday next after five weeks
* of Eafter, to anfwer to th^ aforefaid William of the plea [and
*< bill] aforefaid ; and have you there then this writ, {ditncfff
** fir Dudley Ryder, knight, at Weftminfter, the eighteenth day
** of April in the twenty-ciglith year of our rt'igii.
" By virtue of tljis writ to me directed, I have taken the body " Sh-rff "i
" of the within-named Charles Long ;" which I have ready '^tfftt " '""
, ' day
vxi> APPENDIX.
^^^ " t^ay and place withinicontaincd according as by this writ it is
" Ctf, cor- *' oonin'.anded nic.
** /*.
*' 4. Writ of Quo minus m t/je Exchequer.
(iDCCHRdaCB the feCond, by the grace df God of Great
' Britain, France, and Ireland king, defender of the faith, and
' fo fortlij to the fherifF of Berkihire, greeting. fBJc com-
' riiand you, that you omit not by rcafon of any liberty of your
*' county^ but that you enter the fame, and take Charles Long,
*' late of Burford in the county of Oxford, gentleman, wherefo-
*' ever he fhall be found in your bailiwick, and him fafcly keep,
*' fo that you may have his body before the barons of our exchc-
*' quer at Weftminrier, on the morrow of the holy Trinity, to
* anfwer William Burton our debtor of a plea that he render to
** him two hundred pounds which he owes him and unjuftly de-
** tains, whereby he is the lefs able to fatisfy us the debts which he
*' owes us at our faid exchequer, as he faith he can reafonably
*' {hew that the fame he ought to render : and have you there
' this writ. CJlttliefo fir Tiiomas Parker, knight, at Weft-
miniler, the fixth day of May, in the twenty-eighth year of
*' our reign.
Shiiff's " By virtue of this writ to mc diretled, I have taken the body*
O*17or- *' ^ ^^^^ within-named Charles Long ; which I have ready before
/>;." " the Barons within-written, according as within it is com
<* manded me.'*
^ 5. Special Bail ; on the Arreji of the Defendant ^ purfuatit to iht
Tellatum Capias, inpagexiv.
Bail bond UMIOIB all llietl by thefe prefents, that we Charles Long of
to the (he- i^uj-ford in the county of Oxford, gentlemen, Peter Hamond of
Bix in the faid county, yeoman, and Edward Thomlinfon of
Woodftcck in the faid county, innholder, are held and firmly
bound to Chriftopher Jones, efquire, fheriff of the county of
Bcrk8>
APPENDIX. XXV
Berks, in four hundred pounds of lawful money of Great Bri- N* Ilf.
tain, to be paid to the faid fheriff, or his certain attorney, ext- ' "J
cutors, adminiftrator*, or affigns ; for wiiich payment well and
truly to be made, we bind ourfclves and each of us by himfclf
for the whole and in grofs, our and every of our heirs, ej^ecu-
tors, and adminillrators, firmly by thefe prcfents, fealed witU
our fcals. Dated the fifteenth day of May in the twenty-eighth
year of the reign of our fovereign lord George the fecond, by
the grace of God king of Great Britain, France, and Ireland,
defender of the faith, and fo forth, and in the yew of our Lord
one thoufand feven hundred and fifty-five.
Cfte condition of this obligation is flich, that if tht abbve-
bounden Charles Long do appear befbre the juftices of our fo-
vereign lord the king at WeftminfLer, on, the morrow of the
holy Trinity, to anfwer William Burton, gentleman, of a plea
of debt of two hundred pounds, then this obligation fluiU be
void and of none effect, or elfe fhaU be and remain in full force
and virtue.
Scaled, and delivered, being Charles Long. {L S.)
firft duly flamped, in the Peter Hamond. (1,,. S.) .
prefence of Edward Thomlinfon. (L. S. )
Henry Shaw.
Timothv Griffith.
^Ott Charles Long do .uknowlcge to owe unto the plaint ifFRecofnJ-
four hundred pounds, and you John Rofe and Peter Hamond do ^^^^^ betbre
feverally acknowlege to owe unto the lame perfori the fufh ofthecom-
two hundred pounds a-piece, to be levied upon your feveral goods '^'*<'o*''
and chattels, lands and tenements, upon canDittOlt that, if the
defendant be condemned in the aclion, he fliall pay the condemn-
ation, or render himfelf a prifoncr ui the Fleet for the fame ;
and, if he fail fo to do, you John Rofe and Peter Hamond do
-^ndcrtake to do it for him.
Trinity
xxvi APPENDIX.
N<^ III.
1 -^- , Trinity Term, 28 Geo. II.
Bail piece. Berks, 7 ^11 a Tejlatum Capias from Oxfordfhire againU
to wit. 3 Charles Long, late of Burford in the county of Ox-
ford, gentleman, returnable on the morrow of the holy Trinity,
at the fuit of William Burton, of a plea of debt of two hundred
pounds :
^Ibt bail are, John Rofe, of Witney in the county of Oxford,
efquire. Peter Hamond, of Bix in the faid county, yeoman.
Richard Price, attorney 7
for the defendant. 3
The party himfelf in ^^400.
Each of the bail in /^20q.
Taken and acknowleged the twenty-eighth
day of May, in the year of our Lord one
thoufand feven hundred and fifty-five, de
bene ejfe, before me,
Robert Grove,
one of the commiflioners.
f 6. The Record, as~ removed by Writ of ^v-.KO%.
Writ of ^^^ iot^ the king hath given in charge to his trufty and
error. beloved fir John Willes, knight, his writ clofed in thefe words :
<0(!EiaDJR(i><B the fecond, by the grace of God of Great Britaiff,
France, and Ireland king, defender of the . faith, and fo forth ;
to our trufty and beloved fir John Willes, knight, greeting.
113ecanfe in the record, and procefs, and alfo in the giving of
judgment, of the plaint which was in our court before you, and
your fellows, our juftices of the bench, by our writ, between
.William Burton, gentleman, and Charles Long, late of Burford
APPENDIX. xxvii
ia the county of Oxford, gentleman, of a certain debt of two N" IH,
hundred pounds, which the faid William demands of the faid 'w' -f
Charles, manifeft error hath intervened, to the great damage of
him the faid William, as we from his complaint are informed :
we, being willing that the error, if any there be, fhould be cor-
re6lcd in due manner, and that full and fpecdy juftice fhoidd be
done to the parties aforefaid in this behalf, do command you, that,
if judgment thereof be given, then under your feal you do dif-
tinfUy and openly fend the record and procefs of the plaint afore-
said, with all things conceining them, and this writ; fo that we
may have them from the day of Eafter in fifteen days, whercfb-
ever we (hall then be in England ; that the record and procefs
aforefaid being infpefted, we may caufe to be done thereupon,
for correfting that error, what of right and according to the law
and cuftom of our realm of England ought to be done, dlitnef?
ourfelf at Wcftminfter, the twelfth day of February, in the
twenty- ninth year of our reign.
%^e record and procefs, whereof in the faid writ mention above Chief juf.
is made, follow in thefe word:;, to wit : *'*' * ^*-
turn.
^Uaa at Weftminfter before fir John Willea, knight, and his The record,
brethren, juftices of the bench of the lord the king at Weft-
minfter, of the term of the holy Trinity, in the twenty-eighth
year of the reign of the lord George the fecond, by the grace
of God of Great Britain, France, and Ireland king, defender
of the faith, Ss'f.
Oxon,") Ct)atle0 Long, late of Burford in the county afore- Writ.
to wit. 3 faid, gentleman, was fummoned to anfwcr William
Burton, of Yarn ton in the faid county, gentleman, of a plea
^hat he render untio him two hundred pounds, which he owes
him and unjuftly detains, [as he faith.] ^IttU tolfjcrettpon the Declaration,
faid William, by Thomas Gough his attorney, complains, that Y""^' "
\yhereas on the firft day of December, in the year of our Lord
^ne thouCand feven hundred and fifty-four, at Banbury in this
county, the faid Charles by his writing obligatory did acknow-
lege himfelf to be bound to the faid William in the faid fura of
two hundred pounds of lawful money of Great Britain, to be
paid to the faid Wilham, whenever afur.the faid Chjirlc^ Should
ypi. ;il. Mm b
XXVUl
APPENDIX.
N'' III.
Profert In
curia.
Defence.
Oyer prayed
of the bond,
and condi-
tioB, vii&.
to perform
aa award.
Imparlance.
Continu-
ance.
be thereto required ; neverthelefs the faid Charles (although
often required) hath not paid to, the faid William the faid fum
of two hundred pounds, nor any part thereof, but hitherto al-
together hath refufed, and doth ftill refufe, to render the fame ;
wherefore lie faith that he is injured, and hath damage to the
value of ten pounds : and thereupon he brings fuit, [and good
proof.] 3ntl he brings here into court the writing obligatory
aforefaid ; which teflifies the debt aforefaid in form aforefaid ;
the date whereof is the day and year before-mentioned. |^nll
the aforefaid Charles, by Richard Price his attorney, comes and
defends the force and injury when [and where it fhall behove
him,] and craves oyer of the faid writing obligatory, and it is read
unto him [in the form aforefaid] : he likewife craves oyer of the
condition of the faid writing, and it is read unto him in thefe
words : " The condition of xhis obligation is fuch, that if the
** above bounden Charles Long, his heirs, executors, and ad-
" miniftrators, and every of them, fhall and do from time to
** time, and at all times hereafter, well and truly ftand to, obey,
** obfcrve, fulfil, and keep, the award, arbitrament, order,
** rule, judgment, final end, and determination, of David Stiles,
1* of Woodftock in the faid coimty, clerk, and Henry Bacon,
* of Woodftock, aforefaid, gentleman, (arbitrators indifferently
** nominated and chofen by and between the faid Charles Long
" and the abovenamed William Burton, to arbitrate, award,
** order, rule, judge, and determine, of all and all manner of
*^ aftions, caufe or caufcs of aftion, fuks, plaints, debts, duties,
<* reckonings, accounts, controverfies, trefpaffes, and demands
* whatfoever had, moved, or depending, or which might have
* been had, moved, or depending, by and between the faid par-
** ties, for any matter, caufe, or thing, from the beginning of
** the world until the day of the date hereof,) which the faid
" arbitrators fhall make and publifh, of or in the premifes, in
*' writing under their hands and feals, or otherwife by word of
* mouth, in the prefence of two credible witneflcs, on br before
*' the firft day of January next enfuing the date hereof ; then
** this obligation to be void and of none'effeft, or elfe to be
** and remain in full force and virtue." Wi\)\t\j being read and
heard, the faid Charles prays leave to imparl therein here until
the oftave of the holy Trinity ; and it is granted unto him.
The fame day is given to the faid William Burton here, iffc.
At which day,' t-o Xvit, on the oftaVevf the holy Trinity, here
j:' 7 corac
APPENDIX. xxix
come as well the faid William Burton as the (aid Charles Long, N'' III.
by their attorneys - aforefaid : and hereupon the faid William ''"*'^~ -*
prays that the faid Charles may anfvver to his writ and count
aforefaid. 3^111) the aforefaid Charles defends the force and in- P'ea ?
jury, when, ilfc. and faith, that the faid William ought not to ayy,ard.
have or maintain his faid action againil him ; becaufe he faith,
that the faid David Stiles and Henry Bacon, the arbitrators be-
forenamc'd in the faid condition, did not make any fuch award,
arbitrament, ordtr, rule, judgment, final end, or determination,
pf or in the premifes above fpecified in th: faid condition, on or
before the firft day of January, in the condition aforefaid above
mentioned, according to the form and efFeft of the faid condi-
tion : and this he is ready to verify. Wherefore he prays judg-
ment, whether the faid William ought to have or maintain his
faid action thereof againft him [and that he may go^ thereof
without a day.] %nJi the aforefaid William faith, that, for any Replication,
thing above alleged by the faid Charles in pleadings, he ought fitting forth
not to be precluded from having his faid action thereof againft
him ; becaufe he faith, that after the making of the faid writing
obligatory, and before the faid tirft day of January, to wit, on
the twenty-fixth day of December, in the year aforefaid, at
Banbury aforefaid, in the prefence of two credible witnefTes,
namely, John Dew of Chalbury, in the county aforefaid, and
Richard Morris of Wytliam, in the county of Berks, the faid
arbitrators undertook the charge of the award, ai;bitrament, or-
der, rule, judgment, iiual end, and determination aforefaid, of
and in the preniifct. fpecified in the condition aforefaid ; and then
and there made and publifhed their award by word of mouth in
manner and form following, that is to fay : The faid arbitrators
did awatd, order, and adjudge, that he the faid Charles Xong
Ihould forthwith pay to the faid William Barton the fum of fe-
venty-five pounds, and that thereupon all differences between
them at the time of the making the faid .writing obligatory
(hould finally ceafe and determine. And the faid William fur-
ther faith, that although he afterwards, to wit on the fixth day
ot January, in the year of our Lord one thoufand feven hun-
dred and fifty-five at Banbury aforefaid, requefted the faid
Charles to pay to him the faid William the faid feventy.five
pounds, yet (by protellation that the faid Charles hath not ilood Pmtjiandoi
to, obeyed, obferved, fulfilled, or kept any part of the faid
award, which by him the faid Charles ought to have been ftood
M m 2 .to.
XXX
APPENDIX.
Caufes of
derauncr.
N III. tOj obeyed, obfervcd, fulfilled, and kept) for further plea therem
* '* ' he faith, that the fald Charles the faid feventy-tive pounds to
the faid William hath not hitherto paid : and this he is ready to
veiify. Wherefore he prays judgment, and his debt .aforefaid,
together with his damages occafioned by the detention of the
Demurrer, faid debt, to be adjudged unto him, iffc. 2luD the' aforefaid
Charles faith, that the plea aforefaid, by him the faid William
in manner and form aforefaid above in his replication pleaded,
and the matter in the fame contained,, are in no wife fufiicient in
law for the faid William to have or maintain his aftion aforefaid
thereupon againft him the faid Charles j to which the faid Charles
hath no neccflity> neither is he obliged by the law of the land,
iti any manner to anfwer : and this he is ready to verify. Where-
fore, for want of a fuffieient replication in this behalf, the faid
Charles, as aforefaid, prays judgment, and that the aforefaid
William may be precluded from having his aftion aforefaid there-
upon againft him, Iffc. And the &id Charles, according to the
form of the ftatute in that cafe made and provided, fliews to the
court here the caufes of demurrer following ; to wit, that it dotb
not appear, by the replication aforefaid, that the faid arbitrators
made the fame award in the prefence of two credible witnefles
on or before the faid firft day of January, as they ought to have
done, according to the form and effeft of the condition afore-
faid ; and that the replication aforefaid h uncertain, infufficient,
and wants form. ^ITB the aforefaid William faith, that the plea
aforefaid by him the faid William in manner and form aforefaid
above in his replication pleaded, and the matter in the famd
contained, are good and fufiicicnt in law for the faid William to
have and maintain the faid a6lion of him the faid William there-
upon againft the faid Charles ; which faid plea, and the matter
therein contained, the faid William is ready to verify and prove
as the court ftiall award : and becaufe the aforefaid Charles hath
not anfwered to that plea, nor hath he hitherto in any manner
denied the fame, the faid William as before prays judgment, and
his debt aforefaid, together with his damages occafioned by the
detention of that debt, to be adjudged unto him, iffc. 3>nT>
becaufe the juftices here will advife themfelves of and upon the
premifes before they give judgment thereupon, a day is there-
upon given to the parties aforefaid here, until the morrow of
All Souls, to hear their judgment thereupon, for that the faid
iuftices here are not yet advifed thcreofr At which day here
a coRie
Joinder in
"emurrer.
Continu-
ances.
APPENDIX. xxxi
iiame as well the faid Charles as the faid William, by their faid N Hi.
attorneys ; and becaufe the faid juftices here will farther advife
themfelves of and upon the premifes before they give judgment
thereupon, a day is farther given to the parties aforefaid here
until the oftave of faint Hilary, to hear their judgment thereupon^
for that the faid juftices here are not yet advifed thereof. At
which day here com as well the faid William Burton as the faid
Charles Long, by their faid attorneys. 2U|)ercfore, the record Opinion ^
and matters aforefaid having been feen, and by the juftices here
fully underftood, and all and lingular the premifes being exa-
mined, and mature deliberation being had thereupon ; for that Replicatiow
it feems to the faid juftices here, that the faid plea of the faid '"'^"fficient.
.... Judgment
William Burton before in his replication pleaded, and the matter /or the de-
therein contained, are not fuflicient in law, to have and main- fendant.
tain the aftion of the aforefaid William againft the aforefaid "^p-J" p^f
Charles : t^crcfOtC it {0 COtlfflKrcD, that the aforefaid Wilham bre-ve.
take nothing by his writ aforefaid, but that he and his pledges of
profecuting, to wit, John Doe and Richard Roe, be in mercy for
his falfe complaint ; and that the aforefaid Charles go thereof
without a day, l^c. UttD it iH f artljer COnflDercD, that the afore- Amerce-
faid Charles do recover againft the aforefaid William eleven pounds qJ^j'
and feven (hillings, for his cofts and charges by him about his de-
fence in this behalf fuftained, adjudged by the court here to the
faid Charles with his confent, according to the form of the ftatnte
in that cafe made and provided : and that the aforefaid Charles Execution.
may have execution thereof, Ss'ir.
35 ftcrtOarlW, to wit, on Wednefday next after fifteen days General Ef-
of Eafter in this fame term, before the lord the king, at Wtft- ""Of affig^
minfter, comes the aforefaid William Burton, by Peter Manwa-
ring his attorney, and faith, that in the record and proccfs afore-
faid, and alfo in the giving of the Judgment in the plaint afore-
faid, it is manifeftly erred in this ; to wit, that the judgment
aforefaid was given in form aforefaid for the fitid Charles Lotig
againft the aforefaid William Burton, whereby the law of the
land judgment would have been given for the faid Williairt
Burton againft the faid Charles Long : and this he is ready tb
verify. ^uD the faid William prays the writ of the faid lord Writ of 5f/-
thc king, to warn the faid Charles Long to be before the faid '"' /"""h ^o-
lord the king, to hoar the record and procefs aforefaid : and it is
granted unto hira : by which the flicriff aforefaid it commanded
th
xxxli APPENDIX.
N^III. that by good [and lawful men of his bailiwick] he caufe the
^ " y " ' ' aforefaid Charles Long to know, that he be before the lord the
king from the day of Eafter in five weeks, wherefoever [he fhall
then be in England,] to hear the record and procefs aforefaid,
if [it ihall have happened that in the fame any error fhall
have intervened ;] and farther [to do and receive what the court
of the lord the king fliall confider in this behalf.] The fame day
Sheriff's re- is given to the aforefaid William Burton. 3lt lDl)icb ta^ befoi-e
^ 5 i'cire ^jjg Jqj.^ ^j^^ king, at Weftminfter, conjes the aforefaid William
Burton, by his attorney aforefaid : and the fheriff returns, that
by virtue of the writ aforefaid to him direfted he had caufed
the faid Charles Long to know, that he be before the lord the
king at the time aforefaid in the faid writ contained, by John
Den and Richard Fen, good, CSV ; as by the fame writ was
commanded him : which faid Charles Long, accoi'ding to the
warning given him in this behalf, here conieth by Thomas
Error aflign- Webb his attorney. eSIl;crcUl)Otl the faid William faith, that in
the record and procefs aforefaid, and alfo in the giving of the
judgment aforefaid, it is manifeftly erred, alleging the error
aforefaid by him in the form aforefaid alleged, and prays, that
the judgment aforefaid for the error aforefaid, and others, in the
record and procefs aforefaid being, may be reverfed, annulled,
and entirely for nothing efleemed, and that the faid Charles
may rejoin to the errors aforefaid, and that the court of the faid
lord the king here may proceed to the examination as well of
the record and procefs aforefaid, as of the matter aforefaid above
Rejoinder; for error affigned. %nXi the faid Charles faith, that neither in
trt^tumf the record and procefs aforefaid, nor in the giving of the judg-
ment aforefaid, in any thing is there erred ; and he prays in like
manner that the court of the faid lord the king here may pro-
ceed to the examination as well of the record and procefs afore-
Continu- faid, as of the matters aforefaid above for error afligned. ^nU
bccaufe the court of the lord the king here is not yet advifed
what judgment to give of and upon the premifes, a day is there-
of given to the parties aforefaid until the morrow of the holy
Trinity, before the lord the king, wherefoever he fliall then be
In England, to hear their judgment of and upon the premifes,
for that the court of the lord the king here is not yet advifed
thereof. At which day before the lord the king, at Weilmin-
ftcr, come the parties aforefaid by their attorneys aforefaid:
ance
APPENDIX. xxxiii
dljttCUpOtt, as well the record and procefs aforefaid, and the j^o ijf^
judgment thereupon given, as the mart.prs afnrefaid hy the faid . _^_ f
VVilliana above for error afligned,- being feen, and by the court Option rf
of the lord the king here being fully underflood, and mature de-
liberation being thereupon had, for that it appears to the court of
the lord the king here, that in the rCord and procefs aforefaid,
and alfo in the giving of the judgment aforefaid, it is manifellly
erred, therefore it {0 COnfltJCreD, that the judgment aforefaid, Judgment
for the error aforefaid, and others, in the record and procefs "!/**"
' ' * TOon pleas
aforefaid, be reverfed, annulled, and entirely for nothing ef- reverfed.
teemed ; and that the aforefaid William recover agalnfl: the afore- Judgment
faid Charles his debt aforefaid, and alfo fifty pounds for his damages plaintiff.
which he hath'fuftained, as well on occafion of the detention of Cofts.
the faid debt, as for his cofts and charges unto which he hath
been put about his fuit in this behalf, to the faid William with his
confent by the court of the lord the king here adjudged. And Defendant
the faid Charles iu mercy.
7. Procefs of Execution.
(15(JE^1R(15C the fecond, by the grace of God of Great WrU of <*-
Britain, France, and Ireland king, defender of the faith, ^wAP'"^'^ J'^'if'
fo forth, to the Iheriff of Oxfurdfliire, greeting. CCIc command' ' *""
you, that you take Charles Jiong, late of Burford, gentleman,
if he may be found in your bailiwick, and him fafcly keep, fo
that you may have his body before us in three weeks from the
iay of the holy Trinity, whercfoever wc Ihall then be in Eng-
land, to fatisfy William Burton, for two hundred pounds debt,
which the faid William Burton hath lately recovered againft him
in our court before us, and alfo fifty pounds, which were ad-
judged in our faid court before us to the faid William Burton, for
his damages which he hath fuftained, as well by occafion of the
detention of the faid debt, as for his cofts and charges to which
he hath been put about his fuit in this behalf, whereof the faid '
Charles Long is convifted, as it appears to us of record : and
have you there then this writ. C2Ittne(0 fir Thomas Denifon *,
knight, at Weftminfter, the nineteenth day of June, in the twenty-
ninth year of our reign.
The fenior puifne justice ; there being no chief juAice that term.
By
xxxrv A P P E t? D I X.
N* III. By virtue of this writ to me dhefted, I have taken the body of
<i I w^ ' the within-named Charles Long ; which I have ready before the
tu"'-'^^ "' ^^^^ ^^ ^'"S ^^ Weftminller, at the day within written, as with-
Cej)i Corf us, in it is commanded me.
Writ of >C^1R^<5 the fecond, by the grace of God of Great
fiert/acias. Britain, France, and Ireland king, defender of the faith, and
fo forth, to the fherifF of Oxfordflilrc, greeting. (E[j command
you that of the goods and chattels within your bailiwick or
Charles Long, late of Burford, gentleman, you caufe to be made
two hundred pounds debt, which William Burton lately in our
court before us at Weftminfter hath recovered againft him, and
alfo fifty pounds, which were adjudged in our court before us to
the faid William, for his damage which he hath fuftained, as well
by occafion of the detention of his faid debt, as for his cofts and
icharges to which he hath been put about his fuit in this behalf,
whereof the faid 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, wherefoever we fliall then be in England,
to render to the faid William of his debt and damages aforefaid :
and have there then this writ. dSlitntte fir Thomas Denifon,
knight, at Weftminfter, the nineteenth day of June, in the
twenty-ninth year of pur reign.
Sheriff's re- By virtue of this writ to me diredled, I have caufed to be made
*"/".' of the goods and chattels of the within -written Charles Long,
ten /:. ^^^ hundred and fifty pounds ; which I have ready before the
lord the king at Weftminfter at the day within-written, as it i|
within commanded me.
THE END.
Printed by A- Strahan, Lavo-Pr'ttiUr t WU Majefy^
Printers-Strett, Ltndttt,
UNIVERSITY OF CALIFORNIA LIBRARY
Los Angeles
1 ' '-TV
UNIVERSITY OF CALIFORNIA LIBRARY
Los Angeles
This book is DUE on the last date stamped below.
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K 24.
3 1158 00510 3618 ^
UC SOUTHERN REGIONAL LIBRARY FACILITY
AA 000 113 935 i