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 COMMENTARIES 
 
 s 
 
 ON THE 
 
 LAWS 
 
 O F 
 
 ENGLAND. 
 
 BOOK THE THIRD. 
 
 B Y 
 
 WILLIAM BLACKSTONE, ES 
 SOLICITOR GENERAL TO HER MAJESTY. 
 
 THE SEVENTH EDITION. 
 
 OXFORD, 
 
 AT THE CLARENDON PRESS, MDCCLXXV. 
 
 PRINTED FOR WILLIAM STRAHAN, THOMAS CADELL, 
 AND DANIEL PRINCE.
 
 Stack 
 Annex 
 
 CONTENTS. 
 
 BOOK III. 
 Of PRIVATE WRONGS. 
 
 Of tie REDRESS of PRIVATE WRONGS by the 
 
 mere aft of the PARTIES. Page i. 
 
 CHAP. II. 
 Of REDRESS by the mere operation of LAW. 18. 
 
 CHAP. III. 
 Of COURTS in general. 2 2 , 
 
 CHAP. IV. 
 
 Of tie PUBLIC COURTS of COMMON LAW and 
 
 EQUITY. 30. 
 
 CHAP. V. 
 
 Of COURTS ECCLESIASTICAL, MILITARY, and 
 MARITIME. 6iJ 
 
 a 2 CHAP.
 
 CONTENTS. 
 
 CHAP. VI. 
 Of COURTS of a SPECIAL JURISDICTION. 71^ 
 
 CHAP. VII. 
 Of /* COGNIZANCE of PRIVATE WRONGS. 86, 
 
 CHAP. VIII. 
 Of WRONGS and their REMEDIES, refpefling the 
 
 RIGHTS of PERSONS. 1150 
 
 CHAP. IX. 
 Of INJURIES to PERSONAL PROPERTY. 144. 
 
 CHAP. X. 
 
 Of INJURIES to REAL PROPERTY, and fir ft of 
 DISPOSSESSION, or OUSTER, of the FREE- 
 HOLD. 167. 
 
 CHAP. XL 
 Of DISPOSSESSION or OUSTER of CHATTELS 
 
 REAL. 19?. 
 
 CHAP. XII. 
 Of TRESPASS. 208.' 
 
 CHAP. XIII. 
 
 Of NuSANCE. 2l6, 
 
 CHAP. XIV. 
 
 Of WASTE, 223. 
 
 CHAP,'
 
 CONTENTS. 
 
 CHAP. XV. 
 Of SUBTRACTION. 230, 
 
 CHAP. XVI. 
 Of DISTURBANCE. 236. 
 
 CHAP. XVII. 
 
 Of INJURIES proceeding from, or affefffog, the 
 CROWN. 
 
 CHAP. XVIII. 
 
 Of '& PURSUITS/REMEDIES^ ACTION; and, 
 
 , of the ORIGINAL WRIT. 270. 
 
 CHAP. XIX. 
 Of PROCESS 279. 
 
 CHAP. XX. 
 
 Of PLEADING. 293. 
 
 CHAP. XXI. 
 Of ISSUE and DEMURRER. 
 
 CHAP. XXII. 
 Of thefeveral SPECIES of TRIAL. 325. 
 
 CHAP. XXIII. 
 Of the TRIAL by JURY, 349. 
 
 CHAP.
 
 CONTENTS. 
 
 CHAP. XXIV. 
 Of JUDGMENT, and if s INCIDENTS. 386. 
 
 CHAP. XXV. 
 Of PROCEEDINGS, in the nature of APPEALS. 402; 
 
 CHAP. XXVI. 
 Of EXECUTION. 412." 
 
 CHAP. XXVII. 
 Of PROCEEDINGS in tbe COURTS of EQUITY. 4 2 & 
 
 APPEN-
 
 CONTENTS. 
 
 APPENDIX. 
 
 N. I. Proceedings on a Writ of RIGHT Patent. Page i. 
 
 . i. Writ of RIGHT patent inthe COURT BARON, ibid. 
 . 2. Writ of TOLT, to remove it into the COUNTY 
 
 COURT. ibid. 
 
 . 3. Writ of PONE, to remove it into the Court of 
 
 COMMON PLEAS. ii. 
 
 . 4. Writ o/'RicHT, quia Dominus remiiit Curiam. ibid. 
 . 5. The Record, with Award of Battel. iii. 
 
 .6. Trial by the grand Ajfife. v. 
 
 N". II. Proceedings on an Action of Trefpafs in EJECT- 
 MENT, by Original, in the King's Bench, vii. 
 
 . I. The Original Writ. ibid. 
 
 .2. Copy of the Declaration againft the c afual EjeSor ; 
 nuho gives Notice thereupon to the 'Tenant in 
 Po/ejjion. ibid. 
 
 $. 3. The Rule of Court. ix. 
 
 $. 4. The Record. ibid. 
 
 N. III. Proceedings on an Aftion of DEBT, in the Court 
 of Common Pleas; removed into the King's 
 Bench by Writ of ERR OR. xiii. 
 
 5- i. Original. ibid. 
 
 $.2. Procefs. , ibid. 
 
 " 5- 3- ^/V/o/'Middlefex, and Latitat thereupon, inthe 
 
 Court of King's Bench. xviii. 
 
 '* . 4. Writ o/'Quo minus in the Exchequer. xix, 
 
 J. 5. Special Bail; en the Arrefl of the Defendant, 
 
 purfuant to /^Teflatum Capias, in page xiv. ibid. 
 .6. 7!&* Record, as removed by Writ of ERROR. xxi. 
 .7. Procefs of Execution* xxvi.
 
 O N T H E 
 
 LAWS OF ENGLAND. 
 
 BOOK THE THIRD. 
 
 OF PRIVATE WRONGS. 
 
 CHAPTER THE FIRST. 
 OF THE REDRESS OF PRIVATE WRONGS 
 
 BY THE MERE ACT OF THE PARTIES. 
 
 T the opening of thefe commentaries * munici- 
 pal law was in general defined to be, " a rule of 
 " civil conduit, prefcribed by the fupreme power 
 " in a ftate, commanding what is right, and 
 " prohibiting what is wrong V From hence therefore it 
 followed, that the primary objects of the law are the efta- 
 blifliment of rights, and the prohibition of wrongs. And 
 this occafioned c the diftribution of thefe collections into two 
 general heads; under the former of which we have already 
 confidered the rights that were defined and eftabltflied, and 
 under the latter are now to confider the wrongs that are for- 
 bidden and redrefled, by the laws of England. 
 
 * Introd. . 2. Braft. /. r. c. 3. 
 
 t> SanEiio jufta, jucens bcr.efa, et fra- c Book I. ch. I. 
 
 tibfns Mntrarla. Cic, II PLiliff. 12. 
 
 VOL. III. A Itf
 
 2 PRIVATE BOOK III, 
 
 IN the profecution of the firft of thefe inquiries, we diftin- 
 guifhed rights into two forts ; firft, fuch as concern or are 
 annexed to theperfons of men, and are then called jura per- 
 fonarum, or the rights of perfons ; which, together with the 
 means of acquiring and lofing them, compofed the firft book 
 of thefe commentaries : and, fecondly, fuch as a man may 
 acquire over external objects, or things unconnected with 
 his perfon, which are called jura rerum, or the rights of things j 
 and thefe, with the means of transferring them from man to 
 man, were the fubject 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 
 neceflary, that, before we entered at all into the difcuflion of 
 wrongs, we fhould entertain a clear and diftinct notion of 
 rights : the contemplation of what is jus being necefTarily 
 prior to what may be termed injurta, and the definition of 
 fas precedent to that of nefas. 
 
 WRONGS are divifible into two forts or fpecies ; private 
 wrongs^ and public wrongs. The former are an infringement 
 or privation of the private or civil rights belonging to indivi- 
 duals, confidered as individuals; and are thereupon frequently 
 termed civil injuries : the latter are a breach and violation f 
 public rights and duties, which affect the whole community, 
 confidered as a community ; and are diftinguiflied by the 
 harfher appellation of crimes and mlfdemefnors. 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 referved till the next or concluding volume. 
 
 THE more effectually to accomplifh the redrefs of private 
 injuries, courts of juftice are inftitutcd in every civilized fo- 
 ciety, in order to protect the weak from the infults of the 
 ftronger, by expounding and enforcing thofe Jaws, by which 
 rights are defined, and wrongs prohibited. This remedy is 
 therefore principally to be fought by application to thefe 
 
 courts
 
 Ch. i. WRONGS. 3 
 
 courts of juftice ; that is, by civil fuit or a&ion. For which 
 reafon our chief employment in this volume will be to con- 
 fider the redrefs of private wrongs, by fuit or atlion in courts. 
 But as there are certain injuries of fuch a nature, that fome 
 of them furnifh and others require a more fpeedy remedy, than 
 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 fhall firft of all treat, before I confider the feveral 
 remedies by fuit : and, to that end, {hall diftribute the re- 
 drefs of private wrongs into three feveral fpecies ; firft, that 
 which is obtained by the mere aft of the parties themfelves ; 
 fecondly, that which is effected by the- mere aft and operation 
 of law ; and, thirdly, that which arifes from fuit or aftion 
 in courts ; which confifts in a conjunction of the other two, 
 the act of the parties co-operating with the act of law. 
 
 AND, firft, of that redrefs of private injuries, which is ob- 
 tained by the mere act of the parties. This is of two forts ; 
 firft, that which arifes from the act of the injured party only ; 
 and, fecondly, that which arifes from the joint act of all the 
 parties together: both which I fhall confider in their order. 
 
 OF the firft fort, or that which arifes from the fole a<5t 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 hufband 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 ; and the breach of the peace, which happens, 
 is chargeable upon him only who began the affray d . For the 
 laW, in this cafe, refpects the paffions of the human mind ; 
 and (when external violence is offered to a man himfelf, or 
 thofe to whom he bears a near connection) makes it lawful 
 in him to do himfelf that immediate juftice, to which he is 
 
 * a Roll, Abr. 546. i Hawk. P. C. 131, 
 
 A 2 prompted
 
 4 PRIVATE BOOK III. 
 
 prompted by nature, and which no prudential motives are 
 ftrong enough to reftrain. It confiders that the future pro- 
 cefs of law is by no means an adequate remedy for injuries 
 accompanied with force; fmce it is impoflible 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 violence with another. Self-defence therefore, 
 as it is juftly called the primary law of nature, fo it is not, 
 neither can it be in fact, 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 
 muft be taken, that the refiftance does not exceed the bounds 
 of mere defence and prevention ; for then the defender would 
 himfelf become an aggreflbr. 
 
 II. RECAPTION or reprifal is another fpecies of remedy by 
 the mere aft of the party injured. This happens, when any 
 one hath deprived another of his property in goods or chattel* 
 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 matter, may lawfully claim and retake them, 
 wherever he happens to find them j fo it be not in a riotous 
 manner, or attended with a breach of the peace e . The rea- 
 fon for this is obvious ; fmce it may frequently happen that 
 the owner may have this only opportunity of doing himfelf 
 juftice: his goods may be afterwards conveyed away or de- 
 ftroyed ; and his wife, children, or fervants, concealed or 
 carried out of his reach ; if he had no fpeedier remedy than 
 the ordinary procefs of law. If therefore he can fo contrive 
 it as to gain poffeffion of his property again, without force or 
 terror, the law favours and will juftify his proceeding. But, 
 as the public peace is a, fuperior confederation 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 
 focial juftice muft ceafe, the ftrong would give law to the 
 weak, and every man would revert to a ftate of nature ; for 
 thefe reafons it is provided, tkat this natural right of recap- 
 
 3 Inft. 134. Hal. Anal. . 46, 
 
 tiorj
 
 Ch. i. WRONGS. 5 
 
 tion (hall never be exerted, where fuch exertion muft occafion. 
 ftrifeand bodily contention, or endanger the peace of fociety. 
 If, for inftance, my horfe is taken away, and I find him in 
 a common, a fair, or a public inn, I may lawfully feife him 
 to my own ufe : but I cannot juftify breaking open a private 
 ftable, or entering on the grounds of a third perfon, to take 
 him, except he be felonioufly ftolen f j but muft have recourfe 
 to an action at law. 
 
 III. As recaption is a remedy given to the party himfelf, 
 for an injury to his perfonal 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 
 lawful 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 acT: of the 
 party injured, is the abatement , or removal, of nufances. 
 What nufances are, and their feveral fpecies, we (hall find a 
 more proper place to inquire under fome of the fubfequent 
 divifions. At prefent I (hall only obferve, that whatfoever 
 unlawfully annoys or doth damage to another is a nufance ; 
 and fuch nufance may be abated, that is, taken away or re- 
 moved, by the party aggrieved thereby, fo as he commits no 
 riot in the doing of it '. If a houfe or wall is erected fo near 
 to mine that it flops my antient lights, which is a private 
 nufance, I may enter my neighbour's land, and peaceably 
 pull it down h . Or if a new gate be erected acrofs the pub- 
 lic highway, which is a common nufance, any of the king's 
 fubjedts paffing that way may cut it down, and deftroy it 1 . 
 
 f 2 Rfll. Rep. 55, 56. 208. 2 Roll. > Sail:. 459. 
 Abr. 565, 566. i Cro. Car. 184. 
 
 b 5 Rep. ioi. 9 Rep. 55. 
 
 A 3 And
 
 6 PRIVATE BOOK III. 
 
 And the reafon why the law allows this private and fummary 
 method of doing one's felf juftice, is becaufe injuries of this 
 kind, which obftrudfc 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 juftice. 
 
 V. A FIFTH cafe, in which the law allows a man to be his 
 own avenger, or to minifter redrefs to himfelf, is that of dif- 
 treining cattle or goods for nonpayment of rent, or other 
 duties ; or, diftreining another's cattle damage-feafant, that 
 is, doing damage, or trefpafling, upon his land. The for- 
 mer intended for the benefit of landlords, to prevent tenants 
 from fecreting or withdrawing their effects to his prejudice ; 
 the latter arifmg from the neceflity of the thing itfelf, as it 
 might otherwife be impofiible at a future time to afcertain, 
 whofe cattle they were that committed the trefpafs or damage. 
 
 As the law of diftrefles is a point of great ufe and confe- 
 quence, I (hall confider it with fome minutenefs : by in- 
 quiring, firft, for what injuries a diftrefs may be taken ; 
 fecondly, what things may be diftreined ; and, thirdly, the 
 manner of taking, difpofing of, and avoiding diftrefles. 
 
 T. AND, firft, it is neceffary to premife, that a diftrefs j, 
 dijlrittio, is the taking of a perfonal chattel out of the pof- 
 feflion of the wrongdoer into the cuftody of the party injured, 
 to procure a fatisfaclion for the wrong committed, i. The 
 moft ufual injury, for which a diftrefs may be taken, is that 
 of nonpayment of tent. It was obferved in a former volume k , 
 that diftrefles were incident by the common law to every rent- 
 fervice, and by particular refervation to rent-charges alfo ; 
 but not to rent-feck, till the ftatute 4 Geo. II. c. 28. ex- 
 tended the fame remedy to all rents alike, and thereby in 
 effect abolifhed all material diftin&ion between them. So 
 that now we may lay it down as an univerfal principle, 
 
 j The thing itfelf taken by this pro- law books very frequently called a diflrcls. 
 &, as well as the procefs itfclt", is in our k Bock 11, ch. 3. 
 
 tha
 
 Ch. i. WRONGS. 7 
 
 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 neglecting 
 to do fuit to the lord's court ', or other certain perfonal 
 fervice m , the lord may diftrein, of common right. 3. For 
 amercements in a court-leet a diftrefs may be had of common 
 right ; but not for amercements in a court-baron, without a 
 fpecial prefcription to warrant it n . 4. Another injury, for 
 which diftrefles may be taken, is where a man finds beafts of 
 a ftranger wandering in his grounds, damage-feafunt ; that is, 
 doing him hurt or damage, by treading down his grafs, or 
 the like ; in which cafe the owner of the foil may diftrein 
 them, till fatisfa&ion be made him for the injury he has 
 thereby fuftained. 5. Laftly, for feveral duties and penalties 
 inflidted by fpecial ats of parliament, (as for afleflments 
 made by commiflioners of fewers , or for the relief of the 
 poor P) remedy by diftrefs and fale is given j 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 tf fieri facias^ of which hereafter. 
 
 2. SECONDLY ; as to the things which may be diftreined, 
 or taken in diftrefs, we may lay it down as a general rule, 
 that all chattels perfonal are liable to be diftreined, unlefs 
 particularly protected or exempted. Inftead therefore of 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 r . And, i. As every thing which is 
 diftreined, is preftimed to be the properly of the wrongdoer, 
 it will follow that fuch things, wherein no man can have an 
 abfolute and valuable property (as dogs, cats, rabbets, and 
 
 1 Bro. Air. tit. diftre^. 15. P Stat 43 ElLz. c. ^. 
 
 "> Co. Litt. 46. q 4 Burr. 589. 
 
 Brownl. 36. r Co. Lkt. 47. 
 o Stat. 7 Ann. c, 10. 
 
 A 4 all
 
 8 PRIVATE BOOK Ilf. 
 
 all animals firae naturae) cannot be diftreined. Yet if deer 
 (which are ferae naturae} are kept in a private inclofure for 
 the purpofe of 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 5 . 2. Whatever is in the peribnal 
 life or occupation of any man, is for the time privileged and 
 protected from any diflrefs ; 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 diftreined for 
 rent-arrere; and alfo if a horfe, though a man be riding him, 
 be taken damage feafant, or trefpafTmg in another's 'grounds, 
 the horfe (notwithftanding his rider) may be diftreined and 
 led away to the pound . 3. Valuable things in the way of 
 trade {hall not be liable to diftrefs. As a horfe ftanding in a 
 fmith's fhop to be fhoed, or in a common inn ; or -cloth at 
 a taylor's houfej or corn fent to a mill, or a market. For all 
 thefe are protected 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 cuftomers. But, gene- 
 rally fpeaking, whatever goods and chattels the landlord finds 
 upon the premifes, whether they in facl belong to the tenant 
 or a ftranger, are diftreinable by him for rent : for otherwife 
 a door would be open to infinite frauds upon the landlord ; 
 and the ftranger has his remedy over by action on the cafe 
 againft 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 ftranger's beafts which are found on the 
 tenant's land, the following diftinclions are however taken. 
 If they are put in by confent of the owner of the beafts, they 
 are diftreinable immediately afterwards for rent-arrere by the 
 landlord v . So alfo if the ftranger's cattle break the fences, 
 and commit a trefpafs by coming on the land, they are dif- 
 treinable immediately by the lefibr for his tenant's rent, as a 
 punilhment to the owner of the beafts for the wrong com- 
 mitted through his negligence u . But if the lands were not 
 
 Davis if. Powel, C. B, HI!, I \ Ceo, U. v Cro. Eliz. 549. 
 t I Sid. 440, u Co, Litt, 47, 
 
 fuf.
 
 Ch. i. WRONGS. 9 
 
 fufficiently fenced fo as to keep out cattle, the landlord can- 
 not diftrein them, till they have been levant and coucbant 
 (levantes ft cubantes] 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 whither his cattle 
 have ftrayed, and it is his own negligence not to have taken 
 them away. Yet, if the lefibr 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 
 neglects to remove them w : 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 ferving 
 the commonwealth in his ftation. So, beads of the plough, 
 averia carucae^ and flieep, are privileged from diftrefles at 
 common law x ; while dead goods or other fort of beafts, 
 which Braclon calls catalla otiofa, may be diftreined. But, 
 as beafts of the plough may be taken in execution for debt, 
 fo they may be for diftrefies by ftatute, which partake of the 
 nature of executions ?. And perhaps the true reafon, why 
 thefe and the tools of a man's trade were privileged at the 
 common law, was becaufe the diftrefs was then merely in- 
 tended to compel the payment of the rent, and not as a fatif- 
 faclion for it's nonpayment : and therefore, to deprive the 
 party of the inftruments and means of paying it, would 
 counteract the very end of the diftrefs *. 5. Nothing fhall 
 be diftreined for rent, which may not be rendered again in 
 as good plight as when it was diftreined : for which reafon 
 milk, fruit, and the like, cannot be diftreined ; a diftrefs at 
 
 w Lutw. 1580. y 4 Burr. 589. 
 
 * Stat. 51 Hen. III. ft, 4, dediflric- * #;</. 5 S8. 
 t'miffcacca rii, 
 
 common
 
 10 PRIVATE BOOK IIF. 
 common law being only in the nature of a pledge or fecurity, 
 to be reftored in the fame plight when the debt is paid. So, 
 antiently, {heaves or {hocks of corn could not be diftreined, 
 becaufe fome damage muft needs accrue in their removal : 
 but a cart loaded with corn might ; as that could be fafely 
 reftored. But now by ftatute 2 W. & M. c. 5. corn in 
 {heaves or cocks, or loofe in the ftraw, or hay in barns or 
 ricks, or otherwife, may be diftreined as well as other chat- 
 tels. 6. JLaftly, things fixed to the freehold may not be 
 diftreined ; as caldrons, windows, doors, and chimney- 
 pieces : for they favour of the realty. For this reafon alib 
 corn growing could not be diftreined ; till the ftatute 
 
 11 Geo. II. c. 19. empowered landlords to diftrein corn, 
 grafs, or other products of the earth, and to cut and gather 
 them when ripe. 
 
 LET us next confider, thirdly, how diftrefles may be 
 taken, difpofed of, or avoided. And, firft, I muft premife, 
 that the law of diftrefles is greatly altered within a few years 
 laft paft. Formerly they were looked upon in no other light 
 than as a mere pledge or fecurity, for payment of rent or 
 other duties, or fatisfa&ion for damage done. And fo the 
 law ftill continues with regard to diftrefles of beafts taken 
 damage- feafant, and for other caufes, not altered by act of 
 parliament; over which the diftreinor has no other power 
 than to retain them till fatisfa&ion is made. But diftrefles 
 for rent-arrere being found by the legiflature to be the fhorteft 
 and moft effectual method of compelling the payment of fuch 
 rent, many beneficial laws for this purpofe have been made 
 in the prefent century ; which have much altered the com- 
 mon law, as laid down in our antient writers. 
 
 IN pointing out therefore the methods of diftreining, I 
 {hall 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.
 
 Ch. i. WRONGS. 
 
 ii 
 
 IN the firft place then, all diftreffes muft be made by day, 
 unlefs in the cafe oi damage -feaf ant ; 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 b , 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 poffeflion, continue at the 
 time of the diftrefs. If the leffor does not find fufficient diftrefs 
 on the premifes, formerly he could refort no where elfe ; and 
 therefore tenants, who were knavifh, made a practice 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 confideration : and all perfons privy to, or aflifting 
 in, fuch fraudulent conveyance, forfeit double the value to 
 the landlord. The landlord may alfo diftrein the beafts of 
 his tenant, feeding upon any commons or waftes, appendant 
 or appurtenant to the demifed premifes. The landlord might 
 not formerly break open a houfe, to make a diftrefs, for that is 
 a breach of the peace. But when he was in the'houfe, it was 
 held that he might break open an inner door d : and now e he 
 may, by the afliftance of the peace officer of the parim, break 
 open in the day time any place, whither the goods have been 
 fraudulently removed and locked up to prevent a diftrefs ; oath 
 being firft made, in cafe it be a dwelling-houfe, of a reafon- 
 able ground to fufpeft 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 ; and not for part at 
 one time, and part at another f . But if he diftreins for the 
 whole, and there is not fufficient on the premifes, or he hap- 
 
 a Go. Litt. 142. d Co. Litt. 161. Combcrb. 17. 
 
 b Stat. 8 Ann. c. 14. e Stat. n Geo. II. c. 19. 
 
 * Stat, 8 Ann, c, 14. u Ceo. II, c, 19. f z Lutw. 1532. 
 
 pens
 
 14 PRIVATE BOOK III. 
 
 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 the ftatute of Marlbridge, 52 Hen. III. c. 4. if any 
 man takes a great or unreafonable diftrefs, for rent-arrere 
 he (hall be heavily amerced for the fame. As if h the landlord 
 diftreins two oxen for twelvepence rent ; the taking of both is 
 an unreafonable diftrefs ; but, if there were no other diftrefs 
 nearer the value to be found, he might reafonably have dif- 
 treined one of them. But for homage, fealty, or fuit, as alfo 
 for parliamentary wages, it is faid that no diftrefs can be ex- 
 ceffivej. For as thefe diftrefles cannot be fold, the owner, 
 Bpon making fatisfaction, may have his chattels again. The 
 remedy for exceflive diftreftes is by a fpecial action on the fta- 
 tute of Marlbridge ; for an action of trefpafs is not maintain- 
 able upon this account, it being no injury at the common law '. 
 
 WHEN the diftrefs is thus taken, the next confideration is 
 the difpofal of it. For which purpofe the things diftreined 
 muft in the 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 j if 
 they were taken upon the highway, or the like j in thefe cafes 
 the tenant may lawfully make refcue k . But if they be once 
 impounded, even though taken without any caufe, the owner 
 may not break the pound and take them out j for they are 
 then in the cuftody of the law '. 
 
 A POUND (parcus, which fignifies any inclofure) is either 
 pound-0'zw/, that is, open overhead ; or pound-covert, that 
 is, clofe. By the ftatute i & 2 P. & M. c. 12. no diftrefs 
 of cattle can be driven out of the hundred where it is taken, 
 
 6 Cro. Eliz. 13. Stat. 17 Car. II. c. 7. i i Ventr. 104. Fitzgibb. 85. 
 
 4 Burr. j[9O. 4 Burr. 590. 
 
 fc 2 Inft. 107. k- Co. Litt. 160, 161. 
 
 j Bro. Abr. t.aj/ifc. 191. tirercgaiive. 98. J #1^,47. 
 
 unlefs
 
 Ch. r. WRONG s. 13 
 
 unlefs to a pound-overt within the fame {hire ; and within 
 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 n 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 bac 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 facial pound-overt, fo 
 conftituted for this particular purpofe, the diftreinor muft 
 give notice to the owner: and, in both thefe cafes, the owner, 
 and not the diftreinor, is bound to provide the beafts with 
 food and neceiTaries. But if they are put in a pound-covert, 
 as in a ftable or the like, the landlord or diftreinor muft feed 
 and fuftain them m . 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 fatisfa&ion ; and upon this ac- 
 count it hath been held ", that the diftreinor is not at liberty 
 to work or ufe a diftreined beaft. And thus the law ftill 
 continues with regard to beafts taken damage-feafant, and 
 diftrefles for fuit or fervices j. which muft remain im- 
 pounded, till the owner makes fatisfa&ion ; or contefts the 
 right of diftreining, by replevying the chattels. To replevy* 
 (replegiare, that is, to take back the pledge) is, when a per- 
 fon diftreined upon applies to the fheriffor his officers, and 
 has the diftrefs returned into his own poffeflion j 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 diftreinor. 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 
 
 a Co, Litt, 4;, n Cro. ]^s, 14?, 
 
 law
 
 14 PRIVATE BOOK III. 
 
 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; fince 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 t yet, if he 
 continues obftinate and will make no fatisfaclion or payment, 
 it is no remedy at all to the diftreinor. But for a debt due 
 to the crown, unlefs paid within forty days, the diftrefs was 
 always faleable at the common law . And for an amerce- 
 ment impofed at a court-leet, the lord may alfo fell the dif- 
 trefs p : partly becaufe, being the king's court of record, 
 it's procefs partakes of the royal prerogative 1 j 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 effectuate and 
 complete the remedy. And, in like manner, by feveral ats 
 of parliament r , 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 fherir? or 
 conftable, fhall caufe the fame to be appraifed by two fworn 
 appraifers, and fell the fame towards fatisfa<5Hon of the rent 
 and charges ; rendering the overplus, if any, to the owner 
 himfelf. And, by this means, a full and entire fatisfa&ion 
 may now be had for rent in arrere, by the mere adt of the 
 party himfelf, viz. by diftrefs, the remedy given at common 
 law ; and fale confequent thereon, which is added, by al 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 
 
 Bro. Abr. t. diftrefs. 71 r 2 W. & M. c. 5. 8 Ann. c. 14. 
 P 8 Rep. 41. 4 Geo. II. c. 28. 11 Geo. II. c. 19. 
 
 1 Bro. ibid, 12 Mod, 330. 
 
 one
 
 Ch. i. WRONGS. 15 
 
 one irregularity was committed, it vitiated the whole, and 
 made the diftreinors trefpaflbrs ab initio 3 . But now by the 
 ftatute ii Geo. II. c. 19. it is provided, that, for any un- 
 lawful a& done, the whole (hall not be unlawful, or the 
 parties trefpaflbrs ab initio : but that the party grieved fhall 
 only have an a&ion for the real damage fuftained ; and not 
 even that, if tender of amends is made before any a&ion is 
 brought. 
 
 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 
 a fpecies of rent, the lord may diftrein for this, as well as 
 feize : but for heriot-cuftom (which fir Edward Coke fays c , 
 lies only in prender, and not in render] the lord may feize 
 the identical thing itfelf, but cannot diftrein any other chat- 
 tel for it u . The like fpeedy and effe&ual remedy, of feifing, 
 is given with regard to many things that are faid to lie in 
 franchife ; as waifs, wrecks, eftrays, deodands, and the like ; 
 all which the perfon entitled thereto may feize, without the 
 formal procefs of a fuit or action. Not that they are debarred 
 of this remedy by action ; but have alfo the other, and more 
 fpeedy one, for the better afferting 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 adtion could be 
 brought. 
 
 THESE are the feveral fpecies of remedies, which may be 
 had by the mere al of the party injured. I fhall, next, briefly 
 mention fuch as arife from the joint ait of all the parties to- 
 gether. And thefe are only two, accord, and arbitration. 
 
 I. ACCORD is a fatisfadlion agreed upon between the party 
 injuring and the party injured j which, when performed, is a 
 
 s i Ventr. 37. Cro. 1**, 590, Cro. Car. z6o 
 
 1 Cop. . 25. 
 
 bar
 
 16 PRIVATE BOOK IIT. 
 
 bar of all actions upon this account. As if a man contract 
 to build a houfe or deliver a horfe, and fail in it ; this is an 
 injury, for which the fufferer may have his remedy by action ; 
 but if the party injured accepts a fum of money, or other 
 thing, as a fatisfaction, this is a redrefs of that injury, and 
 entirely takes away the action w . By feveral late ftatutes 
 particularly u 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 juftices of the peace ; even tender of 
 fufficient amends to the party injured is a bar of all actions, 
 whether he thinks proper to accept fuch amends or no. 
 
 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, (imperator 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 r. But the right of real property cannot 
 thus pafs by a mere award z : which fubtilty in point of form 
 (for it is now reduced to nothing elfe) had it's rife from 
 feodal principles; for, if this had been permitted, the land 
 might have been aliened collufively without the confent of 
 the fuperior. Yet doubtlefs an arbitrator may now award a 
 conveyance or a releafe of land ; and it will be a breach of 
 the arbitration-bond to refufe compliance. For, though ori- 
 ginally the fubmiflion to arbitration ufed to be by word, or 
 by deed, yet both of thefe being revocable in their nature, it 
 is now become the practice to enter into mutual bonds, with 
 condition to ftand to the award or arbitration of the arbitrators 
 
 w q Rep. 70. y Brown]. 55. i Freem. 410. 
 
 x Whart. Ar.gl. fact. I. 772. z i Roll, Abr. z$z. I Lord Raym. 115. 
 
 or
 
 Ch. i. WRONGS. 17 
 
 or umpire therein named a . And experience having {hewn 
 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 impoflible to be 
 adjufted on a trial at law ; the legiflature has now eftablifhed 
 the ufe of them, as well in controverfies where caufes are 
 depending, as in thofe where no action is brought, and which 
 {till depend upon the rules of the common law : enacting, by 
 ftatute 9 & 10 W. III. c. 15. that all merchants and others, 
 who defire to end any controverfy, (for which there is no 
 other remedy but by perfonal action or fuit in equity) may 
 agree, that their fubmiflion of the fuit to arbitration or um- 
 pirage {hall be made a rule of any of the king's courts of 
 record : and, after fuch rule made, the parties difobeying the 
 award {hall be liable to be puniflied, as fora contempt of the 
 court ; unlefs fuch award {hall be fet afide, for corruption or 
 other mifbehaviour in the arbitrators or umpire, proved on 
 oath to the court, within one term after the award is made. 
 And, in confequence of this ftatute, it is now become a con- 
 fiderable part of the bufinefs of the fuperior courts, to fet 
 afide fuch awards when partially or illegally made ; or to 
 enforce their execution, when legal, by the fame procefs of 
 contempt, as is awarded for difobedience to thofe rules and 
 orders which are iflued by the courts themfelves. 
 
 a Append. N. III. . 6. 
 
 VOL. III. B
 
 1 8 PRIVATE BOOK III. 
 
 CHAPTER THE SECOND. 
 
 OF REDRESS BY THE MERE OPERATION 
 OF LAW. 
 
 THE remedies for private wrongs, which are effected 
 by the mere operation of the law, will fall within a 
 very narrow compafs : there being only two inftances of this 
 fort that at prefent occur to my recolle&ion j 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. 
 
 Lira 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 are 
 of equal degree 3 . This is a remedy by the mere act of law, 
 and grounded upon this reafon ; that the executor cannot, 
 without an apparent abfurdity, commence a fuit againft him- 
 felf as 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 
 to that particular purpofe. Elfe, by being made executor, 
 
 I Roll Abr. 922, Plowd. 543. 
 
 he
 
 Ch. 2. WRONGS. 1 9 
 
 he would be put in a worfe condition than all the reft of the 
 world befides. For, though a ratable 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 affets among all the creditors hath been 
 hitherto found to be impracticable, and productive of more 
 mifchiefs than it would remedy ; fo that the creditor who 
 firft commences his fuit is entitled to a preference in payment ; 
 it follows, that as the executor can commence no iuit, he 
 muft be paid the laft of any, and of courfe mlift lofe his debt, 
 in cafe the eftate of his teftator fhould prove infolvent, unlefs 
 he be allowed to retain it. The doctrine of retainer is there- 
 fore the necefTary confequence of that other doctrine of the 
 law, the priority of fuch creditor who firft commences his 
 action. 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; 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 his 
 own debt, in prejudice to that of his co-executor in equal 
 degree ; but both mall be difcharged in proportion b . Nor 
 fhall an executor of his own wrong be in any cafe permitted 
 to retain c . 
 
 II. REMITTER is where he, who hath the true property 
 or jus proprietatis in lands, but is out of pofleflion thereof and 
 hath no right to enter without recovering pofleflion in an 
 action, hath afterwards the freehold caft upon him by fome 
 fubfequent, and of courfe defective, title : in this cafe he is 
 remitted, or fent back, by operation of law, to his antient 
 and more certain title d . The right of entry, which he hath 
 gained by a bad title, fhall be ipfo faflo annexed to his own 
 inherent good one ; and his defeafible eftate fhall be utterly 
 defeated and annulled, by the inftantaneous act of law, with- 
 out his participation or confent e . As if A difieifes B, that 
 
 *> Viner Abr. t.Execuien. D. 2. d Litt. . 659. 
 
 c 5 Rep. 30, e Co. Litt. 358. Cro. Jac. 489. 
 
 B 2 is,
 
 20 PRIVATE BOOK III. 
 
 is, turns him out of pofleflion, and dies leaving a fon C ; 
 hereby the eftate defcends to C the fon of A, and B is barred 
 frpm entering thereon till he proves his right in an aftion : 
 now, if afterwards C the heir of the difleifor makes a leafe 
 for life to D, with remainder to B the difleifee for life, and 
 D dies ; 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 remitted, or in of his 
 former and furer eftate f . For he hath hereby gained a new 
 right of pofleflion, to which the law immediately annexes his 
 antient right of property. 
 
 IF the fubfequent eftate, or right of pofleflion, be gained 
 by a man's own aft or confent, as by immediate purchafe 
 being of full age, he fhall not be remitted. For the taking 
 fuch fubfequent eftate was his own folly, and fhall be looked 
 upon as a waiver of his prior right g . 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 caft upon the tenant, not gained by his own 
 aft or folly. The reafon given by Littleton h , 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 pofleflion of the freehold, there is no other perfon againft 
 whom he can bring an aftion, to eftablifh 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 dejli- 
 tniiur, ipfa re valet ; ft at/pa abfit. But there fhall be no 
 
 Finch. L. 194, Lit. $.683. h $.661. 
 
 z Co. Liu. 348. 350. Elcro. c. 9. 
 
 remitter
 
 Ch. 2. WRONGS. 21 
 
 remitter to a right, for which the party has no remedy by 
 action k : as if the iflue in tail be barred by the fine or war- 
 ranty of his anceftor, and the freehold is afterwards caft upon 
 him ; he fliall not be remitted to his eftate tail l : for the 
 operation of the remitter is exactly the fame, after the union 
 of the two rights, as that of a real a&ion would have been 
 before it. As therefore the iflue in tail could not by any 
 action have recovered his antient eftate, he fliall not recover 
 it by remitter. 
 
 AND thus much for thefe extrajudicial remedies, as well 
 for real as perfonal injuries, which are furniflied by the law, 
 where the parties are fo peculiarly circumftanced, as not to 
 be able to apply for redrefs in the ufual and ordinary methods 
 to the courts of public juftice. 
 
 * Co. Lite. 349. ' Moor. 115. i And 286.
 
 2? PRIVATE BOOK III. 
 
 CHAPTER THE THIRD. 
 OF COURTS IN GENERAL. 
 
 /"T 
 
 JL 
 
 next, and principal, obje& of our inquiries is the 
 redrefs of injuries by fuit in courts: wherein the act 
 of the parties and the a& of law co-operate ; the a& 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- 
 quate redrefs. . 
 
 AND here it will not be improper to obferve, that although, 
 in the feveral cafes of redrefs by the aft of the parties men- 
 tioned in a former chapter a , 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 court of judicature can furnim. Therefore, though 
 I may defend myfelf, or relations, from external violence, I 
 yet am afterwards entitled to an action of afiault and battery : 
 though I may retake my goods, if I have a fair and peaceable 
 opportunity, this power of recaption does not debar me from 
 my action of trover or detinue : I may either enter on the 
 lands, on which I have a right of entry, or may demand 
 pofleffion by a real adtion : I may either abate a nufance by 
 my own authority, or call upon the law to do it for me : I 
 may diftrein for rent, or have an action of debt, at my own 
 
 ch. i. 
 
 option :
 
 Ch. 3. WRONGS. 23 
 
 option : If I do not diftrein my neighbour's cattle damage- 
 fiafant, I may compel him by aHon of trefpafs to make me 
 a fair fatisfa&ion : if a heriot, or. a deodand, be withheld 
 from me by fraud or force, I may recover it though I never 
 feized it. And with regard to accords and arbitrations, thefe, 
 in their nature being merely an agreement or compromife, 
 moft indifputably fuppofe a previous right of obtaining 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 
 action, without running into the palpable abfurdity of a 
 man's bringing an action againft himfelf : the two cafes 
 wherein they happen being fuch, wherein the only poflible 
 legal remedy would be directed againft the very perfon him- 
 felf who feeks relief. 
 
 IN all other cafes it is a general and indifputable rule, that 
 where there is a legal right, there is alfo a legal remedy, by 
 fuit or action at law, whenever that right is invaded. And, 
 in treating of thefe remedies by fuit in courts, I fhall purfue 
 the following method : firft, I fhall confider the nature and 
 feveral fpecies of courts of juftice : and, fecondly, I fhall 
 point out in which of thefe courts, and in what manner, the 
 proper remedy may be had for any private injury; or, in 
 other words, what injuries are cognizable, and how redrafted, 
 in each refpective fpecies of courts. 
 
 FIRST then, of courts of juftice. And herein we will 
 confider, firft, their nature and incidents in general j and, 
 then, the feveral fpecies of them, creeled and acknowleged 
 by the laws of England. 
 
 A COURT is defined to be a place wherein juftice is judi- 
 cially adminiftred b . And, as by our excellent conftitution 
 the fole executive power of the laws is vefted in the perfon of 
 the king, it will follow that all courts of juftice, which are 
 
 * Co. Litt. 58. 
 
 64 the
 
 24 PRIVATE BOOK III. 
 
 the medium by which he adminifters the laws, are derived 
 from the power of the crown c . For whether created by aft 
 of parliament, or letters patent, or fubfifting by prefcrip- 
 tion, (the only methods by which any court of judicature d 
 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 Jaw to be always pre- 
 fent ; but as that is in fad impoffible, he is there reprefented 
 by his judges, whofe power is only an emanation of the royal 
 prerogative. 
 
 FOR the more fpeedy, univerfal, and impartial admini- 
 ftration of juftice between fubject and fubjecl:, the law hath 
 appointed a prodigious variety of courts, fome with a more 
 limited, others with a more extenfive jurifdi&ion ; fome 
 conftituted to inquire only, others to hear and determine : 
 fome to determine in the firft inftance, others upon appeal 
 and by way of review. All thefe in their turns will be taken 
 notice of in their refpeHve place : and I fhall therefore here 
 only mention one diftintion, that runs throughout them all; 
 viz. that fome of them are courts of 'record, others not of re- 
 cord. A court of record is that where the ah and judicial 
 proceedings are enrolled in parchment for a perpetual memo- 
 rial and teftimony : which rolls are called 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 fhall be averred againft a record, 
 nor fhall any plea, or even proof, be admitted to the con- 
 trary -. And if the exiftence of a record be denied, it fhall 
 be tried by nothing but itfclf ; that is, upon bare infpection 
 whether there be any fuch record or no ; elfe there would be 
 rio end of difputes. But, if there appear any miftake of the 
 clerk in making up fuch record, the court will direct him to 
 amend it. All courts of record are the king's courts, in right 
 of his crown and royal dignity f , and therefore no other court 
 hath authority to fine or imprifon ; fo that the very erection 
 
 c See book I. ch. 7. e Ibid. 
 
 * Co. Lkt. z6o. f Finch. L. 231. 
 
 of
 
 Ch. 3. WRONGS. 25 
 
 of a new jurifdi<5Kon with power of fine or imprifonment 
 makes it inftantly a court of record . A court not of record 
 is the court of a private man ; whom the law will not intruft 
 with any difcretionary power over the fortune or liberty of his 
 fellow- fubjeb. Such are the courts-baron incident to every 
 manor, and other inferior jurifdictions : where the proceed- 
 ings are nt enrolled or recorded : but as well their exiftence 
 
 o * 
 
 as the truth of the matters therein contained {hall, 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 s; nor of any forcible injury whatfoever, not 
 having any procefs to arreft the perfon of the defendant h . 
 
 IN every court there muft be at leaft three conftituent 
 parts, the aftor^ rens, and judex: the attor, or plaintiff, who 
 complains of an injury done j the reus^ or defendant, who is 
 called upon to make fatisfaclion for it ; and thejudex, or ju- 
 dicial power, which is to examine the truth of the fac\ to 
 determine the law arifmg upon that fad}, 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 afiiftants. 
 
 AN attorney at law anfwers to the procurator > or prodtor, 
 of the civilians and canonifts J . And he is one who is put in 
 the place, ftead, or turn of another, to manage his matters 
 of law. Formerly every fuitor was obliged to appear in per- 
 fon, to profecute or defend his fuit, (according to the old 
 Gothic conftitution k ) unlefs by fpecial licence under the 
 king's letters patent 1 . This is ftill the law in criminal cafes. 
 And an idiot cannot to this day appear by attorney, but in 
 perfon m ; for he hath not difcretion to enable him to appoint 
 
 g Salic. 200. 12 Mod. 388. " nuncvpantur" 
 
 h 2 Inft. 3t r. k Sticrnhook dt jure Gatb, /. I. f. 6. 
 
 i Pope Boniface VIII, In 6. Decretal. 1 F. N. E. 25. 
 
 /. 3. r. 16. . 3. fpcaks of " procvralo- "> Ibid. ZJ. 
 
 " iiius, qa'i in ally ullus ftirtibu! atornati 
 
 a proper
 
 26 PRIVATE Bo OK III. 
 
 a proper fubftitute : and upon his being brought before the 
 court in fo defencelefs a condition, the judges are bound to 
 take care of his interefts, and they fhall admit the beft plea 
 in his behalf that any one prefent can fuggeft". But, as in 
 the Roman law " cum olim in ufu fuijjet^ alterius nomine agi 
 " non poffe, fed^ quia hoc non minimam incommoditatem habebaty 
 " coeperunt homines per procurators litigare ," fo with us, upon 
 the fame principle of convenience, it is now permitted in ge- 
 neral, by divers antient ftatutes, whereof the firft is ftatute 
 Weft. 2. c. 10. that attorneys may be 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 fuperior 
 courts of Weftminfter-hall j and are in all points officers of 
 the refpe&ive 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 
 animadverfion of the judges. No man can pra&ife as an at- 
 torney in any of thofe courts, but fuch as is admitted and 
 fworn an attorney of that particular court : an attorney of 
 the court of king's bench cannot praclife in the court of 
 common pleas ; nor vice verfa. To practife in the court of 
 chancery it is alfo necefTary to be admitted a folicitor therein : 
 and by the ftatute 22 Geo. II. c. 46. no perfon fhall act as 
 an attorney at the court of quarter feffions, but fuch as has 
 been regularly admitted in fome fuperior court of record. So 
 early as the ftatute 4 Hen. IV. c. 18. it was enacted, that 
 attorneys fhould 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. 
 
 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 leaft ftanding, in the inns of courti j and are in our old 
 
 n Bro. Abr. t. iJeot. I. 2 Geo. II. c. 23. 22 Gey. II. .46, 
 
 In/}. 4. tit. ic. 23 Geo. II. c. 26. 
 
 f 3 Jac. I. c. 7. iz Geo. I. c. 29. 1 See vol. I. introd. . i. 
 
 books
 
 Ch. 3. WRONGS. 27 
 
 books ftiled apprentices, apprenticii #d legem^ being looked 
 upon as merely learners, and not qualified to execute the full 
 office of an advocate till they were fixteen years (landing ; at 
 which time, according to Fortefcue r , they might be called 
 to the ftate and degree of ferjeants, or Jervientes ad legem. 
 How antient and honourable this ftate and degree is, the 
 form, fplendor, and profits attending it, have been fo fully 
 difplayed by many learned writers % that they need not be 
 here enlarged on. I mall only obferve, that ferjeants at law 
 are bound by a folemn oath r to do their duty to their clients : 
 and that by cuftom u the judges of the courts of Weflminfter 
 are always admitted into this venerable order, before they 
 are advanced to the bench ; the original of which was pro- 
 bably to qualify the puifne barons of the exchequer to become 
 juftices of aflife, according to the exigence of the ftatute of 
 14 Edw. III. c. 1 6. From both thefe degrees fome arc 
 ufuaJly felected to be his majefty's counfel learned in the law; 
 the two principal of whom are called his attorney, and foli- 
 citor, general. The firft king's counfel, under the degree 
 of ferjeant, was fir Francis Bacon, who was made fo honoris 
 caufa, without either patent or fee w ; fo that the firft of the 
 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 x . 
 Thefe king's counfel anfwer in fome meafure to the advo- 
 cates of the revenue, advocatlfjli^ among the Romans. For 
 they muft not be employed in any caufe againft the crown 
 without fpecial licence ; in which reftriclion they agree with 
 the advocates of the fife y : but in the imperial law the prohi- 
 bition was carried ftill farther, and perhaps was more for the 
 dignity of the fovereign; for, excepting fome peculiar caufes, 
 the fifcal advocates were not permitted to be at all concerned 
 
 T de LL. c. 50. " the degree of ferjeant at law." 
 
 8 Fortefc. ibid. icRep. pref. Dug- t z Inft. 214. 
 lal. Orig. Jurid. To which may be n Fortefc. c. 50. 
 
 added a traft by the late ferjeant Wynne, w See his letters. 256. 
 
 printed in 1765, intitled, " obfervations x See his life by Roger North. 37. 
 "touching the antiquity and dignity of Y CW. 2.9. i. 
 
 in
 
 28 PRIVATE Bo OK III. 
 
 in private fuits between fubjeft and fubject z . A cuftom has 
 of late years prevailed of granting letters patent of precedence 
 to fuch barrifters, as the crown thinks proper to honour 
 with that mark of diftin&ion : whereby they are entitled to 
 fuch rank and pre-audience a 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. 
 Thefe (as well as the queen's attorney and folicitor general 5 ) 
 rank promifcuoufly with the king's counfel, and together 
 with them fit within the bar of the refpe&ive courts : but 
 receive no falaries, and are not fworn ; 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 prote&ion and defence of any fuitors, 
 whether plaintiff or defendant; who are therefore called their 
 clients, like the dependants upon the antient Roman orators. 
 Thefe indeed pra<Stifed gratis, for honour merely, or at molt 
 for the fake of gaining influence : and fo likewife it is efta- 
 blifhed with us % that a counfel can maintain no a&ion for 
 his fees ; which are given, not as locatio vel conduftio, but as 
 quiddam honorarium \ not as a falary or hire, but as a mere 
 gratuity, which a counfellor cannot demand without doing 
 wrong to his reputation d : as is alfo laid down with regard 
 to advocates in the civil law c , whofe honorarium was directed 
 by a decree of the fenate not to exceed in any cafe ten thoufand 
 
 a Cod. 2. 7. 13. queen's attorney and folicitor. 
 
 a Pre-audience in the courts is rec- 8. Serjeants at law. 
 
 koned of fo much confequence, that it 9. The recorder of London, 
 
 may not be amifs to fubjoin a fliort table 10. Advocates of the civil law. 
 
 of the precedence which ufually obtains it. Barrifters. 
 
 among the praotifcrt. In the court of exchequer two of the moft 
 
 r. The kind's premier ferjeant, (fo experienced barrifters, called thefts-man 
 
 conflicted by fpecial patent.) and the tub-man, (from the places in 
 
 z. The king's antient ferjeant, or the \\hich they fit) have alfo a precedence 
 
 eldeft among the king's ferjeants. in motions. 
 
 3. The king's advocate general. t> Seld. tit. hon. 1.6. 7. 
 
 4. The king's attorney general. c Davis pref. 22. i Chan. Rep. 38. 
 
 5. The king's folicitor general. <] Davis. 23. 
 
 6. The king's ferjeants. e ffi u. 6. i. 
 ", The kiug's counfel, wilh the 
 
 fefterces,
 
 Ch. 3. WRONGS. 29 
 
 fefterces, or about 80 /. of Englifti money f . And, in order 
 to encourage due freedom of fpeech in the lawful defence of 
 their clients, and at the fame time to give a check to the un- 
 feemly licentioufnefs of proftitute and illiberal men (a few of 
 whcm may fometimes infmuate themfelves even into the moft 
 honourable profeffions) it hath been holden that a counfel is 
 not anfwerable for any matter by him fpoken, relative to the 
 caufe in hand, and fuggefted in his client's inftru&ions ; al- 
 though it fhould reflect upon the reputation of another, and 
 even prove abfolutely groundlefs ; but if he mentions an un- 
 truth of his own invention, or even upon inftruclions if it be 
 impertinent to the caufe in hand, he is then liable to an a&ion 
 from the party injured g . And counfel guilty of deceit or 
 collufion are punifhable by the ftatute Weftm. i. 3 Edw. I. 
 c. 28. with imprifonment for a year and a day, and perpetual 
 filence in the courts : a punishment ftill fometimes inflifted 
 for grofs mifdemefaors in practice h . 
 
 t Tac. <w. 1. n. k Raym. 3^6 
 
 K Cro. Jac, oo.
 
 30 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 juftice, which are acknowleged 
 and ufed in this kingdom. And thefe are either fuch as are 
 of public and general jurifdidlion 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 eflablifhed courts of common law 
 and equity ; the ecclefiaftical courts ; the courts military ; 
 and courts maritime. And, firft, of fuch public courts as 
 are courts of common law and equity. 
 
 TH E policy of our antient conftitution, 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 j wherein 
 injuries were redrefied in an eafy and expeditious manner, by 
 the fuffrage of neighbours and friends. Thefe little courts 
 however communicated with others of a larger jurifdi&ion, 
 and thofe with others of a ftill greater power $ afcending 
 gradually from the loweft to the fupreme courts, which were 
 refpe&ively conftituted to correct 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
 
 Ch. 4. . WRONGS. 31 
 
 courfe of juftice flowing in large ftreams from the king, 
 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- 
 frefhed. An inftitution that feems highly agreeable to the 
 dictates of natural reafon, as well as of more enlightened po- 
 licy; being equally fimilar to that which prevailed in Mexico 
 and Peru before they were difcovered by the Spaniards j and 
 that which was eftablifhed in the Jewifh republic by Mofes. 
 In Mexico each town and province had 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, eftablilhed 
 in the capital, and confifting of twelve judges a . Peru, ac- 
 cording to Garcilaflb de Vega, (an hiftorian defcended from 
 the antient Incas of that country) was divided into frhall dif- 
 tricts 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 or fifty families j and two of thefe laft compofed another 
 called a hundred. Ten hundreds conftituted the largeft divi- 
 fion, confiding of a thoufand families ; and each divifion had 
 it's feparate judge or magiftrate, with a proper degree of fub- 
 ordination b . 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 
 <c of fifties, and rulers of tens : and they judged the people 
 " at all feafons j the hard caufes they brought unto Mofes, 
 " but every fmall matter they judged themfelves c ." Thefe 
 inferior courts, at leaft the name and form of them, ftill con- 
 tinue in our legal conftitution : but as the fuperior courts of 
 record have in practice obtained a concurrent original jurif- 
 di&ion with thefe ; and as there is befides a power of removing 
 plaints or actions thither from all the inferior jurifdi&ions; 
 upon thefe accounts (among others) it has happened that 
 
 a Mod, Un. Hift. xxxviii. 469 c Exod. c. 18. 
 
 b Ibid, xxxix, 14. 
 
 thefe
 
 32 PRIVATE BOOK III. 
 
 thefe petty tribunals have fallen into decay, and almoft into 
 oblivion : whether for the better or the worfe, may be mat- 
 ter of fome fpeculation ; when we confider on the one hand 
 the encreafe of expenfe and delay, and on the other the more 
 upright and impartial decifion, that follow from this change 
 of jurifdiction. 
 
 THE order I mall obferve in difcourfmg on thefe feveral 
 courts, conftituted for the redrefs of civil injuries, (for with 
 thofe of a jurifdi&ion merely criminal I fhall not at prefent 
 concern myfelf ) will be by beginning with the loweft, and 
 thofe whofe jurifdiction, 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 moft extenfive and tranf- 
 cendent power. 
 
 I. TH E loweft, and at the fame time the moft expeditious, 
 court of juftice known to the law of England is the court of 
 picpoudrtj curia fedispuherizati: fo called from the dufty feet 
 of the fuitors j or according to fir Edward Coke d , becaufe 
 juftice is there done as fpeedily as duft can fall from the foot. 
 Upon the fame principle that juftice among the Jews was 
 adminiftred in the gate of the city e , that the proceedings, 
 might be the more fpeedy, as well as public. But the ety- 
 mology given us by a learned modern writer f is much more 
 ingenious and fati s factory j it being derived, according to 
 him, horn p'md puldreaux 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 ftevvard of him, who owns or 
 has the toll of the market, is the judge. It was inftituted to 
 adminifter juftice for all commercial injuries done in that 
 very fair or market, and not in any preceding one. So that 
 the injury muft be done, complained of, heard, and deter- 
 mined, within the compafs of one and the fame day, unlefs 
 the fair continues longer. The court hath cognizance of 
 
 * 4 Inft. 27Z. s Harrington's obfenrat. on the flat. 337. 
 
 Ruth. c. $. 
 
 all
 
 Ch. 4. WRONG s. 33 
 
 all matters of contract that can pofiibly arife within the pre- 
 cinl of that fair or market; and the plaintiff muft make oath 
 that the caufe of an action arofe there %. From this court a 
 writ of error lies, in the nature of an appeal, to the courts at 
 Weftminfter h . The reafon of it's inftitution feerris to have 
 been, to do juftice expeditioufly among the variety of per- 
 fons, that refort from diftant places to a fair or market : fmce 
 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 erected, the complaint muft neceflarily have reforted 
 even in the firft inftance to fome fuperior judicature. 
 
 II. THE court- baron is a court incident to every manor in 
 the kingdom, to be holden by the fteward within the faid 
 manor. This court-baron is of two natures 1 : the one is a 
 cuftomary court, of which we formerly fpoke k , appertain- 
 ing entirely to the copyholders, in which their eftates are 
 transferred by furrender and admittance, and other matters 
 tranfacted 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 : for that it is held before the free- 
 holders who owe fuit and fervice to the manor, the fteward 
 being rather the regiftrar than the judge. Thefe courts, 
 though in tHeir nature diftinct, are frequently confounded 
 together. The court we are now confidering, viz. the free- 
 holder's court, was compofed of the lord's tenants, who were 
 the pares of each other, and were bound by their feodal te- 
 nure to aflift their lord in the difpenfation of domeftic 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 
 
 e Stat. 17 Edw. IV. c. 2, Co. Litt. 58. 
 
 b Cro. Eliz. 773. k Book II. ch, 4. ch. 6, and ch. 224 
 
 VOL. III. C amount
 
 54 PRIVATE BOOK III. 
 
 amount to forty (hillings'. Which is the fame fum, or three 
 marks, that bounded the jurifdiclion of the antient Gothic 
 courts in their loweft inftance, m fier ding- court s^ fo called 
 becaufe four were instituted within every fuperior diftrict or 
 hundred m . But the proceedings on a writ of right may be 
 removed into the county court by a precept from the fhcrifF 
 called a ttlt n , " quia tollit atqus eximit caufam e curia ba- 
 ** ronum ." And the proceedings in all other actions may 
 be removed into the fuperior courts by the king's writs of 
 tone p , or accedas ad curiam, according to the nature of the 
 fuit^. After judgment given, a writ alfo of falfe judgment r 
 lies to the courts at Weftminfter 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 
 firft direction given is to caufe the plaint to be recorded, 
 rtcordari facias loquelam. 
 
 III. A HUNDRED court is only a larger court-baron, being- 
 held for all the inhabitants of a particular hundred inftead of 
 a manor. The free fuitors are here alfo the judges and the 
 fteward the 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- 
 rifdiction*. 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 c : but it's inrfitution was 
 probably co-eval with that of hundreds themfelves, which 
 were formerly obferved v to have been introduced though not 
 invented by Alfred, being derived from the polity of the an- 
 tient Germans. The centeni, we may remember, were the 
 principal inhabitants of a diftricT: compofed of different vil- 
 lages, originally in number an hundred, but afterwards only 
 
 l Finch. 248. 1 F.N.B. 4. 70. Finch. L. 444, 445. 
 
 n> Stieruhook dejurt Cab. 1. I. c. a. t F. N..B. 18. 
 
 a F.N.B. 3,4. See append. N. I, $. a. Finch. L. 048. 4 Lift. 467. 
 
 3 Rep. prcf. * 2 Inft. 71. 
 
 r See append. N. I, . j Jf VU. iatrod, . 4. 
 
 called
 
 Ch. 4. WRONGS." 3 
 
 Called by that rtame * ; and who probably gave the fame de- 
 nomination to the difhidt out of which they were chofen. 
 Caefar fpeaks pofitively of the judicial power exercifed in their 
 hundred-courts and courts-baron. '" Prlnclpes regionum, at- 
 " que pagorumj* (which we may fairly conftrue, the lords 
 of hundreds and manors) " inter fuos jus dicunt, controverji- 
 " afque minuunt*." 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 centeni^ the hun- 
 dredors, or jury ; who were taken out of the common free- 
 holders, and had themfelves a fhare in the determination. 
 *' Eliguntur in condlih et prindfes, qui jura per pagos vicofque 
 c< reddunt : centeni fingulis y ex plebe comites, confilium fimul et 
 *' aufloritasy adfunt *." 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 actions. 
 
 IV. THE county court is a court incident to the jurifdic- 
 tion of the {her iff. It is not a court of record, but may hold 
 pleas of debt or damages under the value of forty {hillings z . 
 Over fome of which caufes thefe inferior courts have, by the 
 exprefs words cf the ftatute of Gloucefter 8 , a jurifdiiSHon. 
 totally exclusive of the king's fuperior courts. For in order 
 to be entitled to fue an action of trefpafs for goods before the 
 king's jufticiars, the plaintiff is directed to make affidavit that 
 the caufe cf action does really and bona fide amount to 40 s : 
 which affidavit is now unaccountably difufed b , except in the 
 court of exchequer. The ftatute alfo 43 Eliz. c. 6. which 
 gives the judges in many perfonal actions, where the jury 
 aflefs lefs damages than 401, a power to certify the fame and 
 
 u Centsnl ex jingulis pagh funt, idqut x ae rrorib, German, c, 13. 
 
 ipfuxi inter fuos -vocantur 5 et, quod prlina 7 Stiernhook. /. i, c, 2. 
 
 fwmerus full, jam mmtn et Loner eft, '* 4. Inft. 266, 
 
 Tac. de mor. Germ. c. 6. a 6 Edw. I. c, 8 
 
 w de bell. Gal!. I, 6, c, 22, b a Inft. 391. 
 
 C 2 abridge
 
 36 PR r VAT E BOOK III, 
 
 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 
 fuperior courts for injuries of a trifling value. The county 
 court may alfo hold plea of many real actions, and of all per- 
 fonal adions to any amount, by virtue of a fpecial writ 
 called zju/ticies ; which is a writ empowering the flieriff for 
 the fake of difpatch to do the fame juilice in his county 
 court, as might otherwife be had at Weftminfter c . The 
 freeholders of the county are the real judges in this court, 
 and the fheriff is the minifterial officer. The great conflux 
 ef freeholders, which are fuppofed always- to attend a! the 
 county court, (which Spelman calls forum pkbeiae jujlitiae 
 gt theatrum comitivae poteftatis d ) is the reafon why all acts of 
 parliament at the end of every feffion were wont to be there 
 publifhed by the flieriff ; why all outlawries of abfconding 
 offenders are there proclaimed; and why all popular elections 
 which the freeholders are to make, as formerly of fheriffs 
 and confervators of the peace, and ftill of coroners, verder- 
 ors, and knights of the (hire, muft ever be made in pleno 
 comitatUy or, in full county court. By the flatute 2 Edw. VI. 
 c. 25. no- county court mall be adjourned longer than for 
 one month, confifting of twenty-eight days. And this was 
 alfo the antient ufage, as appears from the laws of king Ed- 
 ward the elder 6 : " praepofitus (that is, the fheriff) adquar- 
 *' tarn circiter feptimanam frequentem populi concionem celebrate ; 
 " cuiquejas dicito ; litefque Jingulas diritnito." In thofe times 
 the county court was a court of great dignity and fplendor, 
 the bifhop and the ealdorman (or earl) with the principal 
 men of the (hire fitting therein to adminifter juftice both in 
 lay and ecclefiaftical caufes f . But it's dignity was much- 
 impaired, when the bifhep was prohibited and the earl neg- 
 leled to attend it. And, in modern times, as proceedings 
 are removeable from hence into the king's fuperior courts, 
 by writ of pans or recordart g , in the fame manner as frorrv 
 
 c Finch. 318. F. N, B, 1531 f LL. Eadgarl. c. 5. 
 
 * GIo/.v. ssiaitatutt 8 F. N r B. 70. Fiacb. 445. 
 
 e. Ji. 
 
 hundred*
 
 Ch. 4. WRONGS. 37 
 
 hundred-courts, and courts-baron ; and as the fame writ of 
 falfe judgment may be had, in nature of a writ of error ; this 
 has occafioned the fame difufe of bringing actions therein. 
 
 THESE are the feveral fpecies of common law courts, 
 which though difperfed univerfally throughout the realm, 
 are neverthelefs of a partial jurifdi&ion, and confined to par- 
 ticular diftri&s : yet communicating with, and as it were 
 members of, the fuperior courts of a more extended and 
 general nature ; which are calculated for the administration 
 of redrefs not in any one lordfhip, hundred, or county only, 
 but 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 antient Saxon conftitution there was only one fu- 
 perior court of juftice in the kingdom : and that had cogni- 
 zance both of civil and fpiritual caufes ; viz. the wittena- 
 gemote, or general council, which aflembled annually or oftener, 
 wherever the king kept his Eafter, Chriftmas, or Whitfon- 
 tide, as well to do private juftice as to confult upon public 
 bufmefs. At the ccnqueft the ecclefiaftical jurifdiction was 
 diverted into another channel ; and the conqueror, fearing 
 danger from thefe annual parliaments, contrived alfo to fe- 
 parate their minifterial power, as judges, from their delibe- 
 rative, as counfellors to the crown. He therefore eftablifhed 
 a conftant court in his own hall, thence called by Bracton h 
 and other antient authors aula regia or aula regis. This court 
 was compofed of the king's great officers of ftate refident in 
 his palace, and ufually attendant on his perfon : fuch as the 
 lord high conftable and lord marefchal, who chiefly prefided 
 in matters of honour and of arms ; 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 houfhold - y the lord chancellor, whofe peculiar 
 
 fc /. 3. tr, I. c. 7. 
 
 C 3 bufmefs 

 
 38 PRIVATE BOOK III. 
 
 bufmefs it was to keep the kind's feal and examine all fuch 
 writs, grants, and letters, as were to pafs under that autho- 
 rity ; 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, a 1 * of whom had a feat in the 
 aula regla^ and formed a kind of court of appeal, or rather of 
 advice, in matters of great moment and difficulty. All thefe 
 in their fcveral departments tranfacted all fecular bufmefs both 
 criminal and civil, and likewife the matters of the revenue : 
 and over all prefided one fpecial magiftrate, called the chief 
 jufticiar or capitalis jujlidarius totius Angliae; who was alfo 
 the principal minifter of ftate, the fecond man in the king- 
 dom, and by virtue of his office guardian of the realm in the 
 king's abfence. And this officer it was, who principally 
 determined all the vaft variety of caufes that arofe in this ex- 
 tenfive jurifdidtion ; and from the plenitude of his power 
 grew at length both obnoxious to the people, and dangerous 
 to the government which employed him.'. 
 
 THIS great univerfal court being bound to follow the 
 king's houfehold in all his progrefles and expeditions, the 
 trial of common caufes therein was found very burthenfome 
 to the fubject. 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 
 enacts, " that communia placita nonfequantur curjam regis^fed 
 " teneantur in allquo loco certj." This certain place was efta- 
 blifhed in Wcftminfter-hall, the place where the aula regis 
 originally fate, when the king refidcd in that city ; "and there 
 it hath ever fince continued. And the court being thus ren- 
 dered fixed and ftationary, the judges became fo too, and a 
 phief with other juftices of the common pleas was thereupon 
 appointed ; with jurifdiclion to hear and determine all pleas 
 of land, and injuries merely civil between fubjecl and fub- 
 jedl. Which critical eftablifhment of this principal court of 
 
 j Spelm, Cl, 331, i, 3. Cilb. Hift, C, P. introd. 17. 
 
 common
 
 Ch. 4. WRONG s." 59 
 
 common law, at that particular juncture and that particular 
 place, gave rife to the inns of court in it's neighbourhood ; 
 and, thereby collecting 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 
 pHiament of Paris to abide conftantly in that metropolis ; 
 which before ufed to follow the perfon of the king, wherever 
 he went, and in which he himfelf ufed frequently to decide 
 the caufes that were there depending : but all were then re- 
 ferred to the fole cognizance of the parliament and it's learned 
 judges k . And thus alfo in 1495 the emperor Maximilian I. 
 fixed the imperial chamber (which before always travelled 
 with the court and houfhold) to be conftantly held at Worms, 
 from whence it was afterwards tranflated to Spire J . 
 
 THE aula regia being thus ftripped of fo confiderable a 
 branch of it's jurif<ji6lion, 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. 
 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) fuh- 
 divided and broken into diftincl: courts of judicature. A 
 court of chivalry was creeled, over which the conftable and 
 marefchal prefided ; as did the fteward of the houmold over 
 another, conftituted to regulate the king's domeftic fervants. 
 The high fteward, with the barons of parliament, formed an 
 auguft tribunal for the trial of delinquent peers; and the ba- 
 rons referved to themfelves in parliament the right of review- 
 ing the fentences of other courts in the laft refort. The diftri- 
 butionof common juftice between man and man was thrown 
 into fo provident an order, that the great judicial officers were 
 
 ' See vol. I. intred. . i. 1 Ibid. xxix. 4.6^ 
 
 k Mod. Un. Hift. xxiii. 396.
 
 4O PRIVATE BOOK III. 
 
 made to form a checque upon each other: the court of chan- 
 cery iffuing all original writs under the great feal to the other 
 courts ; the common pleas being allowed to determine all 
 caufes between private fubje&s ; the exchequer managing 
 the king's revenue ; and the court of king's^bench retaining 
 all the jurifdiction which was not cantoned out to other 
 courts, and particularly the fuperintendence of all the reft by 
 way 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 mifdemefnors, wherein the king (on. behalf of 
 the public) is the plaintiff; and common pleas, which include 
 all civil actions, depending between fubje<l and fubjecr.. 
 The former of thefe were the proper object of the jurifdiction 
 of the court of king's bench ; the latter of the court of com- 
 mon pleas": which is a court of record, and is ftiled by fir 
 Edward Coke m 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 arc 
 likewife here determined ; though in fome of them the king's 
 bench has alfo a concurrent authority. 
 
 THE judges of this court are at prefent n four in number, 
 one chief and three />#//* 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 rifing 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 
 
 King James I, during the greater fully fupplied with judges of the fuperior 
 
 partofliis reign, appointed five judges in courts. And, in fubfequent reigns, 
 
 the courts cf king's bench and common upon the permanent indifpofiticn of a, 
 
 pleas, for the benefit of a cafting vcice judge, a fifth hath been fometimes ap- 
 
 in cafe of a difference in opinion, and pointed. Raym, 475. 
 
 VI. TH
 
 Ch. 4. WRONG s.' 41 
 
 VI. THE court of king's bench (fo called becaufe the king 
 ufed formerly to fit there in perfon % the ftile of the court ftill 
 being coramipfo rege) is the fupreme court of common law in 
 the kingdom; confifting of a chief juftice and three puifne 
 juftices, who are by their office the fovereign confervators 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 empowered? to, deter- 
 mine any caufe or motion, but by the mouth of his judges, 
 to whom he hath committed his whole judicial authority 9. 
 
 THIS court (which as we have faid) is the remnant of 
 the aula regia^ 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 iffuing out of this court in the king's name is return- 
 able " ubicunque fuerimus in Anglia" It hath indeed, for 
 fome centuries paft, ufually fate at Weftminfter, being an an- 
 tient palace of the crown ; but might remoye with the king 
 to York or Exeter, if he thought proper to command it. 
 And we find that, after Edward I had conquered Scotland, 
 it actually fate at Roxburgh r . And this moveable quality, 
 as well as it's dignity and power, are fully exprefled by Brae- 
 ton, when he fays that the juftices of this court are " capi- 
 ' tales ) generales, perpetul^ et major es ; a later e regis refidentes ; 
 * c qui omnium aliorum corrlgere tener.tur injurlas et error es*" 
 And it is moreover efpecially provided in the artlculi fuper 
 cartas* that the king's chancellor, and the juftices of his 
 bench, {hall follow him, fo that he may have at all times 
 near unto him fome that be learned in the laws. 
 
 4 Tnft. 73. James I is faid to hive fate there in per- 
 
 P See book I. ch. 7. The king ufed fon, but was informed by hi judges that 
 
 to decide caufes in perfon in the aula re- he could not deliver an opinion. 
 
 g'.a. " In curia dcmini regh iffe in pro- 1 4 Inft. 7 i . 
 
 '" friafsrfona jura dectrrit" (Dial.de r M. 20, 21 Edw. I. Hale Hift. 
 
 Scaccb. /.i.. 4>> After it's diflblution, C. L. 200. 
 
 king Edward I frequently fate in the /. 3. f. 10. 
 
 court of king's bench. (See the records t 2 8 Edw. J. c, 5. 
 
 cited 4 Burr. 85 1 .; And, i u later times, 
 
 THE
 
 42 PRIVATE BOOK HI; 
 
 THE jurifdiction of this court is very high and tran- 
 fcendent. It keeps all inferior jurifdictions within the bounds 
 of their authority, and may either remove their proceedings 
 to be deterrained 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 
 protects the liberty of the fubjedt, by fpeedy and fummary 
 interposition. It takes cognizance both of criminal and civil 
 caufesj the former in what is called the crown-fide or crovvn- 
 ofRce ; the latter in the plea-fide of the court. The jurif- 
 diction of the crown-fide it is not our prefent bufinefs to 
 conuder : that will be more properly difcufTed in the enfuing 
 volume. But on the plea-fide, or civil branch, it hath an 
 original jurifdiction and cognizance of all actions of trefpafs, 
 or other injury alleged to be committed vi et armis - t of 
 actions for forgery of deeds, maintenance, confpiracy, de- 
 ceit, and actions on the cafe which allege any falfity or 
 fraud: all of which favour of a criminal nature, although 
 the action is brought for a civil remedy ; and make the de- 
 fendant liable in ftrictnefs to pay a fine to the king, as well 
 as damages to the injured party u . The fame doctrine is alfo 
 now extended to all actions on the cafe whatfoever w : but 
 DO action of debt or detinue, OF other mere civil action, can 
 by the common law be profecuted by any fubjedt in this court, 
 by original writ out of chancery * ; though an action of debt, 
 given \)jjlatnte^ may be brought in the king's bench as well 
 as in the common pleas ?. And yet this court might always 
 have held plea of any civil action (other than actions real) 
 provided the defendant was an officer of the court ; or in the 
 cuftody of the marfhall, or prifon-keeper, of this court, for 
 a breach of the peace or any other offence z . And in pro- 
 cefs of time, it began by a fiction to hold plea of all per- 
 fonal actions whatfoever, and has continued to do fo for 
 ages a ; it being furmifed that the defendant is arrefted for a 
 
 Finch. L. 198. 2 Inft. 23. Dy- * 4ln(l. 76. Trye's Jus Filazar. 101, 
 
 vsrfite dt courts, c.tank It rty. y Carth. 234. 
 
 w F. N. B. 86. 92. I LiJlj-. pradt, z 4 inft. 71. 
 
 Reg. 503. Ibid. 72. 
 
 luppofeq
 
 Ch. 4; WRONG SI %$ 
 
 fuppofed trefpafs, which he never has in reality committed ; 
 and, being thus in the cuftody of the marfhall of this court 
 the plaintiff is at liberty to proceed againft him for any othe r 
 perfonal injury : which furmife, of being in the marfhaH's 
 cuftody, the defendant is not at liberty to difpute b . And 
 thefe fictions 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 ficlion (hall extend to work an injury j 
 it's proper operation being to prevent a mifchief, or remedy 
 an inconvenience, that might refult from the general rule of 
 law c . So true it is, that in Jiftione juris femper fubftftit aequi- 
 tas d . In the prefent cafe, it gives the fuitor his choice of 
 more than one tribunal, before which he may inftitute his ac- 
 tion ; and prevents the circuity and delay of juftice, by allow- 
 ing that fuit to be originally, and in the firft inftance, com- 
 menced 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 writ of error all determinations of the 
 court of common pleas, and of all inferior courts of record 
 in England : and to which a writ of error lies alfo from the 
 court of king's bench in Ireland. Yet even this fo high and 
 honourable court is not the dernier refort of the fubjedt : for, 
 if he be not fatisfied with any determination here, he may 
 remove it by writ of error into the houfe of lords, or the 
 court of exchequer chamber, as the cafe may happen, ac- 
 cording to the nature of the fuit, and the manner in which 
 jt 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 
 
 b Thus too in the civil law: centra tatem in re pcjjibili 'ex jufia caufe dij 
 
 fRi'.ncm tion aeimit.'itur probatio : quid (Gothafred. in Ff. I. ^^. t. 3.1 
 fttim effictret probatio -veritatis, vbj fftla c 3 Rgp. 30. a RH. Rep, 502. 
 
 ad-verfus veritatem fnglt? Nam fffu A n Rep. 51. Co, Ljt;t, 350. 
 
 flj/wY aliud ejl, <pam kgu odverjus -veri- 
 
 alfo.
 
 44 PRIVATE BOOK III. 
 
 alfo. It is a very antient court of record, fet up by William 
 the conqueror % as a part of the aula regia f , though regu- 
 lated and reduced to it's prefent order by king Edward I * ; 
 and intended principally to order the revenues of the drown, 
 and to recover the king's debts and duties h . It is called the 
 exchequer, fcaccharium^ from the checqued cloth, refembling 
 a chefs-board, which covers the table there ; and on which, 
 when certain of the king's accounts are made up, the fums 
 are marked and fcored with counters. It confifts of twodivi- 
 fions : the receipt of the exchequer, which manages the royal 
 revenue, and with whieh thefe commentaries have no con- 
 cejn ; and the court or judicial part of it, which is again fub- 
 divided into a court of equity, and a court of common 
 
 THE court of equity is held in the exchequer chamber be- 
 fore the lord treafurer, the chancellor of the exchequer, the 
 chief baron, and three putfne ones. Thefe Mr Selden con- 
 jectures i to have been antiently made out of fuch as were 
 barons of the kingdom, or parliamentary barons ; and thence 
 to have derived their name : which conjecture receives great 
 ftrength from Bracken's explanation of magna carta, c. 14. 
 which directs that the earls and barons be amerced by their 
 peers ; that is, fays he, by the barons of the exchequer k . 
 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 j 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- 
 di&ion of the courts of common pleas, king's bench, and 
 exchequer, was entirely feparate and diftindt : the common 
 pleas being intended to decide all controversies between fub- 
 je& and fubjecT: ; the king's bench to correct 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-> 
 
 * Lamb, jtrcltion. 24. h 4lnft. 103 116. 
 
 f Madoi. Hift. Exch. 109. i Tit. Hon. 2. 5. 16. 
 
 g Spelm, Guii. I, in uJ. kg. vet, apud k /, 3. tr, 2. C. I. ^. 3. 
 
 Wilkiai, 
 
 juft
 
 Ch. 4. W R o N <3 s. 45 
 
 juft and recover his revenue, wherein the king alfo is plain- 
 tiff, as the withholding and nonpayment thereof is an injury 
 to Ills jura fifcalia. But, as by a fi<tion almoft all forts of 
 civil actions are now allowed to be brought in the king's 
 bench, in like manner by another fiction 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- 
 wife privilege to fue and implead one another, or any 
 ftranger, in the fame kind^ of common law actions (where 
 the perfonalty only is concerned) as are profecuted in the 
 court of common pleas. 
 
 THIS gives original to the common law part of their jurif- 
 diction, 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 fufficiens 
 txtfiit) by which he is the lefs able, to pay the king his debt 
 or rent. And thefe fuits are exprefsly directed, 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 articuli fuper cartas m it is enacted, 
 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 in the exchequer as well as the king's accomptant. The 
 furmife, 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 
 
 * 10 Edw, I. c, II. m aS Edw, I, c. 4, 
 
 a bill
 
 '46 PRIVATE Book: IlL 
 
 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-payment of 
 tithes ; in which cafe the furmife of being the king's debtor 
 is no fiction, 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 bufmefs. 
 
 AN appeal from the equity fide of this court lies immedi- 
 ately to the houfe of peers ; but from the common law fide, 
 in purfuance of the ftatute3i Edw. III. c. 12. a writ of error 
 muft be firft brought into the court of exchequer chamber. 
 And from their determination there lies, in the dernier refart % 
 a writ of error to the houfe of lords. 
 
 VIII. THE high court of chancery is the only remaining, 
 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 it's name of chancery, cancellaria^ from the judge who 
 prefides here, the lord chancellor or cancellaritu -, 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 jurifdiction n . 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 figmfied a chief fcribe or fecretary, 
 who was afterwards inverted with feveral judicial powers, and 
 a general fuperintendency over the reft of the officers of the 
 prince. From the Roman empire it parted to the Roman 
 church, ever emulous of imperial ftate ; and hence every 
 bifhop has to this day his chancellor, the principal judge of 
 his confiftory. And when the modern kingdoms of Europe 
 were eftabliflied upon the ruins of the empire, almoft every 
 ftate preferved it's chancellor, with different jurifdidtions 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 inilruments of the crown, 
 
 n 4 loft. 88. 
 
 as
 
 Ch. 4^ WRONG s.' 47 
 
 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 exactly 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 tem- 
 poral lord P. He is a privy counfelior by his office % and, 
 according to lord chancellor Ellefmere r , prolocutor of the 
 houfe of lords by prefcription. To him belongs the appoint- 
 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 yal chapel % he became keeper of the king's 
 conference ; vifitor, in right of the king, of all hofpitals and 
 colleges of the king's foundation j and patron of all the king's 
 livings under the value of 20 /. per annum in the king's books. 
 He is the general guardian of all infants, idiots, and luna- 
 tics ; and has the general fuperintendance of all charitable 
 ufes in the kingdom. And all this, over and above the vaft 
 and extenfive jurifdicliion which he exercifes in his judicial 
 capacity in the court of chancery : wherein, as in the ex- 
 chequer, there are two diftincl: tribunals : the one ordinary, 
 being a court of common law ; the other extraordinary, be- 
 ing 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 afcin 
 facias to repeal and cancel the king's letters patent, when 
 made againft law, or upon untrue fuggeftions ; and to hold 
 plea of petitions, monftrans de droit, traverfes of offices, and 
 the like ; when the king hath been advifed to do any a&, or 
 is put in pofleffion of any lands or goods, in prejudice of a 
 fubje&'s right r . On proof of which, as the king can never 
 
 o Lamb. A-cbeion. 65. I Roll. r of the office cf lord chancellor, edit. 
 
 Abr. 385. 1651. 
 
 p Stat. 31 Hen. VIII. c. 10. s Madox. hift. gfexdi,4*. 
 
 . cflke of lord cjianc, .3, t ^ R. E p. ^, 
 
 be
 
 48 PRIVATE BOOK III. 
 
 be fuppofed intentionally to do any wrong, the law queftions 
 not but he will immediately redrefs the injury ; and refers 
 that confcientious taflc to the chancellor, the keeper of his 
 confcience. It alfo appertains to this court to hold plea of 
 all perfonal actions, where any officer or minifter of the court 
 is a party u . It might likewife hold plea (by feire facias) of 
 partitions of lands in coparcenary w , and of dower x , 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 
 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 z . But if any caufe comes to 
 iflue in this court, that is, if any facl: be difputed between 
 the parties, the chancellor cannot try it, having no power to 
 fummon a jury; but muft deliver the record propria manu 
 into the court of king's bench, where it fhall be tried by the 
 country, and judgment fhall be there given thereon a . 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 b : 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 e being 
 actually brought, fmce the fourteenth year of queen Eliza- 
 beth, A. D. 1572. 
 
 IN this ordinary, or legal, court is alfo kept the officlna 
 jujlitiae : out of which all original writs that pafs under the 
 great feal, all commiilions of charitable ufes, fewers, bank- 
 ruptcy, idiocy, lunacy, and the like, do iflue j and for which 
 it is always open to the fubjecl:, who may there at any time 
 demand and have, ex dekito juftitiae y any writ that his occa- 
 
 4 Jnlr. 80. l Roll. Rep. 287. 4 Inft. 80. 
 
 w Co. Litt. 171. F. N. B. 6z. c The opinion of lord keeper North 
 
 * "Bro.jibr. tit. dower. 66.Moor.565. in 1682 (i Vern. 131. I Equ. Caf. 
 
 y Bro. Air, t. dij'mes. 10. abr. 129.) that no fuch writ of error lay, 
 
 z 2 Roll. Abr. 469. and that an injunction might be iffued 
 
 a Cro. Jac. 12. Lauh. H3. againft it, leems not to have been well 
 
 b Yearbook, 18 Edio. III. 25. coafidered. 
 17^:24. 39^47. Dj-er, 315. 
 
 fions
 
 Ch. 4. WRONGS. 49 
 
 (ions may call for. Thefe writs (relating to the bufinefs of 
 the fubje<5t) and the returns to them were, according to the 
 fimplicity of antient times, originally kept in a hamper, /'# 
 hanaperio-y and the others (relating to fuch matters wherein 
 the crown is immediately or mediately concerned) 1 were pre- 
 ferved in a little fack or bag, in parva baga ; and thence hath 
 arifen the diftition of the hanaper office, and petty bag office, 
 which both belong to the common law court in chancery. 
 
 BuT the extraordinary court, or court of equity, is now 
 become the court of the greateft judicial confequence. This 
 diftinclion between law and equity, as adminiftred in different 
 courts, is not at prefent known, nor feems to have ever been 
 known, in any other country at any time d : and yet the dif- 
 ference of one from the other, when adminiftered by the fame 
 tribunal, Was perfectly familiar to the Romans 6 ; the jus 
 praetorium, or difcretion of the praetor, being diftindl: from 
 the leges or ft'anding laws f : but the power of both centered 
 in one and the fame magiftrate, who was equally intruded, 
 to pronounce the rule of law, arid to apply it to particular 
 cafes by the principles of equity. With us too, the aukt 
 regia, which was the fupreme court of judicature, undoubt- 
 edly adminiftered equal juftice according to the rules of both, 
 or either, as the cafe might chance to require : and, wheri 
 that was broken to pieces, the idea of a court of equity, as 
 diftingulfhed from a court of law, did not fubfift in the ori* 
 ginal plan of partition. For though equity is mentioned by 
 Bra&on E as a thing contrafted to ftri<5l law, yet neither in 
 that writer, nor in Glanvil or Fleta, nor yet in Britton (com- 
 fofed under the aufpices and in the name of Edward I, and 
 
 d The council ofconfcience, inftituted of equity as thofe of pQ/i'tive law. (Lord 
 
 by John III, king of Portugal, to review Kayms. hiftar. law tracls, I. 325, 330. 
 
 the fentences of all inferior courts, and princ. of equit. 44.) 
 
 moderate them by equity, (Mod. Un. f Thus Cicero ; jam itlis promljjit 
 
 Hift. xxii. a? 7.) ieems rather to have " non eff'e flandum, qujs non -videt, qua* 
 
 been a court of appeal. " ceaflus quis netu ct deceptus dolo f>nmi~ 
 
 e Thus too the parliament of Paris, " ferit ? quae quldem plerumqut jurt 
 
 the court of feflion in Scotland, and eve- " fraetorio liberantw, nannulla legibui" 
 
 ry other jurifdiftion in Europe cf which Offic. /. I. 
 
 we have any tolerable account, found all g /, z, f. 7. _//. 23. 
 their decifions as well upon principles 
 
 VOL. III. D treating
 
 go PRIVATE Bo OK III. 
 
 to-eating particularly of courts and their feveral jurifdi&ions) 
 is there a fyllable to be found relating to the equitabk jurif- 
 di&ion of the court of chancery. It feems therefore proba- 
 ble, that when the courts of law, proceeding merely upon 
 the ground of the king's original writs and confining them- 
 felves ftri&ly to that bottom, gave a harfli or imperfect judg- 
 ment, the application for redrefs ufed to be to the king in 
 perfon affifted by his privy council ; (from whence alfo arofe 
 the jurifdi&ion of the court of requefts h , which was virtu- 
 ally abolimed by the ftatute 16 Car. I. c. 10.) and they were 
 wont to refer the matter either to the chancellor and a felefe 
 committee, or by degrees to the chancellor only, who mitigat- 
 ed the feverity or fupplied the defects of the judgments pro- 
 nounced in the courts of law., upon weighing the circum- 
 ftances of the cafe. This was the cuilom not only among 
 our Saxon anceftors, before the inftitution of the azila regia 1 , 
 but alfo after it's diflblution, in the reign of king Edward I k j 
 and perhaps during it's continuance, in that of'Hcnry II '. 
 
 IN thefe early times the chief juridical 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 
 f the clerks in the chancery, who were too much attached to> 
 antient precedents, it is provided by ftatute Weftm. 2. 
 13 EUw. I. c. 24. that " whenfoever from thenceforth in one 
 * cafe a writ (hall be found in the chancery, and in a like 
 *' cafe falling under the feme right and requiring like re- 
 
 * The matters cognizable in this t Nemo ad regent ap pellet pro alljua 
 
 Bburt, immediately before it's diflblu- he, nifijus dcmt tonfc/jui nen poflit. Si 
 
 tion, were " alxnoft all fuits, that by jvs nimis fevcrum Jit, allcviatio dandt 
 
 * colour of equity, or fupplication made f uaeratvr apud regent. LL.Edg.c.z. 
 
 " to the prince, mi>zht be brought be- k Lambard. jfrcbekn. 59. 
 
 " fore him : but originally and proper- ' Joannes S^rifburicnfis (who died' 
 
 " ly all poor aien's fuits, which were A.D. 1182, z6 Hea. II.) fpeaking of 
 
 ' made to his majelty by fupplication 5 the chaacellor's office in the verfes pra- 
 
 " and upon which they were entitled to fixed to his pdycrat'uon, ha"s thefe lines j 
 
 <e have right, without payment of any Bit (ft, qui leges regni cantdlat ixiauis, 
 
 * money for the lame." (Smith's com- Mt aundatefii friicrfis aequafatit, 
 monweakk. b, 3, c. 7.) 
 

 
 Ch. 4, WRONG s. 51 
 
 " medy np precedent of a writ can be produced, the clerks 
 " in chancery (hall agree in forming a new one : and, if 
 *' they cannot agree, it fhall be adjourned to the next par- 
 ** Jiament, where a writ (hall be framed by confent of the 
 *' karned in the law m , left it happen for the future that the 
 <c court of our lord the king be deficient in doing juftice to 
 *' the fuitors." And this accounts for the very great variety 
 of writs of trefpafs on the cafe, to be met with in the regifter ; 
 whereby the fuitor had ready relief, according to the exi- 
 gency of his bufmefs, and adapted to the fpecialty, reafon, 
 and equity of his very cafe n . Which provifion (with a 
 little accuracy in the clerks of the chancery, and a little li- 
 berality in the judges, by extending rather than narrowing 
 the remedial effects of the writ) might have effectually an- 
 fwered 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 P, and, though totally difcoun- 
 tenanced by the courts of common law, were confidered aa 
 fiduciary depofits and binding in confcience by the clergy, 
 the feparate jurifdiction of the chancery as a court of equity 
 began to be eftablifhed 1 ; and John Waltham, who was 
 bifhop of Salifbury and chancellor to king Richard II, by a 
 flrained interpretation of the above-mentioned ftatute of 
 Weftm. 2. deviled the writ of fubpoena^ returnable in the 
 court of chancery only, to make the feoffee to ufes accounta- 
 ble to his cejluy 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 17 Ric. II. 6. directed to 
 give damages to the parties unjuftly aggrieved. But as the 
 
 A great variety of new precedents of " he) neferrolt my cy fivcntemcnt vficctr.e 
 
 writs, in cafes before unprovided for, are " II eft cre,Ji r.cxs atttnbfaa tieh a^hns 
 
 gives by this very ftatute of Weftm. 2. " fur les cafes, et mainlelncmui It iurifdic- 
 
 Lamb. Archeion. 61. " tlon de ao courf, ef d' auter ce^r.'j.'* 
 
 This was the opinion of Fairfax, (Yearb. 21 Edio. IV. 23.) 
 
 a very learned judge in the time of Ed- P See book II. ch. zo. 
 
 vard the fourth,. is fulfotna (fays q Spelm, Clojf, 106. I Lev 142. 
 
 D 2 clergy,
 
 2 PRIVATE BOOK III. 
 
 clergy, fo early as the reign of king Stephen, had attempted 
 to turn their ecclefiaftical courts into courts of equity, by en- 
 tertaining fuits pro laefione fidei^ as a fpiritual offence againft 
 confcience, in cafe of nonpayment of debts or any breach of 
 civil contracts r ; till checked by the conftitutions of Cla- 
 rendon ! , which declared that " placita de debith, que fide in- 
 " ttrpoftta debentur, vel abfque interpojitione fidfi,fmt in jitfticia 
 " regis :" therefore probably the ecclefiaftical chancellors, 
 who then held the feal, were remifs in abridging their own 
 new-acquired jurifdi&ion ; efpecially as the fpiritual courts 
 continued f to grafp at the fame authority as before, in fuits 
 pro laefione fidei^ fo late as the fifteenth century u , till finally 
 prohibited by the unanimous concurrence of all the judges. 
 However, it appears from the parliament rolls w , that in the 
 reigns of Henry IV and V the commons were repeatedly 
 urgent to have the writ offubpoena entirely fupprefled, as be- 
 ing 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 fubverfion of the common law. But though 
 Henry IV, being then hardly warm in his throne, gave a 
 palliating anfwer to their petitions, and aclually parted the 
 ftatute 4 Hen. IV. c, 23. whereby judgments at law are 
 declared 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 practice of the court x . 
 
 * LordLyttelt. Hen. II. b. 3. p. 361. Engli/h tr.-.nfiation, of that flatute : 
 
 not. though in Lyndewode's copy (Pro-is. I. 
 
 s 10 Hen U. c. 15. Speed. 458. z. /. 2.) and in the Cotton MS. (Claud, 
 
 t In 4 Hen III. fuits in court chrif- D. 2.) that claufc is omitted, 
 tian pro laefioni fdei 'upon temporal con- u Yearb. 2 Hen. IV. 10. iiHen* 
 
 trails were adjudged to be contrary to IV. 88. 38 Hen. 1. 29. 20 Edia. 
 
 law. (Fitzh. slbr. t. Proiibitiun. 15.) IV. i O . 
 
 But in the fhttite or writ of circutr.fpc&t w Rot. Parl. 4 Hen. IV. n. 78 & 
 
 tgatls, fuppofed by fome to have iflued 1 10. 3 Hen. V. n*. 46. cited in Pryiuie's 
 
 13 Edw. 1. but more prtbaMy (3 Pryn. a br. of Cotton's records. 410. 412,424. 
 
 Rec. 336.) 9 Edw. II, fa'te pro latfanc S4 g. 4 I B ft. 83. 1 Roll. Abr. 370, 
 
 fdel were allowed to the ccclcfuftical .- x ,,_ 2< 
 
 courts ,-aecnrdirvg to fome antient copies, x R et . p ar l. 14 Edto. IV. \ 33.. 
 
 (Benheletyfc/. antiqu. Lond.i 53 i. 90^. ( not , 4 J W . ///. as cited i Roll. Abr. 
 
 3 Pryn. Rec. 336 ) and the common ^ o> *^.j 
 
 BUT
 
 Ch. 4. WRONGS. 53 
 
 BUT this did not extend very far : for in the antient trea- 
 tife, entitled diverfite des tourtes y , fuppofed to be written very 
 early in the fixteenth century, we have a catalogue of the 
 matters of confcience then cognizable by fubpoena in chan- 
 cery, 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 fome- 
 times (though rarely) a ftatefman : no lawyer having fate in 
 the court of chancery from the times of the chief juftices 
 Thorpe and Knyvet, fucceflively chancellors to king Ed- 
 ward III in 1372 and 1373% 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 b , 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 intrufted to Dr Williams, then 
 dean of Weftminfter, but afterwards bifhop of Lincoln ; who 
 had been chaplain to lord Ellefmere, when chancellor 6 . 
 
 IN the time of lord Ellefmere (A. D. 1616.) arofe that 
 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. Thisconteft 
 was fo warmly carried on, that indictments were preferred 
 againft the fuitors, the folicitors, the counfel, and even a 
 mafter in chancery, for having incurred a praemiinirc, by 
 queftioning in a court of equity a judgment in the court of 
 
 y tit. clanaiy.fol. 196. RadelPs edit. a Wriothe."!}, St John, and Hatton. 
 
 A.D. 1534. h CocJriok/Gai, liner, and Heath. 
 
 z Spelm. Ghff, in. Dujd. ckrsn. ^ B'logr. Btit. 4278. 
 Ser, 50. 
 
 D 3 .king's
 
 54 PRIVATE BOOK III. 
 
 king's bench, obtained by grofs fraud and impofition d . This 
 matter, being brought before the king, was by him referred 
 to his learned council for their advice and opinion ; who re- 
 ported fo ftrongly in favour of the courts of equity , that his 
 majefty gave judgment on their behalf: but, not contented 
 with the irrefragable reafons and precedents produced by his 
 counfel, (for the chief juftice was clearly in the wrong) he 
 chofe rather to decide the queftion by referring it to the ple- 
 nitude of his royal prerogative f . Sir Edward Coke fub- 
 mitted to the decifion *, and thereby made atonement for his 
 error : but this ftruggle, together with the bufmefs of com- 
 mendams (in which he ailed a very noble part h ) and his 
 controlling the commiffioners of fewers ! , were the open and 
 avowed caufes k , firft of his fufpenfion, and foon after of his 
 removal, from his office. 
 
 LORD Bacon, who fucceeded lord Ellefmere, reduced the 
 practice of the court into a more regular fyfrem ; but did not 
 fit long enough to effect 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 
 
 d Bacon's Works. IV.6n, 612.632. firft confulted. The twelve judges joined 
 
 e Whitelocke cf parl. ii. 390. 1 in a memorial to his majefty, declaring 
 
 Chan. Rep. append, n. that their compliance would be contrary 
 
 f " For that it appertained to our to their oaths and the law : but upon 
 
 ' princely office only to judge ever ail being brought before the king and coun- 
 
 judges, and to difeern and deter- cil, they all retraced and promifed obe- 
 
 mine fuch differences, as at any time dience in every fuch cafe for the future ; 
 
 may and fhall arife between cur feve- except fir Edward Coke, who faid, 
 
 ral courtf touching their jurifdi&ions, "that when the cafe happened, he would 
 
 and the fame to fettle and determine, " do his duty." (Sicgr. Brit. 1388.^ 
 as we in our princely wifdom fhall find ' See that article in chap. 6. 
 to ftand moft with our honour, &c." * See lord Ellcfmere's fpeech to fir 
 
 (i Chan. Rep. append. 16.) Henry Montague, the new chief juftice, 
 
 g Seethe entry in the council book, 15 N.-v. 1616. (Moor's reports. 828.) 
 
 z6 July, 1616. (Biogr. Brit. 1390.^ Though fir EtUvard might probably have 
 
 h In a caijfe of the biihop of Winchef- retained his feat, if during his fufpenfion 
 
 ter, touching a ccrr.mndam, king fames he would have complimented lord Villi- 
 
 conceiving that the matter affecled his ers, (the new favourite! with the difpo- 
 
 prercgative, fent letters to the judges not fal of the moft lucrative officeia his court. 
 
 to proceed in, it, till hiaifeU" bad been (Bicgr. Brit, 1391.) 
 
 the
 
 Ch. 4." WRONGS. 55 
 
 the reign of Charles I, did little to improve upon his plan : 
 and even after the reftoration the feal was committed to the 
 earl of Clarendon, who had withdrawn from practice as a 
 lawyer near twenty years j and afterwards to the earl of 
 Shaftefbury, who (though a lawyer by education) had never 
 pradtifed at all. Sir Heneage Finch, who fucceeded in 1673, 
 and became afterwards earl of Nottingham, was a perfon of 
 the greateft abilities and moft uncorrupted integrity ; a 
 thorough matter 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, notwith (rand ing the embarraflrnents raifed by the 
 narrow and technical notions which then prevailed in the 
 courts of law, and the imperfect ideas of redrefs which had 
 pofleffed the courts of equity. The reafon and neceflities of 
 mankind, arifing from the great change in property by the 
 extenfion of trade and the abolition of military tenures, co- 
 operated in eftablifhing his plan, and enabled him in the 
 courfe of nine years to build a fyftem of jurifprudence and 
 jurifdiction upon wide and rational foundations j which have 
 alfo been extended, and improved by many great men, who 
 have fince prefided in chancery. A nd from that time to this, 
 the power and bufmefs of the court have increafed to au 
 amazing degree. 
 
 FROM this court of equity in chancery, as from the other 
 fuperior courts, an appeal lies to the houfe of peers. But 
 there are thefe differences between appeals from a court of 
 equity, and writs of error from a court of law : I. That the 
 former may be brought upon any interlocutory matter, the 
 latter upon nothing but only a definitive judgment. 2. That 
 on writs of error the houfe of lords pronounces the judgment, 
 on appeals it gives direction to the court below to rectify it's 
 own decree. 
 
 IX. THE next court that I fhall mention is one that hath 
 no original jurifdiction, but is only a court of appeal, to 
 correct the errors of other jurifdictions. This is the court 
 of exchequer chamber ; which was firft erected by ftatute 
 
 D 31 Edw,
 
 56 PRIVATE BOOK IIF. 
 
 31 Edw. HI. c. 12. to determine canfes upon writs of error 
 from the common law fide of the court of exchequer. And 
 to that end it confifts of the lord treafurer and lord chancel- 
 lor, with the juftices of the king's bench and common pleas. 
 In imitation of which, a fecond court of exchequer chamber 
 was erected by ftatute 37 Elie. c. 8. confifting of the juftices 
 of the common pleas, and the barons of the exchequer ; be- 
 fore whom writs of error may be brought to reverfe judgments 
 in certain fuits ' originally begun in the court of king's bench. 
 Into the courc al*b 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 m . 
 
 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 
 judicature in the kingdom, having at prefent no original ju- 
 rifdiclion over caufes, but only upon appeals and writs of 
 error ; to rectify any injuftice or miftake of the law, com- 
 mitted by the courts below. To this authority they fucceed- 
 ed of courfe, upon the diflblution of the aula regia. For, as 
 the barons of parliament were conftituent members of that 
 court, and the reft of it's jurifdi&ion was dealt out to other 
 tribunals, over which the great officers who accompanied 
 thofe barons were refpecHvely delegated to prefide 5 it fol- 
 lowed, that the right of receiving appeals, and fuperintending 
 all other jurjfdi<5lions, ftill remained in that noble aflembly, 
 from which every other great court was derived. They are 
 therefore in all caufes the lafl refort, from whofe judgment 
 no farther appeal is permitted ; but every fubordinate tri- 
 bunal muft conform to their determinations. The law repo_ 
 fing an entire confidence in the honour and confcienceof th,e 
 r.oble perfons who compofe this important aflembly, that they 
 
 1 See ch. 25. pag. 411. ? ^.Inft. 119. 2 Bulftr. 146. 
 
 wil
 
 Ch. 4- WRONGS. 57 
 
 will make themfelves mafters of thofe queftions upon which 
 they undertake to decide; fince upon their decifion all pro- 
 perty muft finally depend. 
 
 HITHERTO may alfo be referred the tribunal eftablifhed 
 byftatute i4Edw. 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 griev- 
 ances and delays of juftice in the king's courts, and (with 
 the advice of the chancellor, treafurer, and juftices of both 
 benches) to give directions for remedying thefe inconveni- 
 ences in the courts below. This committee feems to have 
 been eftablifhed, left there fliould be a defect of juftice for 
 want of a fupreme court of appeal, during the intermiffion 
 or recefs of parliament; for the ftatute farther directs, that 
 if the difficulty be fo great, that it may not well be deter- 
 mined without aflent of parliament, it fhall be brought by 
 the faid prelate, earls, and barons unto the next parliament, 
 who {hall finally determine the fame. 
 
 XI. BEFORE I conclude this chapter, I muft alfo mention 
 an eleventh fpecies of courts, of general jurifdiction and ufe, 
 which are derived out of, and acl: as collateral auxiliaries to, 
 the foregoing ; I mean the courts of affife and nijiprius. 
 
 THESE are coinpofed of two or more commiffioners, who 
 are twice in every year fent by the king's fpecial commiffion 
 all round the kingdom, (except London and Middlefex, where 
 courts of nifiprius are holden in and after every term, before 
 the chief or other judge of the feveral fuperior courts ; and 
 except the four northern counties, where the aflifes are taken, 
 only once a year) to try by a j ury of the refpe6li ve counties the 
 truth of fuch matters of fa6l as are then under difpute in the 
 courts of Weftminfter-hall. Thefe judges of aflife came into 
 ufe in the room of the antient juftices ineyre,ju/ticiariiin iti- 
 nere-y who were regularly eftablifhed, if not firft appointed, by 
 the parliament of Northampton, A. D. 1176, 22 Hen. II % 
 with a delegated power from the king's great court or aitla 
 regia^ being looked upon as members thereof: and they after- 
 
 n Seld, Jan. I. 2. .5. Spelm. Cod. 3:9. 
 
 wards
 
 58 P R I V A T ft BOOK III. 
 
 wards made their circuit round the kingdom once in feven 
 jears for the purpofe of trying caufes . They vyere after- 
 wards directed by magna carta, c. 12. to be fent into every 
 county once a year to take or try certain actions then called 
 recognitions or affifes j the moft difficult of which they are 
 cJire&ed to adjourn into the court of common pleas to be there 
 determined. The itinerant juftices were fometimes mere 
 jfuftices of affife, or of dower, or of gaol -deli very, and the 
 like ; and they had fometimes a more general commiffion, to 
 determine all manner of caufes, jufticiarii ad omnia 'placita p : 
 but the prefent juftices of affife and nifi prius are more imme- 
 diately derived from the ftatute Weftm. 2. 13 Edw. T. c. 30. 
 explained by feveral other a&s, particularly the ftatute 14 
 Edw. III. c. 16, and muft be two of the king's juftices of the 
 one bench or the other, or the chief baron of the exchequer, 
 or the king's ferjeants fworn. They ufually make their cir- 
 .cuits in the refpeclive vacations after Hilary and Trinity terms; 
 affifes being allowed to be taken in the holy time of lent by 
 con fent ^ of the biftiops at the king's requeft, as exprefled in 
 ftatute Weftm. i. 3 Edw. I. c. 51. And it was alfo ufual, 
 tluring the times of popery, for the prelates to grant annual 
 licences to the juftices of affife to adminifter oaths in holy 
 times : for oaths being of a facred nature, the logic of thofe 
 deluded ages concluded that they muft. be of ecclefiaftical cog- 
 nizance r . The prudent jcaloufy of our anceftors ordained l 
 that no man of law fhould be judge of affife in his own coun- 
 try: 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 facriiege, for a man to be rrovernor of the province 
 
 O * O * 
 
 in which he was born, or has any civil connexion c . 
 
 Co.Litt.293. Am 126 1 jxfilciarii our juftires of affife was taken from Sa- 
 itinerames -venerur.t apud Wigortnam in mud's going an annual circuit to judge 
 efia-vis S. jfcbanms baptifac ; et tctus IfraeJ. v Sam. yii. 16. 
 
 fwiitatus eos admiture recutawt, quodk'p- r In ftances hereof may be met wi'h 
 
 tem annl ticndum erar.t tlapfi, pof.cj'-uam in the appendix to Spelman's original of 
 
 jufticlarii Ibidem ultimo fcdeniHt. (Anna!, the terms, and in-M. Parker's Anticju:- 
 
 Eccl. Wigern. in Wkan. Angl. facr. J. ties. 109. 
 
 495.) ' f Stat. 4 Edw. III. c. 2. 3 Rich. IL 
 
 P BraEl.l. 3. tr. i c. ir. c. 2. 33 Hen. VIII. 0,24. 
 
 1 It would have been Orange to have Ff. i. ?2. 3. 
 Arnied this content, if, as Whitelocke t C. 9. 29. 4. 
 
 imagines ^OB parl. ii. 2.60.) the hint of THE
 
 Ch. 4. WRONGS: 59 
 
 THE judges upon their circuits now fit by virtue of five 
 feveral authorities, i. The commiflion of t\\z peace. 2. A 
 commiifion of oyer and terminer. 3. A commiffion of general 
 gaol-delivery. The confideration of all which belongs properly 
 to the fubfequent book of thefe commentaries. But the fourth 
 commiilion is, 4. A commiilion of ajjife, directed to the judges 
 and clerk of affife, to take affifes; that is, to take the verdi<5t 
 of a peculiar fpecies of jury called an afiife and fummoned for 
 the trial of landed difputes, of which hereafter. The other 
 authority is, 5. That of niji prius^ which is a confequence 
 of the commifiion of affife ", being annexed to the office of 
 thofe juftices by the ftatute of Weftm. 2. 13 Edw. I. c. 30. 
 And it empowers them to try all^queftions of fadr. iffuing out 
 of the courts at Weftm infter, that are then ripe for trial by 
 jury. The original of the name is this : all caufes com- 
 menced in the courts of Weftminfter-hall are by the courfc 
 of the courts appointed to be there tried, on a day fixed in' 
 fome Eafter or Michaelmas term, by a jury returned from, 
 the county, wherein the caufe of action arifes ; but with this 
 provifo, nlfi prius j uftltia rii ad aj/ifas capiendas venerint j unlefs 
 before the day prefixed the judges of aflife come into the coun- 
 ty in queftion. This they are fure to do in the vacations pre- 
 ceding each Eafter and Michaelmas term, and there difpofe 
 of the caufe; which faves much expenfe and trouble, both 
 to the parties, the jury, and the witnefles. 
 
 THESE are the feveral courts of common law and equity, 
 which are of public and general jurifdiction throughout the 
 kingdom. And, upon the whole, we cannot but admire the 
 wife oeconomy and admirable provifion of our anceftors, in 
 fettling the diftribution of juftice in a method fo well calcu* 
 lated for cheapnefs, expedition, and eafe. By the conftitu- 
 tion which they eftablifhed, all trivial debts, and injuries of 
 fmall confequence, were to be recovered or redreffed in every 
 man's own county, hundred, or perhaps parim. Pleas of 
 freehold, and more important difputes of property, were ad- 
 
 'i SaJk. 454, 
 
 journed
 
 60 P R i v A T t BOOK III. 
 
 journed to the king's court of common pleas, which was fixed 
 in one place for the benefit of the whole kingdom. Crimes 
 and mifdemefnors were to be examined in a court by them- 
 felves ; and matters of the revenue in another diftindt jurif- 
 diction. Now indeed, for the eafe of the fubjedt and greater 
 difpatch of caufes, methods have been found to open all the 
 three fuperior courts for theredrefs of private wrongs ; which 
 have remedied many inconveniences, and yet prefervcd the 
 forms and boundaries handed down to us from high antiquity. 
 If facts are difputed, they are fent down to be tried in the 
 country by the neighbours ; but the law, arifing upon thofe 
 facts, is determined by the judges above: and, if they are 
 miftaken in point of law, there remain in both cafes two fuc- 
 ceflive courrs of appeal, to rectify fuch their mifrakes. If the 
 rigour of general rules does in any cafe bear hard upon indi- 
 viduals, courts of .equity are open to fupply the defects, but 
 not fap the fundamentals, of the law. Laftly, there prefides 
 over all one great court of appeal, which is the laft refort in 
 matters both of law and equity ; and which will therefore 
 take care to preferve an uniformity and equilibrium among all 
 the inferior jurifdictions: a court compofed of prelates felected 
 for their piety, and of nobles advanced to that honour for 
 their perfonal merit, or deriving both honour and merit from 
 an illufrrious train of anceftors ; who are formed by their 
 education, mterefted by their property, and bound upon their 
 confcience and honour, to be (killed in the laws of their 
 country. This is a faithful fketch of the Englim juridical 
 conftitution, as defigned by the mafterly hands of our fore- 
 fathers. Of which the great original lines are ftill ftrong 
 and vifible ; and, if any of it's minuter ftrokes are by the 
 length of time at all obfcured or decayed, they may ftill be 
 with eafe reflored to their prifline vigour: and that not fo 
 much by fanciful alterations and wild experiments (fo fre- 
 quent in this fertile age) as by clofely adhering to the wifdom 
 of the antient plan, concerted by Alfred and perfected by 
 Edward I ; and by attending to the fpirit, without neglect- 
 ing the foFms, of their excellent and venerable inftitutions.
 
 Ch. 5, WRONGS. 61 
 
 CHAPTER THE FIFTH. 
 
 OF COURTS ECCLESIASTICAL, MILL 
 TARY, AND MARITIME. 
 
 BESIDES the feveral courts, which were treated of in 
 the preceding chapter, and in which all injuries are re- 
 drafted, 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 ftill remain fome other courts of 
 a jurifdi&ion equally public and general : which take cogni- 
 sance of other fpecies of injuries, of an ecclefiaftical, mili- 
 tary, and maritime nature; and therefore are properly diftin- 
 guifhed 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 diftinction be- 
 tween the lay and the ecclefiaftical jurifdilion : the county- 
 court was as much a fpiritual as a temporal tribunal : the 
 rights of the church were afcertained and aflerted at the fame 
 time and by the fame judges as the rights of the laity. For 
 this purpofe the bifhop of the diocefe, and the alderman, or 
 in his abfence the fheriff of the county, ufed to fit together 
 in the county court, and had there the cognizance of all 
 caufes as well ecclefiaftical as civil : a fuperior difference be- 
 ing paid to the bimop's opinion in fpiritual matters, and to 
 that of the lay judges in temporal a . This union of power 
 was very advantageous to them both : the prefence of the 
 
 a Cekbttritna bu'ic con-ventui epifcopus jura divina, alter bwr. 
 et +ltltrmannus interfunto ; quorum alter LL, Eadgar, c. 5. 
 
 bimop
 
 62 PRIVATE BOOK III* 
 
 bifhop added weight and reverence to the fheriff's proceed- 
 ings ; and the authority of the fheriff was equally ufeful to 
 the bifhop, by enforcing obedience to his decrees in fuch re- 
 fractory offenders, as would otherwife have 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 eftablimed maxim 
 in the papal fyftem of policy, that all ecclefiaftical perfons 
 and all ecclefiaftical caufes mould be folely and intirely fub- 
 jecl: to ecclefiaftical jurifdiction only : which jurifdi&ion was 
 iuppofed 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 to all inferior tri- 
 bunals. Hence the canon law lays it down as a rule, that 
 *' facer dotes a regibus homrandi funt^ nan judicandi b j" 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 canon) the petitions to be burnt iu 
 their prefence, difmiffing them with this valediction ; " //*, 
 *' et inter vos caufas, vejlras difcutite^ quia dignum nan eft ut nog 
 '* juduemus Deos c ." 
 
 IT was not however till after the Norman conqueft, that 
 this doctrine was received in England ; when William I, 
 (whofe title was warmly efpoufed by the monafteries which 
 he liberally endowed, and by the foreign clergy, whom he 
 brought over in ftioals from France and Italy and planted in 
 the beft preferments of the Englifti church,) was at length 
 prevailed upon to eftablifh this fatal encroachment, and fe- 
 parate the ecclefiaftical court from the civil : whether a&u- 
 ated by principles of bigotry, or by thofe of a more refined 
 policy, in order to difcountenance the laws of king Edward 
 abounding with the fpirit of Saxon liberty, is not altogether 
 
 fc Decrct.fart. ^, cauf. il. qtt. i. (, 41, c /&</, 
 
 certain*
 
 Ch. 5. WRONGS. 63 
 
 certain. But the latter, if not the caufe, was undoubtedly 
 tl> confequence, of this reparation : for the Saxon laws were 
 foon overborne by the Norman judiciaries, when the county 
 court fell into disregard by the bifhop's withdrawing his pre- 
 fence, in obedience to the charter of the conqueror d ; which 
 prohibited any fpiritual caufe from being tried in the fecular 
 courts, and commanded the fuitors to appear before the 
 bifhop only, whofe decifions were directed to conform to the 
 canon law e . 
 
 KING Henry the firft, at his acceflion, among other refto- 
 rations of the laws of king Edward the confeflbr, revived this 
 of the union of the civil and ecclefiaftical courts f . Which 
 was, according to fir Edward Coke s, after the great heat of 
 the conqueft was part, only a reftitution of the antient law 
 of England. This however was ill relifhed by the popifb 
 clergy, who, under the guidance of that arrogant prelate 
 archbiftiop Anfelm, very early difapproved of a meafure that 
 put them on a level with the profane laity, and fubje&ed fpi- 
 ritual men and caufes to the infpection of the fecular magif- 
 trates : and therefore in their fynod at Weftminfter, 3 Hen. I. 
 they ordained that no bifhop (hould attend the difcuffion of 
 temporal caufes h ; which foon diflblved this newly effected 
 union. And when, upon the death of king Henry the firft, 
 
 d Hale. Hift, C. L. 101. Selden. in eant ad ctmitatus et bundrcaa, Jkut feee- 
 
 Eaditi. p. 6. /. 2.4. 4 Inft. 259. Wi!k. rlnt tempore regis Edzvsrdi. (Can. 
 
 LL. Angl. Sax. 292. Hen. I. in Spa!;::, coil. vet. legvm. 301;.) 
 
 e Kulius epifcopus i-el arcbidiacoaus de And what is here oblcurely hmteti a% is 
 
 legibui epifcofa/ibus anplius in bundret fully explained by his code or" laws extant 
 
 placita teneant, -nee caufam que ad regimen in the red book of the exchequer, though 
 
 animarum pertintt ad judictitm fecularium in general but of doubtful authority, 
 
 htminttm adducant : fed juicunque ftcun- cap, 8. Ger.eralia cormtatuumflauta Cfrtts 
 
 dum epifcopales lega, de (juacunque caufa locls et lid'out ter.c^ntur. Intcrjint a-utcta 
 
 vel cuipa inter fellas ut J~uerit, ad locum, epifcopi, cctnites, &c ; et agantur prim* 
 
 quern ad hoc 'epifcopus elegerit et iifmina- debita, iierae cbrijiianitatis jura, fecundt 
 
 verit, vctriat; ibiquc de caufa jua nfpin- rtgts. f.'adta, ftofircr/to cat-fee, faguhria* 
 
 deat\ et rtyn fecundum bundnt, fed fecun- dlgnis fathfaETianibus expleantur. 
 Jumcanmef et epifcopales leges } reciumDes g 2 Inft. 70. 
 
 et epifcopo fuofaciat, h ff e epifcopi foecularium pfacltorxst 
 
 f yh et praeeifig, ut mints de emitattt cffciunfufctj. >&(," Speioi, Cod. 30 1 . 
 
 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 fubjecl only to the bifhop's jurifdi&ionV 
 And as it was about that time that the conteft and emulation 
 began between the laws of England and thofe of Rome k , 
 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 
 impra&icaEle ; 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 ftiled, courts chriftian, (curiae 
 cbrijllanitatli) I fhall begin with the loweft, and fo afcend 
 gradually to the fupreme court of appeal '. 
 
 1. THE archdeacon's court is the moft 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 jurifdi&ion 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. there 1 
 lies an appeal to that of the bifhop. 
 
 2. THE confi/lory court of every diocefan bifliop is held in 
 their feveral cathedrals, for the trial of all ecclefiaftical caufes 
 arifing within their refpective diocefes. The bimop's chan- 
 cellor, or his commiflary, is the judge ; and from his fen- 
 tence there lies an appeal, by virtue of the fame ftatute, to 
 the archbiftiop of each province refpeclively. 
 
 3. THE court of arches is a court of appeal, belonging to 
 the archbiftiop of each province ; whereof the judge is called 
 
 i Ibid. 310. ttde/lafthal /aw. Wood's inftitute of 
 
 k Sec vol. I. introd. . i. the comnun law, and Oughton's or A 
 
 ' For firther particulars fee Burn's judicierum.
 
 Ch. 5. WRONGS. 65 
 
 the dean of the arches ; becaufe he antiently held his court in 
 the church of St Mary le bow (fan ft a Maria de arcubus) 
 though all the principal fpiritual courts are now holden at 
 doctors' commons. His proper jurifdiction is only over the 
 thirteen peculiar parifties belonging to the archbifhop in Lon- 
 don; but the office of dean of the arches having been for a 
 long time united with that of the archbifhop's principal offi- 
 cial, he now, in right of the laft mentioned office, receives 
 and determines appeals from the fentences of all inferior ec- 
 clefiaftical courts within the province. And from him there 
 lies an appeal to the king in chancery (that is, to a court' of 
 delegates appointed under the king's great feal) by ftatute 
 25 Hen. VIII. c. 19. as fupreme head of theEnglifh church, 
 in the place of the bifhop of Rome, who formerly exercifed 
 this jurifdi6tion ; which circumftance alone will furnifh the 
 reafon why the popifh clergy were fo anxious to feparate the 
 fpiritual court from the temporal. 
 
 4. TH E court of peculiars is a branch of and annexed to 
 the court of arches. It has ajurifdiHon over all thofe pariflies 
 difperfed through the province of Canterbury in the midft of 
 other diocefes, which are exempt from the ordinary's jurif- 
 diftion, and fubjecr. to the metropolitan only. All ecclefi- 
 aftical caufes, arifing within thefe peculiar or exempt jurif- 
 diHons, are, originally, cognizable by this court ; from 
 which an appeal lay formerly to the pope, but now by the 
 ftatute 25 Hen. VIII. c. 19. to the king in chancery. 
 
 5. THE prerogative court is eftablimed for the trial of all 
 teftamentary caufes, where the deceafed hath left bona nota- 
 bil'ia within two different diocefes. In which cafe the pro- 
 bate of wills belongs, as we have formerly feen m , to the 
 archbimop of the province, by way of fpecial prerogative. 
 And all caufes relating to the wills, adminiftrations, or lega- 
 cies of fuch perfons are, originally, cognizable herein, be- 
 fore a judge appointed by the arch-bifhop, called the judge 
 of the prerogative court ; from whom an appeal lies by 
 
 n Book II. ch. 32. 
 
 Vo t. III. E ftatute
 
 66 PRIVATE BOOK III. 
 
 ftatute 25 Hen. VIII. c. 19. to the king in chancery, inftead 
 of the pope as formerly. 
 
 I PASS by fuch ecclefiaftical courts, as have only what is 
 called a voluntary and not a contentious , jurifdiclion ; which 
 are merely concerned in doing or felling what no one oppofes, 
 and which keep an open office for that purpofe, (as granting 
 difpen fat ions, licences, faculties, and other remnants of the 
 papal extortions) but do not concern themfelves with admi- 
 mftring redrefs to any injury : and {hall proceed to 
 
 
 
 6. TH E great court of appeal in all ecclefiaftical caufes, 
 viz. the court of delegates ^ judices de'egati, appointed by the 
 king's commiffion under his great feal, and ifluing out of 
 chancery, to reprefent his royal perfon, and hear all appeals 
 to him made by virtue of the before-mentioned f-atute of 
 Henry VIII. This commifficn is ufually filled with lords 
 fpiritual and temporal, judges of the courts at Weftminfter, 
 and doctors of the civil law. Appeals to Rome were always 
 looked upon by the Englifh nation, even in the times of 
 popery, with an evil eye ; as being contrary to the liberty of 
 the fubjec"l, the honour of the crown, and the independence 
 of the whole realm ; and were firft introduced in very tur- 
 bulent times in the fixteenth year of king Stephen (A. D. 
 1151.) at the fame period (fir Henry Spelman obferves) that 
 the civil and canon laws were firft imported into England n . 
 But, in a few years after, to obviate this growing practice, 
 the conftitutions made at Clarendon, u Hen. II. on account 
 of the disturbances raifed by arch-bifliop Becket and other 
 zealots of the holy fee, exprefsly declare , that appeals in 
 caufes ecclefiaftical ought to lie, from the arch-deacon to the 
 diocefan ; from the diocefan to the arch-bifhop of the pro- 
 vince ; and from the arch-bifhop 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 
 
 Ctd. i-d. itg. 315. chap, S. 
 
 power
 
 Ch. 5. WRONG s.' 67 
 
 power of the pope, who was ever vigilant to improve all op- 
 portunities of extending his jurifdi&ion hither, at length ri- 
 vetted the cuftom of appealing to Rome in caufes ecclefiaftical 
 fo ftrongly, that it never could be thoroughly broken off, till 
 the grand rupture happened in the reign of Henry the eighth j 
 when all the jurifcliction ufurped by the pope in matters ec- 
 clefiaftical 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 l^e to him in chancery, which would be abfurd j but, 
 by the ftatute 24 Hen. VIII. c. 12. to all the bifhops of the 
 realm, affembled in the upper houfe of convocation. 
 
 7. A COMMISSION of review is a commiffion fometimes 
 granted, in extraordinary cafes, to revife the fentence of the 
 court of delegates; when it is apprehended they have been 
 led into a material error. This ccmmiilion the king may 
 grant, although the ftatutes 24 & 25 Hen. VIII. before cited 
 declare the fentence of the delegates definitive : becaufe the 
 pope as fupreme head by the canon law ufed to grant fuch 
 commiflion of review ; and fuch authority, as the pope here- 
 tofore exerted, is now annexed to the crown 1 by ftatutes 
 26 Hen. VIII. c. i. and i Eliz. c. i. But it is not matter 
 of right, which the fubjecT: may demand ex debito jujiitiae ; 
 but merely a matter of favour, and which therefore is often. 
 denied. 
 
 THESE are now the principal courts of ecclefiaftical jurif- 
 di<Stion ; none of which are allowed to be courts of record : 
 no more than was another much more formidable jurifdiction, 
 but now defervedly annihilated, viz. the court of the kino-'s 
 high commiffion in caufes ecclefiaftical. This court was erect- 
 ed and united to the regal power r by virtue of the ftatute 
 I Eliz. c. i. inftead of a larger jurifdiclion which had before 
 been exercifed under the pope's authority. It was intended 
 
 P 4 Inft, 341. r 4 Inft. 324. 
 
 <J Ibid. 
 
 *
 
 68 PRIVATE Boo Kill, 
 
 to vindicate the dignity and peace of the church, by reform- 
 ing, ordering, and correcting the ecclefiaftical ftate and per- 
 fons, and all manner of errors, herefies, fchifms, abufes, 
 offences, contempts, and enormities. Under the flicker of 
 which very general words, means were found in that and the 
 two fucceeding reigns, to veft in the high commiflioners 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 reafons this court was 
 juftly aboliflied by ftatute 16 Car. I. c. n. 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 eftabliflied by, the permanent laws 
 of the land, is the court of chivalry, formerly held before the 
 lord high conftable and earl marfhal of England jointly ; but 
 fmce the attainder of Stafford duke of Buckingham under 
 Henry VIII, and the confequent extinguishment of the office 
 of lord high conftable, it hath ufually with refpecl to civil 
 matters been held before the earl marfhal only s . This court 
 by ftatute 13 Ric. II. c. 2. hath cognizance of contracts and 
 other matters touching deeds of arms and war, as well out of 
 the realm as within it. And from it's fentences an appeal 
 lies immediately to the king in perfon l . This court was in 
 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- 
 dition, and want of power to enforce it's judgments; as it 
 can neither fine nor imprifon, not being a court of record ". 
 
 III. TH E maritime courts, or fuch as have power and ju- 
 rifdiclion to determine all maritime injuries, arifing upon the 
 
 I Lev. 230. Show. Parl.Caf. 60. 7 Mod. 127, 
 * 4 Inft. IZ5- 
 
 feas,
 
 Ch. 5. WRONGS. 69 
 
 feas, or in parts out of the reach of the common law, are 
 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 w , and Lam-bard x , it was 
 firft of all eredted 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 collected from ftatute 
 25 Hen. VIII. c. 19. which directs 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 admi- 
 " ral-court." But this is alfo exprefsly declared by ftatute 
 8 Eliz. c. 5. which enadls, that upon appeal made to the 
 chancery, the fentence definitive of the delegates appointed 
 by commiflion (hall be final. 
 
 APPEALS from the vice-admiralty courts in America, and 
 our other plantations and fettlements, may be brought before 
 the courts of admiralty in England, as being a branch of the 
 admiral's jurifdiclion, 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 in 
 any courts of admiralty or vice-admiralty as lawful prize, the 
 appeal lies to certain commiiHoners of appeals confirming 
 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 eftablifhed 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- 
 je6is 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 
 
 w Ck/. 13. * Arcbzkn. 41. 
 
 E 3 permitted
 
 7O PRIVATE Boo Kill. 
 
 permitted In England, is the court of admiralty ; and the 
 court of appeal is in effecT: the king's privy council, the 
 members of which are, in confequence of treaties, com- 
 miflioned under the great feal for this purpofe. In 1748, for 
 the more fpeedy determination of appeals, the judges of the 
 courts of Weftminfter-hall, though not privy counfellors, 
 were added to the commiflion then in being. But doubts 
 being conceived concerning the validity of that commiflion, 
 on account of fuch addition, {he fame was confirmed by 
 ftatute 22 Geo. II. c. 3. with a provifo, that no fentence 
 given under it fhould be valid, unlefs a majority of the com- 
 miflioncrs prefent were actually privy counfellors. But this 
 did not, I apprehend, extend to any future commiflions : 
 and fuch an addition became indeed wholly unnecefTary in 
 the courfe of 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 conducted by a judge, 
 whofe mafterly acquaintance with the law of nations was 
 known and revered by every ftate in Europe Y. 
 
 Y See the fentimems of the prefident Rruffian majefty's Expi/ition Jes ;;t : fs, 
 
 Monteftjuieu, and M. Vattel (a fubjeft &c. A. D. 1753. (Montefijuicu's letters, 
 
 of the king of Pruflia) on the anfwer 5 Mar. 1753. Vattel's dnlt dc'gim* 
 
 tranfmiited by the Engliih court to his /. 2. c. 7. . 84.)
 
 Ch. 6, WRONGS. 71 
 
 CHAPTER THE SIXTH. 
 
 OF COURTS -OF A SPECIAL 
 JURISDICTION. 
 
 IN the two preceding chapters we have confidered the fe- 
 veral courts, whofe jurifd^ftion is public and general ; 
 and which are fo contrived that fome or other of them may 
 adminifter redrefs to every pcflible injury that can arife in the 
 kingdom at large. There yet remain certain others, whofe 
 jurifdi&ion is private and fpecial, confined to particular fpots, 
 or inftituted only to redrefs particular injuries. Thefe are 
 
 I. TH E 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 vert or preenlwerd, and to the covert in which fuch 
 
 O * 
 
 deer are lodged. Thefe are the courts of attachments, of re- 
 gard, of fwcimnote, and vi jujlice-feat. The court of attach- 
 ments, wood-mote, or forty days court, is to be held before 
 the verderors of the foreft once in every forty days a ; and is 
 inftituted to enquire into all offenders againft vert and veni- 
 fon b : who may be attached by their bodies, if taken with 
 the mainour (or mainoeuvre, a mamt) that is, in the very acl 
 of killing venifon or Stealing wood, or preparing fo to do, 
 or by freih and immediate purfuit after the act is done c ; elfe 
 they muft be attached by their goods. And in this forty days 
 court the forefters or keepers are to bring in their attach- 
 
 a Cart, deforcf. 9 Hen. III. c, 8, c Carth^. 
 
 * 4 Inft. 289, 
 
 E 4 mcnts,
 
 72 PRIVATE BOOK III. 
 
 ments, or prefentments de viridi et venatione ; 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 d : for this court can only enquire of, but not 
 convidl offenders. 2. The court of regard^ or furvey of dogs, 
 is to be holden every third year for the lawing or expeditation 
 of maftiffs, which is done by cutting off the claws of the 
 forefeet, to prevent them from running after deer e . No other 
 dogs but maftiffs are to be thus lawed or expedirated, for 
 none other were permitted to be kept within the precindtsof 
 the foreft ; it being fuppofed that the keeping of thefe, and 
 thefe only, was neceffary for the defence of a man's houfe f . 
 
 3. The court of fweinmote is to be holden before the verderors, 
 as judges, by the fteward of the iweinmote thrice in every 
 year g , the fweins or freeholders within the foreft compofing 
 the jury. The principal jurifdicSlion of this court is, firft, to 
 enquire into the oppreflions and grievances committed by the 
 officers of the foreft j " de fuper-oneratione forejlariorum^ et 
 " aliorum miniftrorumforeftae ; et de eorum opprejjionibus populo 
 c< regis illatis :" and, fecondly, to receive and try prefent- 
 ments certified from the court of attachments againft offences 
 in vert and venifon h . And this court may not only enquire, 
 but convicl alfo, which conviction mail be certified to the 
 court of juftice-feat under the feals of the jury j for this court 
 cannot proceed to judgment 1 . But the principal court is, 
 
 4. The court of jujiice-feat^ which is held before the chief 
 juftice in eyre, or chief itinerant judge, capitalis jujlitiarius 
 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 
 urifing k . It may alfo proceed to try prefentments in the 
 inferior courts of the forefts, and to give judgment upon 
 conviction of the fweinmote. And the chief juftice may 
 therefore after prefentment made or indictment found, bu( 
 
 I Cart, de foreft. c. 16. h Stat. 34Edw. I. c. I. 
 
 c Hie!, c. 6. 14 Inft. 289. 
 
 f 4lnft. 308. k 4lnft. 291. 
 C CJK. dcfonjl. c. 8. 
 
 not
 
 Ch. 6. WRONGS. 73 
 
 not before ', iffue his warrant to the officers of the foreft 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 foreft m , 
 it being a court of record : and therefore a writ of error lies 
 from hence to the court of king's bench, to rectify and re- 
 drefs any mal-adminiftrations of juftice n ; or the chief juftice 
 in eyre may adjourn any matter of law into the court of 
 king's bench . Thefe juftices in eyre were inftituted by 
 king Henry II, A. D. n84 p ; and their courts were for- 
 merly very regularly held : but the laft 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 reftoration another 
 was held, pro forma only, before the earl of Oxford * ; but 
 fmce the aera of the revolution in 1688, the foreft laws have 
 fallen into total difufe, to the great advantage of the fubject. 
 
 II. A SECOND fpecies of private courts, is that of commif- 
 fioners of fewer s, This is a temporary tribunal, erected by 
 virtue of a commiffion under the great feal ; which formerly" 
 ufed to be granted pro re nata at the pleafure of the crown r , 
 but now at the difcretion and nomination of the lord chan- 
 cellor, lord treafurer, and chief juftices, purfuant to the 
 fUtute 23 Hen. VIII. c. 5. Their jurifdi&ion is to overlook 
 the repairs of fea banks and fea walls ; and the cleanfing of 
 rivers, public ftreams, ditches and other conduits, whereby 
 any waters are carried off: and is confined to fuch county or 
 particular diftricl: as the commiffion (hall exprefsly name. 
 The commiffioners are a court of record, and may fine and 
 imprifon for contempts s ; 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- 
 
 1 Stat. i Edw. III. c. 8. 7 Ric. II. c, 4. P Hoveden. 
 
 *> 4 Inft. 313. q Noith'slifeoflordGuildford.45. 
 
 n Ibid. 297. r F. N. B. 113. 
 
 Ibid. 295. s I Sid. 145. 
 
 guard
 
 74 PRIVATE BOOK III. 
 
 guard and confervation of the fewers within their commif- 
 fion, either according to the laws and cuftoms of Romney- 
 marfh t , or otherwife at their own difcretion. They may 
 alfo afiefs fuch rates, or fcots, upon the owners of lands 
 within their diftrict, as they fhall judge necefiary : and, if 
 any perfon refufes to pay them, the commiili oners may levy 
 the fame by diitrefs of his goods and chattels; or they may, 
 by ftatute 23 Hen. VIII. c. 5. fell his freehold lands (and 
 by the 7 Ann. c. 10. his copyhold alfo) in order to pay fuch 
 fcots or afiefiments. But their conduct is under the control 
 of the court of king's bench, which will prevent or puniih 
 any illegal or tyrannical proceedings". And yet in the reign 
 of king James I, (8 Nov. 1616.) the privy council took 
 upon them to order, that no action or complaint fhould be 
 profecuted againft the commifiloners, 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 juftice was for countenancing thofe 
 legal proceedings v . The pretence for which arbitrary mea- 
 fures was no other than the tyrant's plea w , of the neceffity of 
 unlimited powers in works of evident utility to the public, 
 " the fuprerae reafon above all reafons, which is the falvation 
 " of the king's lands and people." But now it is clearly held, 
 that this (as well as all other inferior jurifdi&ions) is fubjecl: 
 to the difcretionary coercion of his majefty's court or king's 
 bench x . 
 
 III. THE court of policies of ajjurance, when fubfifting, is 
 erected in purfuance of the ftatute43 Eliz. c. 12 which re- 
 cites the immemorial ufage of policies of afiurance, " by 
 " means whereof it cometh to pafs, upon the lofs or perifhing 
 
 f Romney-marfh in the county of in England may receive light and direc- 
 
 Kent, a tradl containing 24000 f.cres, tion. (4 Inft. 276,) 
 
 is governed by certain antient and equi- u Cro. Jac. 336. 
 
 table laws of fevvers, compofed by Hen- v Moor. 825, S;6. See png. 54. 
 
 ry de Bathe, a vtnerable judge in the w Milt, parad. left. iv. 393. 
 
 reign of king Henry the third ; from * i Ventr. 66. Salk. 146. 
 
 which laws all commiftioiier^ of fewers 
 
 " Of
 
 Ch. 6. WRONG s. 75 
 
 " of any fhip, there followeth not the undoing of any man, 
 *' but the lofs lighteth rather eafily upon many than heavy 
 " upon few, 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 
 " affurers had uled to ftand 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 ended and ordered by certain grave and difcreet mer- 
 " chants appointed by the lord mayor of the city of London ; 
 *' as men by reaibn of their experience fitteft to underiland 
 *' and fpeedily decide thofe caufes :" but that of late years 
 divers perfons had withdrawn themfelves from that courfe 
 of arbitration, and had driven the affured to bring feparate 
 actions at law againft each afiurer : it therefore enables the 
 lord chancellor yearly to grant a {landing commiffion to the 
 judge of the admiralty, the recorder of London, two doctors 
 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 flatute 13 & 14 Car. II. c. 23. empowered 
 to determine in a fummary way all caufes concerning policies 
 of aflurance in London, with an appeal (by-way of bill) to 
 the court of chancery. But the jurifdiftion being fomewhat 
 defective, as extending: only to London, and to no other 
 aflu ranees but thofe on merchandize y, and to fuits brought 
 by the affured only and not by the infurers z , no fuch com- 
 miffion has of late years iflued : but infurance caufes are now 
 ufually determined by the verdict of a jury of merchants, and 
 the opinion of the judges in cafe of any legal doubts; where- 
 by the decifion is more fpeedy, fatis factory, and final : though 
 it is to be wifhed, 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. 
 
 y Styl. 1 66. a Scat. 13 & 14 Car. II. c. zz. . 3 
 
 * j Shew. 395, fc 4, 
 
 IV. THE
 
 76 PR i v AT E BOOK. III. 
 
 IV. THE court of the marjbalfea^ and the palace court at 
 Weftminfter, though two diftindt courts, are frequently 
 confounded together. The former was originally holden 
 before the fteward and marfhal 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 fervice b . It was formerly 
 held in, though not a part of, the aula regis c j and, when 
 that was fubdivided, remained a diftin<St jurifdi&ion : hold- 
 ing plea of all trefpafles committed within the verge of the 
 court, where only one of the parties is in the king's domeftic 
 fervice (in which cafe the inqueft (hall be taken by a jury of 
 the country) and of all debts, contracts and covenants, where 
 both of the contracting parties belong to the royal houlhold ; 
 and then the inqueft fhall be compofed of men of the houf- 
 hold only d . By the ftatute of 13 Ric. II. ft. i.e. 3. (in af- 
 firmance of the common law c ) the verge of the court in this 
 refpect extends for twelve miles round the king's place of re- 
 fidence f . And, as this tribunal was never fubject to the ju- 
 rifdiction of the chief judiciary, no writ of error lay from it 
 (though a court of record) to the king's bench, but only to 
 parliament^, till the ftatutes of 5 Edw. 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 houflaold, actions were frequently difconti- 
 nued h , and doubts having arifen as to the extent of it's jurif- 
 diction ', king Charles I in the fixth year of his reign by his 
 letters patent creeled a new court of record, called the curia 
 txilatii or palace court, to be held before the fteward of the 
 houfhold and knight marfhal, and the fteward of the court, 
 
 b i Bulfh, in. to the diftancc cf three miles, three fu;- 
 
 c F] e t, /. 2. c. 2. longs, three acres, nine feet, nine 
 
 d Artie, fup. cert. 2.8 Edw. I. c. 3. palms, and wine barley corns j as ap- 
 
 Stat. 5 Edw. III. c. 2. 10 Edw. III. pears from a fragment of the lextusKcf- 
 
 &. 2. c. 2. frfifa "ted inDrHkkes's dijjertat. epif- 
 
 c a 111(1.548. tol. 114. 
 
 f By die antient Saxcn conftitution. g i Bulftr. 211, 10 Rep. 79. 
 
 the pax regia, or privilege of the Icing's 1> F. N. B. 241. 2 Infl. 548. 
 
 palace, extended from his palace gs'.e > i Bulftr. 108. 
 
 or
 
 Ch. 6. WRONGS. 77 
 
 or his deputy ; with jurifdiclion to hold plea of all manner 
 of perfonal actions whatfoever, which fliall arife between any 
 parties within twelve miles of his majefty's palace at White- 
 hall k . 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 confiderable con- 
 fequence, it 'is ufually removed on 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 creeled 
 in the environs of London ; in confideration of which the 
 four counfel belonging to thefe courts had falaries granted 
 them for their lives by the ftatute 23 Geo. II. c. 27. 
 
 V. A FIFTH fpecies of private courts of a limited, though 
 extenfive, jurifdi&ion are thofe of the principality of Wales; 
 which upon it's thorough reduction, and the fettling of it's 
 polity in the reign of Henry the eighth 1 , were creeled all 
 over the country ; principally by the ftatute 34 & 35 Hen. 
 VIII. c. 26. though much had before been done, and the 
 way prepared by the ftatute of Wales, 12 Edw. I. and other 
 ftatutes. By the ftatute of Henry the eighth before-mentioned, 
 courts-baron, hundred, and county courts are there efta- 
 blifhed as in England. A feflion is alfo to be held twice in 
 every year in each county, by judges m appointed by the kine;, 
 to be called the great feffions of the feveral counties in Wales : 
 in which all pleas of real and perfonal actions {hall be held, 
 with the fame form of procefs and in as ample a manner as in 
 the court of common pleas at Weftminfter n : and writs of error 
 fhall lie from judgments therein (it being a court of record) 
 to the court of king's bench at Weftminfter. But the ordi- 
 nary original writs or procefs of the king's courts at Weft- 
 minfter do not run into the principality of Wales ; though 
 
 k i Sid. 1 80. Salk 439. pra&ice of thefe courts. at. 5 EHz. c. 
 
 I See Vol. I. introd. \. ^ *j. 8 EJ'z. C. 20. 3 Geo. I. c. 25. . 6. 
 
 m Stat. 1 8 E!iz. c. S. 6 Geo. If. c. 14. 13 Geo. III. c. 51. 
 
 n See, for farther regulation of tke 2 Rull. Rep. 141. 
 
 procefs
 
 ?S PRIVATE BOOK III. 
 
 procefs of execution does P : as do alfo all prerogative writs, 
 as writs of certiorari, quo minus, mandamus, and the like ^ 
 And even in caufes between fuhject and fubjedt, to prevent 
 injuftice through family factions and prejudices, it is held 
 lawful (in caufes of freehold at leaft, if not in all others) to 
 bring an action in the Englifb. courts, and try the fame in 
 the next Englifh county adjoining to that part of Wales 
 where the caufe arifes r . But, on the other hand, to prevent 
 trifling and frivolous'Tuits, it is enacted by ftatute 13 Geo. 
 III. c. 51. that in perfonal actions, tried in any Englifh 
 county, where the caufe of action arofe, and the defendant 
 refides in Wales, if the plaintiff fhall not recover a verdict 
 for ten pounds, he fhall 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 be tried in fuch Englifh county. And if any tranfitory 
 action, the caufe whereof arofe and the defendant is reiident 
 in Wales, fhail be brought in any Englifh county, and the 
 plaintiff fhall not recover a verdict for ten pounds, the 
 plaintiff fhall be nonfuited, and fhall pay the defendant's 
 cofts, deducting thereout the fum recovered by the verdict. 
 
 VI. Ttf E court of the duchy chamber of Lancafter is ano- 
 ther fpecial jurifdiction, held before the chancellor of the du- 
 chy or his deputy, concerning all matter of equity relating 
 to lands holden of the king in right of the duchy of Lancaf- 
 ter 1 : which is a thing very diilindt from the county palatine, 
 (which hath alfo it's feparate chancery, for fealing of writs, 
 and the like 5 ) and comprizes much territory which lies at a 
 vaft diftance from it ; as particularly a very large diftrict fur- 
 rounded by the city of Wt ft mi niter. The proceedings in 
 this court arc the fame as on the equity fide in the courts of 
 exchequer and chancery : j fo that it feeins not to be a court 
 of record : and indeed it has been holden that thofe courts 
 have a concurrent jurifdiction with the duchy court, and may 
 take cognizance of the fame caufes". 
 
 O 
 
 P ^ Bu!. 156. 2 Sswnn, ic;. * I Ventr. 257. 
 Raym. 206. r 4 I'-ft. so~ 
 
 <j Cro. Jac. 4*4. u i Chan. Rep, 55. Toth. 145. 
 
 r Vaugh. 413. Hardr. 66. Karri. 171. 
 
 f Hcb. 77. 2 Lev. 14. VII,
 
 Ch. 6. WRONGS.' , 79 
 
 VII. ANOTHER fpecies of private courts, which are of a 
 limited local jurifdiclion, and have at the fame time an ex- 
 clufive cognizance of pleas, in matters both of law and 
 equity v , are thofe which appertain to the counties palatine 
 of Chefter, Lancafter, and Durham, and the royal franchife 
 of Ely w . In all thefe, as in the principality of Wales, the 
 king's ordinary writs, ifTuing under the great feal out of 
 chancery, do not run ; that is, they are of no force. For, 
 as originally all jura regalia were granted to tke 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 direcl the judge of another's court in 
 what manner to adminifter juflice between the fuitors. Bur, 
 when the privileges of thefe counties palatine and franchifes 
 were abridged by ftatute 27llen. VIILc. 24. it was alfo enact- 
 ed, that all writs and procefs fhould be made in the king's 
 name, but (hould be tejled or wknefled in the name of the 
 owner of the franchife. Wherefore all writs, whereon actions 
 are founded, and which have current authority here, muft be 
 under the feal of the refpe6tive franchifes ; 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 commifiion under the great feal of En- 
 gland. Hither alfo may be referred the courts of the cinque 
 ports, or five mod important havens, as they formerly were 
 efteemed, in the kingdom ; viz, Dover, Sandwich, Romney, 
 Mailings, and Hythe; to which Winchelfcy and Rye have 
 been fince added : which have alfo fimilar franchifes in many 
 refpe&s x with the counties palatine, and particularly an ex- 
 clufive jurifdict-ion (before the mayor and jurats of the ports) 
 in which exclufive jurifdiction 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 Sbepway ; and from the court of Sbepway to the king's 
 
 v 4 Inft. 213. zig. Finch. R. 452. * I Sid. 166. 
 * See vol. I. introd. . 4. 
 
 bench r.
 
 8o PRIVATE BOOK III. 
 
 bench ?. And fo too a writ of error lies from all the other 
 jurifditions to the fame fupreme court of judicature 2 , 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 
 iflue for the fame reafon to all thefe exempt jurifditions a j 
 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 b . 
 
 \ 
 
 VIII. THE ftannary courts in Devonfhire and Cornwall 
 for the adminiftration of juftice among the tinners therein, 
 are alfo courts of record, but of the fame private and exclu- 
 flve nature. They are held before the lord warden and his 
 fubftitutes, in virtue of a privilege granted to the workers in 
 the tinmines there, to fue and be fued only in their own 
 courts, that they may not be drawn from their bufmefs 
 which is highly profitable to the public, by attending their 
 lawfuits in other courts c . The privileges of the tinners are 
 confirmed by a charter, 33 Edw. I. and fully expounded by 
 a private ftatute, 50 Edw. III. which d has fince been ex- 
 plained by a public a&, 16 Car. I. c. 15. What relates to 
 our prefent purpofe is only this : that all tinners and labourers 
 in and about the ftannaries fhall, during the time of their 
 working therein bonafide^ be privileged from fuits of other 
 courts, and be only impleaded in the flannary 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 e 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 f , when 
 he hath had livery or inveftiture of the fame %. And from 
 thence the appeal lies to the king himfelf, in the laft refort h . 
 
 y Jenk. 71. Dyvcrfyte des courts, t. t 4 Inft. 233. 
 
 tank h roy. i Sid. 356. <1 See this at length in 4 Lift. 231. 
 
 z Bro. Abr. t, error. 74. ioi. Davis. e 4 Inft, 231. 
 
 62. 4 Inft. 38.214, 218. f 7^.230. 
 
 a I Sid. 92. K 3 Bulft. 183. 
 
 k Cro. Jac. 543. h Dderidge hift. of Cornw. 94. 
 
 IX. THE
 
 Ch. 6. WRONGS. Si 
 
 IX. THE feveral courts within the city of London 1 , and 
 other cities, boroughs, and corporations throughout the king- 
 dom, held by prefcription, charter, or aft of parliament, are 
 alfo of the fame private and limited fpecies. It would exceed 
 the defign and compafs of our prefent enquiries, if I were to 
 enter into a particular detail of thefe, and to examine the 
 nature and extent of their feveral jurifdiclions. 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 erected, upon the fame principle that hundred- 
 courts, and the like, were eftabliflied ; for the convenience 
 of the inhabitants, that they may profecute their fuits, and 
 receive juftice at home : that, for the moft part, the courts 
 at Weftminfter-hall have a concurrent jurifdiction with thefe, 
 or elfe a fuper-intendency over themJ : and that the proceed- 
 ings, in thefe fpecial courts ought to be according to the 
 courfe of the common law, unlefs otherwife ordered by par- 
 liament ; for though the king may erecl: new courts, yet he 
 cannot alter the eftablifhed courfe of law. 
 
 BUT there is one fpecies of courts, conftituted by ac"l of 
 parliament, in the city of London and other trading and 
 populous diftricls, which in it's proceedings fo varies from 
 the courfe of the common law, that it may deferve a more 
 particular confideration. I mean the courts of requefts, or 
 courts of confcience, for the recovery of fmall debts. The 
 firft of thefe was eftablifhed in London, fo early as the reign 
 of Henry the eighth, by an at of their common council ; 
 which however was certainly inefficient for that purpofe and 
 illegal, till confirmed by ftatute 3 Jac. I. c. 15. which has 
 fince been explained and amended by ftatute 14 Geo.II. c. 10. 
 The conftitution is this : two aldermen, and four commoners, 
 fit twice a week to hear all caufes of debt not exceeding the 
 
 i The chief of thofe in London are the king's commiflion, who ufed to fit in 
 
 fienjfs courts, holden before their {reward the church of St. Martin h grand. 
 
 or judge; from which a writ of error (F. N. B. 32.) And from the judgment 
 
 lies to the court of buffings, before the of thofe juftices a writ of error l:cs im- 
 
 mayor, recorder, and fheriiTs ; and mediately to the houfi; of lords. 
 
 from thence to juftice.s ap^oyitsd by the j Salk. 144. 263, 
 
 VOL, III. F value
 
 32 PRIVATE BOOK III. 
 
 value of forty (hillings ; which they examine in a fummary 
 way, by the oath of the parties or other witnefles, and make 
 fuch order therein as is confonant to equity and good con- 
 fcience. The time and expenfe of obtaining this fummary 
 redrefs are very inconfiderable, which make it a great benefit 
 to trade ; and thereupon divers trading towns and other dlf- 
 tridfo have obtained afls of parliament, for eftablifhing in 
 them courts of confcience upon nearly the fame plan as that 
 in the city of London. 
 
 THE anxious defire, that has been (hewn to obtain thefe 
 feveral acls, proves clearly that the nation in general is truly 
 fenfible of the great inconvenience, arifing from the difufe of 
 the antient county and hundred-courts ; wherein caufes of 
 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 erecting thefe new 
 jurifdiftions) may itfelf be attended in time with very ill 
 confequences : as the method of proceeding therein is entirely 
 in derogation of the common law ; as their large difcreticnary 
 powers create a petty tyranny in a fet of ftanding commif- 
 fioners ; and as the difufe of the trial by jury may tend to ef- 
 trange the minds of the people from that valuable prerogative 
 of Englifhmen, which has already been more than fufficiently 
 excluded in many inftances. How much rather is it to be 
 wiflied, 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 
 into their proceedings, and the power that either party have 
 of transferring at pleafure their fuits to the courts at Weft- 
 minder ! And we may with fatisfadtion obferve, that this 
 experiment has been actually tried, and has fucceeded in the 
 populous county of Middlefex j which might ferve as an 
 example for others. For by ftatute 23 Geo. II. c. 33. it is 
 enadted, i. That a fpecial county court fhall be held, at 
 leaft once a month in every hundred of the county of Middle- 
 fex,
 
 Ch. 6. WRONGS. 83 
 
 fex, by the county clerk. 2. That twelve freeholders of that 
 hundred, qualified to ferve on juries, and {truck by the 
 fheriff, (hall be fummoned to appear at fuch court by rotation j 
 fo as none fhall be fummoned oftener than once a year. 
 
 3. That in all caufes, not exceeding the value of forty fnil- 
 lings, the county clerk and twelve fuitors fhall proceed in a 
 fummary way, examining the parties and witnefTes on oath, 
 without the formal procefs antiently uled ; ana fhall make 
 fuch order therein as they {hall judge agreeab' 10 to confcience. 
 
 4. That no plaints {hall be removed out of this court, by 
 any procefs whatfoever ; but the determination herein fhall 
 be final. 5. That if any action be brought in any of the fu- 
 perior courts againft a perfon refident in Middlefex, for a 
 debt or contract, upon the trial whereof the jury {hall find 
 lefs than 40 s damages, the plaintiff {hall recover no cofts, 
 but fhall pay the defendant double cofts ; unlefs upon fome 
 fpecial circtimftances, to be certified by the judge who tried 
 it. 6. Laftly, a table of very moderate fees is prefcribed and 
 fet down in the adit ; which are not to be exceeded upon any 
 account whatfoever. This is a plan entirely agreeable to the 
 conftitution and genius of the nation : calculated to prevent 
 a multitude of vexatious actions in the fuperior courts, and 
 at the fame time to give honeft creditors an opportunity of 
 recovering fmall fums ; which now they are frequently de- 
 terred from by the expenfe of a fuit at law : a plan which, in 
 fhort, wants only to be generally known, in order to it's 
 univerfal reception. 
 
 X. THERE is yet another fpecies of private courts, which 
 I muft not pafs over in filence : viz. the chancellor's courts 
 in the two univerfities of England. Which two learned 
 bodies enjoy the fole jurifdiction, in exclufion of the king's 
 courts, over all civil actions and fuits whatfoever, where a 
 fcholar or privileged perfon is one of the parties ; excepting 
 in fuch cafes where the right of freehold is '..oncerned. 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 cuftoms, at their difcretion ; 
 which has generally led them to carry on their procefs in a 
 
 F 2 courfe
 
 4* PRIVATE BOOK III; 
 
 courfe much conformed to the civil law, for reafons fuifi- 
 ciently explained in a former volume k . 
 
 THESE privileges were granted, that the ftudents might 
 not be diftra<5ted from their ftudies by legal procefs from dif- 
 tant courts, and other forenfic avocations. And privileges of 
 this kind are of very high antiquity, being generally enjoyed 
 by all foreign univerfities as well as our own, in confequence 
 (I apprehend) of a conftitution of the emperor Frederick, 
 A. D. 1158 J . But as to England in particular, the oldeft 
 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 almoft every fuc- 
 ceeding prince, down to king Henry the eighth ; in the 
 fourteenth year of whofe reign the largeft and moft extenfive 
 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 ; for though the king might eret new 
 courts, yet he could not alter the courfe of law by his letters 
 patent. Therefore in the reign of queen Elizabeth an a<l of 
 parliament was obtained m , confirming all the charters of the 
 two univerfities, and thofe of 14 Hen. VIII. and ^Eliz. by 
 name. Which UeJJed att, as fir Edward Coke entitles it ", 
 eftablifhed this high privilege without any doubt or oppofi- 
 tion : or, as fir Matthew Hale? very fully exprefles the fenfe 
 of the common law and the operation of the acl: of parlia- 
 ment, " although king Henry the eighth, 14 A. R. fui, 
 *' granted to the univerfity a liberal charter, to proceed ac- 
 " cording to the ufe of the univerfity j viz. by a courfe much 
 ** conformed to the civil law ; yet that charter had not been 
 " fufficient to have warranted fuch proceedings without the 
 " help of an acl: of parliament. And therefore in 13 Eliz. 
 
 * Vol. I. Introd. . j. Jenk. Cent. a. pi. 88. Cent. 3; 
 
 1 Cod. 4. tit. 13, pi, 33. Hardr. 504. Godbolt. ZOJ. 
 
 13 Eli/, c. 29. P Hift. C. L. 33, 
 4lnft. 217. 
 
 "an
 
 Ch. 6, WRONGS. $5 
 
 ** an a& patted, whereby that charter was in effe& enacted ; 
 " and it is thereby that at this day they have a kind of civil 
 " law procedure, even in matters that are of themfelves of 
 " 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 in the chancellor's court j the judge of which 
 is the vice-chancellor, his deputy, or aflcflbr. 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 leaft by the ftatutes of the univerfity % accord- 
 ing to the rule of the civil law r . But, if there be any dif- 
 cordance or variation in any of the three fentences, an appeal 
 lies in the laft 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 fpecial courts, of the greateft note in the kingdom, infti- 
 tuted for the local redrefs of private wrongs ; and muft, in 
 the clofe of all, make one general obfervation from fir Ed- 
 ward Coke s : that thefe particular jurifdi&ions, derogating 
 from the general jurifdi&ion of the courts of common law, 
 are ever taken ftri&ly, and cannot be extended farther than 
 the exprefs letter of their privileges will moft explicitly 
 warrant. 
 
 q Tit. 21. . 19. a Inft. 548. 
 
 * M/. 7. 70. i.
 
 86 PRIVATE BOOK III. 
 
 CHAPTER THE SEVENTH. 
 
 OF THE COGNIZANCE OF PRIVATE 
 WRONGS, 
 
 WE are now to proceed to the cognizance of private 
 wrongs ; that is, to confider in which of the vaft 
 variety of courts, mentioned in the three preceding chapters, 
 every poflible 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 neceflarily remarked as thofe refpec~Uve 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 feyeral courts of public or general jurif- 
 diclion. And the order, in which I fhall purfue this inqui- 
 ry, will be by (hewing; i. What actions may be broughtj 
 or what injuries remedied, in the ecclefiaftical courts. 2. 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 time 
 been claimed or pretended to belong to their jurifdiclion, by 
 the officers and judges of thofe refpe&ive courts; but what 
 the common law allows and permits to be fo. For thefe ec- 
 centrical tribunals (which are principally guided by the rules 
 pf the impejial and canon laws) as they fubfift and are ad- 
 mitted
 
 Ch. 7. WRONGS. 87 
 
 mitted in England, not by any right of their own % but upon 
 bare fufferance and toleration from the municipal laws, muft 
 have recourfe to the laws of that country wherein they are 
 thus adopted, to be informed how far their jurifdi&ion ex- 
 tends, or what caufes are permitted, and what forbidden, to 
 be difcuffed or drawn in queftion before them. It matters 
 not therefore what the pande<5ts of Juftinian, or the decretals 
 of Gregory have ordained. They are here of no more in- 
 trinfic authority than the laws of Solon and Lycurgus : cu- 
 rious perhaps for their antiquity, refpe&able 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 jurifdi&ion. Every nation muft 
 and will abide by it's own municipal laws ; which various 
 accidents confpire to render different in almoft every country 
 in Europe. We permit fome kinds of fuits to be of ecclefia- 
 ftical cognizance, which other nations have referred entirely 
 to the temporal courts j 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 
 (hort, the common law of England is the one uniform rule 
 to determine the jurifdiction of courts : and, if any tribunals 
 v/hatfoever attempt to exceed the limits fo prefcribed them, 
 the king's courts of common law may and do prohibit them ; 
 and in fome cafes punifli their judges b . 
 
 HAVING premifed this general caution, I proceed now to 
 confider 
 
 I. THE wrongs or injuries cognizable by the ecclefiaftical 
 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 
 (pro falutc animae^ as immoralities in general are, when un- 
 connected with private injuries) but fuch as are there to be 
 profecuted for the fake of the party injured^ to make him a fatif- 
 
 a See vol. I. intrcxh . i. b Hal. Hi ft. C. L. c. z. 
 
 F 4 fadion
 
 88 PRIVATE BOOK IIF, 
 
 faction and redrefs for the damage which he has fuftained. 
 And thefe I fhall reduce under three general heads ; of caufes 
 pecuniary, caufes matrimonial, and caufes tejlamentary. 
 
 I. PECUNIARY caufes, cognizable in the ecclefiafticaj 
 courts, are fuch as arife either from the withholding ecclefiaf- 
 tical dues, or the doing or negle&ing fome a<5l relating to the 
 church, whereby fome damage accrues to the plaintiff; to- 
 wards obtaining a fatisfa&iori for which, he is permitted to 
 inftitute a fuit in the fpiritual court. 
 
 THE principal of thefe is the fubftra&ion or withholding 
 of tithes from the parfon or vicar, whether the former be a 
 clergyman or a lay appropriator c . But herein a diftin&ion. 
 muft be taken : for the ecclefiaftical courts have no jurifdic- 
 tion to try the right of tithes unlefs between fpiritual perfons d ; 
 but in ordinary cafes, between fpiritual men and lay men, 
 are only to compel the payment of them, when the right is 
 not difputed e . By the ftatute or rather writ f of circumfpefte 
 agatis g , it is declared that the court chriftian fhall not be 
 prohibited from holding plea, " fi rtfitr petat verfus parochia- 
 " nos oblationes et dccimas debitas et confuetas :" fo that if any 
 difpute arifes whether fuch tithes be due and accujlomed, this 
 cannot be determined in the ecclefiaftical court, but before 
 the king's courts of the common law ; as fuch queftion af- 
 fects the temporal inheritance, and the determination muft 
 bind the real property. But where the right does not come, 
 into queftion, but only the faft^ whether or no the tithes 
 allowed to be due be really fubtracled or withdrawn, this is 
 a tranfient perfonal injury, for which the remedy may proper- 
 ly be had in the fpiritual court ; viz. the recovery of the 
 tithes, or thtir equivalent. By ftatute 2 & 3 Edw. VI. c. 13. 
 it is enadTted, that if any perfon (hall carry off his predial 
 tithes (viz. of corn, hay, or the iike) before the tenth part 
 
 e Stat. 32 Hen. VIII. c. 7. f See Barringtcn. 123. 3 Pryn. Rec. 
 
 < 2 Roll. Abr. 309, 310. Bro, dbr. 336. 
 
 t.jurifJiniin. 85. B 13 Idw, I. ft. 4. or rather, 9 Edw* 
 
 c 2 Lift. 364. 489, 490. JJ,
 
 Ch. 7. WRONGS. 89 
 
 is duly fet forth, or agreement is made with the proprietor, or 
 fhall willingly withdraw his tithes of the fame, or fhall ftop 
 or hinder the proprietor of the tithes or his deputy from view- 
 ing or carrying them away ; fuch offender fliall pay double 
 the value of the tithes, with cofts, to be recovered before 
 the ecclefiaftical judge, according to the king's ecclefiaftical 
 laws. By a former claufe of the fame ftatute, the treble value 
 of the tithes, fo fubtra&ed or withheld, may be fued for in 
 the temporal courts, which is equivalent to the double value 
 to be fued for in the ecclefiaftical. For one may fue for and 
 recover in the ecclefiaftical courts the tithes themfelves, or a 
 recompenfe for them, by the antient law ; to which the fuit 
 for ihe double value is fuperadded by the ftatute. But as no 
 fuit lay in the temporal courts for the fubtraclion of tithes 
 themfelves, therefore the ftatute gave a treble forfeiture, if 
 fued for there; in order to make the courfe of juftice uniform, 
 by giving the fame reparation in one court as in the other* 1 . 
 However it now feldom happens that tithes are fued for at all 
 in the fpiritual court j for if the defendant pleads any cuftom, 
 modus, compofition, or other matter whereby the right of 
 tithing is called in queftion, this takes it out of the 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 
 any fingle, much iefs an ecclefiaftical, judge ; without the 
 verdicl of a jury. But a more fummary method than either 
 of recovering fmall tithes under the value of 40*. is given by 
 ftatute 7 & 8 W. III. c. 6. by complaint to two jufticcs of 
 the "peace : and, by another ftatute of the fame year j, 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 clues to the 
 clergy ; as penfions, mortuaries, compofitions, offerings, and 
 whatfoever falls under the denomination of furpiice-fees, for 
 piarriages or other minifterial offices of the church : all 
 yvhich injuries are redrefled by a decree for their adual pay- 
 
 * 2 Inft. 2501 j t. 3^, 
 
 ment.
 
 $o PRIVATE BOOK lit. 
 
 ment. Befides which all offerings, oblations, and obventions, 
 not exceeding the value of 40 s. may be recovered in a fum- 
 mary way, before two juftices 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 iflue 
 out of the temporal courts to ftop all fuits concerning them. 
 As where a fee was demanded by the minifter of the parifh 
 for the baptifm of a child, which was adminiftered in another 
 place k ; this, however authorized by the canon, is contrary 
 to common right: for of common right no tee is due to the 
 minifter even for performing fuch branches of his duty, and 
 it can only be fupported b a fpecial cuftom ' ; but no cuftom 
 can fupport the demand of a fee without performing them 
 at all. 
 
 FOR fees alfo, fettled and acknowleged 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 at the common law m . It is alfo faid, that if 
 a curate be licenced, and his falary appointed by the bifhop, 
 and he be not paid, the curate has a remedy in the ecclefia- 
 ftical court" : but, if he be not licenced, or hath no fuch 
 ialary appointed, or hath made a fpecial agreement with the 
 reclor, he muft fue for a fatisfaction at common law ; either 
 by proving fuch fpecial agreement, or elfe by leaving it to a 
 jury to give damages upon a quantum meriiit^ that is, in con- 
 lideration of what he reafonably defcrved in proportion to the 
 fervice performed. 
 
 UNDER this head of pecuniary injuries may alfo be reduced 
 the feveral matters of fpoliation, dilapidations, and neglect of 
 repairing the church and things thereunto belonging; for 
 which a fatisfa&ion may be fued for in the ecclefiaftical court. 
 
 SPOLIATION is an injury done by one clerk or incumbent, 
 to another, in taking the fruits of his benefice without any 
 
 Stat. 7 &8 W. III. c. 6. m , Ventr. 165. 
 
 fc Salk. 332. " 1 Burn. eccl. law. 438, 
 
 ' Ibid. 334. Lord Raym. 450. 1558. I Frccm. 70. 
 Fitzg. 55. 
 
 right
 
 Ch. 7. WRONGS. 91 
 
 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 fatronatus or right of advowfon doth not come 
 in debate, is cognizable in the fpiritual court : as if a patron 
 firft prefents 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 induction. Now if A difputes the fa& of the 
 vacancy, 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 fhall there be tried, whether the living were, or were 
 not, vacant ; upon which the validity of the fecond clerk's 
 pretenfions muft depend . But if the right of patronage 
 comes at all into difpute, as if one patron prefented A, and 
 another patron prefented B, there the ecclefiaftical court hath 
 no cognizance, provided the tithes fued for amount to a 
 fourth part of the value of the living, but may be prohibited 
 at the inftance of the patron by the king's writ of indicavit p . 
 So alfo if a clerk, without any colour of title, ejects another 
 from his parfonage, this injury muft be redrefled in the tem- 
 poral courts : for it depends upon no queftion determinable 
 by the fpiritual law, (as plurality of benefices or no plurality^ 
 vacancy or no vacancy) but is merely a civil injury. 
 
 FOR dilapidations ) which are a kind of ecclefiaftical wafte, 
 either voluntary, by pulling down ; and permiflive, by fuffer- 
 ing the chancel, parfonage-houfe, and other buildings there- 
 unto belonging, to decay ; an action 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 againft the 
 predecefibr, if living, or, if dead, then againft his executors. 
 It is alfo faid to be good caufe of deprivation, if the bifhop, 
 parfon, vicar, or other ecclefiaftical perfon, dilapidates the 
 buildings or cuts down timber growing on the patrimony of 
 
 F. N. B. 36. Anic.Ckri. 9 Edw.U.c.2.F.N.B.45. 
 
 P CircutnfpeReaget'ii; J3Edw. I, ft. 4, q Cart. 224. 3 Lev. 264. 
 
 the
 
 $2 PRIVATE BOOK III. 
 
 the church, unlefs for necefiary repairs ' : and that a writ of 
 prohibition will alfo lie againft him in the courts of common 
 Iaw f . By ftatute 13 Eliz. c. 10. if any fpiritual perfon 
 makes over or alienates his goods with intent to defeat his 
 fucceflbrs of their remedy for dilapidations, the fuccefibr fhall 
 have fuch remedy againft the alienee, in the ecclefiaftical 
 codrt, as if he were the executor of his predeceflbr. And 
 by ftatute 14 Eliz. c. n. all money recovered for dilapida~ 
 tions (hall within two years be employed upon the buildings, 
 in refpecl: whereof it was recovered, on penalty of forfeiting 
 double the value to the crown. 
 
 As to the neglet of reparations of the church, church- 
 yard, and the like, the fpiritual court has undoubted cogni- 
 zance thereof 5 j and a fuit may be brought therein for non- 
 payment of a rate made by the church-wardens for that pur- 
 pofe. And thefe are the principal pecuniary injuries, which 
 are cognizable, or for which fuits may be inftituted, in 
 ecclefiaftical courts. 
 
 2. MATRIMONIAL caufes, or injuries refpe&ing the rights 
 of marriage, are another, and a much more undifturbed, 
 branch of the ecclefiaftical jurifdidion. Though, if we con- 
 fider marriages in the right of mere civil contracts, they do 
 not feem to be properly of fpiritual cognizance 1 . But the 
 Romanifts having very early converted this contrail into a 
 holy facramental ordinance, the church of courfe took it un- 
 der her protection, upon the divifion of the two jurifdi&ions. 
 And, in the hands of fuch able politicians, it foon became 
 an engine of great importance to the papal fchemeof an uni- 
 verfal monarchy over Chriftendom. The numberlefs cano- 
 nical impediments 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 fan&ified or repro- 
 bated, their iffue legitimated or baftardized, and the fucceffion 
 to their thrones eftablifhed or rendered precarious, according 
 
 > I Roll. Rep. 86. uRep. 98. Godb.^, s Grcumffc?eaga:is. 5 Rep. 66. 
 3 BuUlr. 158. i Roll. Rep. 335. l Waib. alliance. 173. 
 
 to
 
 Ch. 7; WRONG s. 93 
 
 to the humour or intereft of the reigning pontifF: befides a 
 thoufand nice and difficult fcruples, with which the clergy of 
 thofe ages puzzled the underftandings and loaded the confci- 
 cnces of the inferior orders of the laity ; and which could only 
 be unravelled by thefe their fpiritual guides. Yet, abftracted 
 from this univerfal influence, which affords fo good a reafon 
 for their conduit, one might otherwife be led to wonder, that 
 the fame authority, which enjoined the ftricleft celibacy to 
 the priefthood, fhould think them the proper judges in caufes 
 between man and wife. Thefe caufes indeed, partly from the 
 nature of the injuries complained of, and partly from the cle- 
 rical method of treating them v , foon became too grofs for the 
 modefty of a lay tribunal. And caufes matrimonial are now 
 fo peculiarly ecclefiaflical, that the temporal courts will never 
 interfere in controverfies of this kind, unlefs in fome particu- 
 lar cafes. As if the fpiritual court do proceed to call a mar- 
 riage in queftion after the death of either of the parties j this 
 the courts of common law will prohibit, becaufe it tends to 
 baftardize and difmherit the ifTue ; who cannot fo well defend 
 the marriage, as the parties themfelves, when both of them 
 living, might have done u . 
 
 OF matrimonial caufes, one of the firft and principal is, 
 I. Caufa jaftitationh matrimenii ; 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 ; and, unlefs the defendant undertakes and 
 makes out a proof of the actual marriage, he or fhe is enjoin- 
 ed perpetual filence upon that head ; which is the only re- 
 medy the ecclefiaflical courts can give for this injury. 2. Ano- 
 ther fpecies of matrimonial caufes was when a party contract- 
 ed to another brought a fuit in the ecclefiaftical court 'to 
 compel a celebration of the marriage in purfuance of fuch 
 contract ; but this branch of caufes is now cut off entirely 
 by the aft for preventing clandeftine marriages, 26 Geo. II. 
 
 * Some of the impureft books, that written by the popifh clergy on the fub- 
 4ie SXUnt ia any language, are thofe jefts ot" matrirr.ony and divorce. 
 
 u x kit, 6 1 4, 
 
 c. 33-
 
 94 PRIVATE BOOK III. 
 
 c. 33. which ena&s, that for the future no fuit fhall be had 
 in any ecclefiaftical court, to compel a celebration of mar- 
 riage in facie ecclefiae, for or becaufe of any contrast of ma- 
 trimony whatfoever. 3. The fuit for reftoration of conjugal 
 rights is alfo another fpecies of matrimonial caufes: which is 
 brought whenever either the hufband or wife is guilty of the 
 injury of fubtraction, or lives feparate from the other with- 
 out any fufficient reafon ; in which cafe the ecclefiaftical ju- 
 rifdi&ion will compel them to come together again, if either 
 party be weak enough to defire it, contrary to the inclination 
 of the other. 4. Divorces alfo, of which and their feveral 
 diftin&ions we treated at large in a former volume w , are 
 caufes thoroughly matrimonial, and cognizable by the eccle- 
 fiaftical judge. If it becomes improper, through fome fuper- 
 venient caufe arifing ex po/tfaflo, that the parties mould live 
 together any longer; as through intolerable cruelty, adulte- 
 ry, a perpetual difeafe, and the like; this unfitnels or inha- 
 bility for the marriage ftate may be looked upon as an injury 
 to the fuffering party; and for this the ecclefiaftical law ad- 
 minifters the remedy of feparation, or a divorce a menfa 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 imbecillity, or the like ; in this 
 cafe the law looks upon the marriage to have been always 
 null and void, being contracted infraitdem legis^ and decrees 
 not only a feparation from bed and board, but a vincuh ma- 
 trimonii itfelf. 5. The laft fpecies of matrimonial caufes is a 
 confequence drawn from one of the fpecies of divorce, that a 
 menfa 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 huiband, if he neglecis 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 
 redrefs it by affigning her a competent maintenance, and 
 compelling the hufband by ecclefiaftical cenfures to pay it. 
 But no alimony will be affigned in cafe of a divorce for adul- 
 tery on her part ; for as that amounts to a forfeiture of her 
 
 w Book t. ch. ic. 
 
 dower
 
 Ch. 7. WRONGS. 95 
 
 dower after his death, it is alfo a fufficient reafon why {he 
 fhould not be partaker of his eftate when living. 
 
 3. TESTAMENTARY caufes are the only remaining fpecies, 
 belonging to the ecclefiaftical jurifdi&ion ; which, as they 
 are certainly of a mere temporal nature 31 , 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 *) they were originally cognizable in the 
 king's courts of common law, viz. the county courts z ; and 
 afterwards transferred to the jurifdi&ion of the church by the 
 favour of the crown, as a natural confequence of granting to 
 the bifhops the adminiftration of inteftates' effects. 
 
 THIS fpiritual jurifdi6Uon of teftamentary caufes is a pecu- 
 liar conftitution of this ifland ; for in almoft all other (even 
 in popifh) countries all matters teftamentary are of the jurif- 
 di&ion of the civil magiftrate. And that this privilege is 
 enjoyed by the clergy in England, not as a matter of eccle- 
 fiaftical right, but by the fpecial favour and indulgence of the 
 municipal law, and as it Ihould feem by fome public acl; of 
 the great council, is freely acknowleged by Lindewode, the 
 ableft canonift of the fifteenth century. Teftamentary caufes, 
 he obferves, belong to the ecclefiaftical courts " de confuetudine 
 " Angliae^ et fuper confenfu reglo et fuorum procerum in tali bus 
 " ab aniiquo conceffb a ." The fame was, about a century be- 
 fore, very openly profefled in a canon of arch-bifliop Strat- 
 ford, viz. that the adminiftration of inteftates goods was 
 " ab olim" granted to the ordinary, " confenfu regio et mag- 
 ** natum regni Angliae^ '." The constitutions of cardinal 
 Qthobon alfo teftify, that this provifion " olim a praelatis cum 
 " approbation* regis et baronnm dicitur emanafle c ." And arch- 
 bifhop Parker d , in queen Elizabeth's time, affirms in exprefs 
 words, that originally in matters teftamentary " non ullum 
 
 x Warburt. alliance. 173. b H\d, I. 3. t. 38. /*/. 263. 
 
 X Book II. ch. 32. c ca p t 2 ^. 
 
 z Hickes Di/er. Fptftolar. pag. 8. 58. * See 9 Rep. 38. 
 
 * Provincial. /. 3. t. 13. fol, 176. 
 
 " babebant
 
 96 PRIVATE BOOK IIT. 
 
 * babebant epifcopi attthoritatem, praeter earn quam a rege ac- 
 * l ceptam referebant. Jus tejiamenta probandi non babebant : 
 " adminiftratioms pote/latem cuique delegare non poterant" 
 
 AT what period of time theecclefiaftical jurifdi&ion of tef- 
 taments and inteftacies began in England, is not afcertained 
 by any antient writer; and Lindewode 6 very fairly confefles, 
 *' cujus regis temporibus hoc crdinatum ftt y 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 f . But this muft only be underftood to mean, 
 that it had not always had this prerogative : for certainly it 
 is of very high antiquity. Lindewode, we have feen, declares 
 that it was " ab antiquo ;" Stratford, in the reign of king 
 Edward III, mentions it as " ab olim ordinatum- y " and cardi- 
 nal Othobon, in the 52 Hen. III. fpeaks of it as an antient 
 tradition. Braclon holds it for clear law in the fame reign of 
 Henry III, that matters teftamentary belonged to the fpiri- 
 tual court g . And, yet earlier, the difpofition of inteftates* 
 goods " per vlfum eccleftae" 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, 
 4< quod diftributio rerum quae in left amenta relinquuntur autori- 
 *' tate ecclefiae fict." And even this ordinance, of king 
 Richard, was only an introduction of the fame law into his 
 ducal dominions, which before prevailed in this kingdom : 
 for in the reign of his father Henry II Glanvil is exprefs, 
 that '*_/? quis allquid dixerit contra teftamentum, placitum illud 
 " in curia cbrijlianitatis audiri debet et terminari '." And the 
 Scots book called regiam majeftatem agrees verbatim with 
 Glanvil in this point k . 
 
 IT appears that the foreign clergy were pretty early ambi- 
 tious of this branch of power : but their attempts to aflume 
 
 fol, 263. h cap. 27. edit. Oxoa. 
 
 f Vitz.ALf. tit. teftznwt.pl. 4. 2 Roll. /. 7. c. 8. 
 
 Abr.2i7. 9 Rep. 17. Vaugh. 207, k /, z, c. 38. 
 g /. 5, dc excepritiribus, c, 10, 
 
 it
 
 Ch. 7. /W R o N G s. 97 
 
 it on the continent were effectually curbed by the edict of 
 the emperor Juftin *, which reftrained the infinuation or pro- 
 bate of teftaments (as formerly) to the office of the magijier 
 cenfus : for which the emperor fubjoins this reafon ; " abfur- 
 " dum eter.im clericis cjl, immo etiam ot)probriofum y ft peritos fe 
 " velint ojlendere difceptationum effe forenfium." But after- 
 wards by the canon law m it was allowed, that the bifhop 
 might compel by ecclefiaftical cenfures the performance of a 
 bequeft to pious ttfes. And therefore, as that was confidered 
 as a caufe quae Jecundum canones et epifcopales leges ad regimen 
 ahimarum pertinuit, it fell within the jurifdiction of the fpiri- 
 tual courts by the exprefs words of the charter of king Wil- 
 Jiam I, which feparated thofe courts from the temporal. And 
 afterwards, when king Henry I by his coronation-charter di- 
 rected, that the goods of an inteftate fhould be divided for 
 the good of his foul n , this made all inteftacies immediately 
 fpi ritual caufes, as much' as a legacy to pious ufes had been 
 before. This therefore, we may probably conjecture, 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, invefted the church with this privilege. And ac- 
 cordingly in king Stephen's charter it is provided, that the 
 goods of an inteftate ecclefiaftic {hall be diftributed profalute 
 anlrnae ejus, ecckfae confillo ; which latter words are equiva- 
 lent to per vifum ecclefiae in the great charter of king John 
 before-mentioned. And the Danes and Swedes (who re- 
 ceived the rudiments of chnftianity and ecclefiaftical difci- 
 pline from England about the beginning of the twelfth cen- 
 tury) have thence alfo adopted the fpiritual cognizance of 
 inteftacies, teftaments, and legacies p . 
 
 THIS jurifdiction, we have feen, is principally exercifed 
 with us in the confiftory courts of every diocefan bifhop, and 
 
 1 Ccd. i. 5. 41. rentes et legitimi hcmir.es ejus, earn pro 
 
 m Decretal. 3.26. 17. Gilb. Rep. animzejusdi'uidartyfauteisme'ius'vifuin 
 
 224, 205. fuerit. (Text. Reffens. c. 34. p. $i.J 
 n Si quis baromim feu bomtnum mca- Lord Lyttelt. Hen. II. vol. I. 536* 
 
 rum fecur.iam fuam r.on dedent -vet dare Hcarne ad Gul, Neubr. 711. 
 
 dljpofuerit , uxor fua, Jl-ve liben, eut pa- ? Stieruhook, dtjurtSuun, /. 3. . 8. 
 
 VOL. Ill, G in
 
 5 8 PRIVATE BOOK III. 
 
 in the prerogative court of the metropolitan, originally; and 
 in the arches court and court of delegates by way of appeal. 
 It is divifible into three branches ; the probate of wills, the 
 granting of adminiftrations, and the fuing for legacies. The 
 two former of which, when no oppofition is made, are grant- 
 ed merely ex officio et debito jujlitiae , and are then the objecl: of 
 what is called the voluntary , and not the contentious jurifdic- 
 tion. 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 the adminiftration ; this claim and obftrudtion by 
 the adverfe party are an injury to the party entitled, and as 
 fuch are remedied by the fentence of the fpiritual court, ei- 
 ther by eftablifhing the will or granting the adminiftration. 
 Subtraction, the withholding or detaining, of legacies is alfo 
 ftill more apparently injurious, by depriving the legatees of 
 that right, with which the laws of the land, and the will of 
 the deceafed have inverted them : and therefore, as a confe- 
 quential part of teftamentary jurifdic~Hon, the fpiritual court 
 adminifters redrefs herein, by compelling the executor to pay 
 them. But in this laft cafe the courts of equity exercife a 
 concurrent jurifdi&ion 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 effe&s, 
 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 jurifdiclions, 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, /eek 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 thi& 
 
 day
 
 Ch. ^. WRONGS* g$ 
 
 day to decide many queftions which are properly of 1 temporal 
 cognizance, yet juftice is in general fo ably and impartially 
 adminiftred in thofe tribunals, (efpeciallyof the fuperior kind) 
 and the boundaries of their power are now fo well known and 
 eftablifhed, that no material inconvenience at prefent arifes 
 from this jurifdiction ftill continuing in the antient channel* 
 And, fhould an alteration be attempted, great confufion 
 would probably arife, in overturning long eftabliflied forms^ 
 and new-modelling a courfe of proceedings that has now 
 prevailed for feven centuries. 
 
 THE eftablifhment of the civil law procefs in all the ec- 
 clefiaftical courts was indeed a mafterpiece of papal difcern- 
 ment, as it made a coalition impracticable between them and 
 the national tribunals, without manifeft inconvenience and 
 hazard. And this confideration had undoubtedly it's weight 
 in caufmg this meafure to be adopted, though many other 
 caufes concurred. The time when the pandects of Juftiniart 
 were difcovered afrefh and refcued from the duft of antiquity, 
 the eagernefs with which they were ftudied by the popifh ec-* 
 clefiaftics, and the confequent diflen-fions between the clergy 
 and the laity of England, have formerly q been fpoken to at 
 large. I fhall only now remark upon thofe collections, that 
 their being written in the Latin tongue, and referring fo 
 much Jo 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 monkifh clergy, were deep- 
 rooted principles of papal policy. And, as the bifhops of 
 Rome affected 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 
 
 q Vcl. I. introd. . x. 
 
 G 2 Gothic
 
 ioo PRIVATE Boo Kill. 
 
 Gothic liberty) and which placed an arbitrary power of de- 
 cifion in the breaft of a fingle man. 
 
 THE proceedings in the ecclefiaftical courts are therefore 
 regulated according to the practice of the civil and canon 
 laws; or rather according to a mixture of both, corrected and 
 new-modelled by their own particular 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 ever) 7 ftate to conform T ; (as if they require two 
 witneffes to prove a fact, where one will fuffice at common 
 law) in fuch cafes a prohibition will be awarded againft 
 them s . But, under thele reftrictions, their ordinary courfe 
 of proceeding is j firft, by citation, 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 defen- 
 dant's anfwer upon oath, when, if he denies or extenuates 
 the charge, they proceed to proofs by witneffes 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 muft alfo propound them in what is called his 
 defenfive allegation, to which he is entitled in his turn to the 
 plaintiff's enfwer upon oath, and may from thence proceed 
 to f-roofs as well as his antagonift. The canonical dodlrine 
 of purgation, whereby the parties were obliged to anfwer upon 
 oath to any matter, however criminal, that might be ob- 
 jected againft 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 aliened the doctrines of judicial as well as civil liberty) 
 continued till the middle of the lafl century to be upheld by 
 the fpiritual courts ; when the legislature was obliged to in- 
 terpofe, to teach them a leffon of fimilar moderation. By the 
 
 r Warb. .Jlisuce. 179. * z Roll, Abr, 300, 302. 
 
 ftatute
 
 Ch. 7. WRONGS. 101 
 
 ftatute of 13 Car. II. c. 12. it is ena&ed, that it fliall not 
 be lawful for any bifhop, or ecclefiaftical judge, to tender or 
 adminifter to any perfon whatfoever, the oath ufually called 
 the oath ex officio, 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 
 punimment. Whr-n all the pleadings and proofs are con- 
 cluded, they are referred to the conhderation, 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 the feveral ftages mentioned 
 in a former chapter'; though, if the fame be net appealed 
 from in fifteen days, it is tinal, by the ftatute 25 Hen. VIII. 
 c. 19. 
 
 BUT the point in which thefe jurifdiclions are the moft 
 defective, is that of enforcing their fentences when pro- 
 nounced j for which-they have no other procefs, but that of 
 excommunication: which is defcribed u 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 fpirituai court excommu- 
 nicates a man .for a caufe of which he hath not the legal 
 cognizance, the party may have an action againft him at 
 common law, and he is alfo liable to be indicled at the fuit 
 of the king w . 
 
 
 
 HEAVY as the penalty of excommunication is, confidered 
 in a ferious light, there are, notwirhftanding, many obftinate 
 or profligate men, who would defpife the brutum fulmcn of 
 mere ecclefiaftical 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 
 caufe. The common lav/ therefore compaffionately fteps in to 
 
 ' Chap. ^. w 3. l n ;}. 6ij. 
 
 . Co. Litt. 133. 
 
 G 3 their
 
 102 PRIVATE Boo Kill, 
 
 their aid, and kindly lends a fupporting hand to an otherwife 
 tottering authority. Imitating herein the policy of our Bri- 
 tifh anceftors, among whom, according to Caefar x , who- 
 ever were interdicted by the Druids from their facrifices, 
 * c in numero impiorum ac feeler atorum babentur : al Us omnes 
 <c decedunt) adltum ear urn fermonemque defugiunt, ne quid ex 
 * c contagions incommodi accipiant: neqtte Us petentibus jus reddi- 
 * tar, neque bonus ullus communicator." And fo with us by 
 the common law an excommunicated perfon is difabled to do 
 any a6l, that is required to be done by one that is probus et 
 legalis homo. He cannot ferve upon juries, cannot be a wit- 
 nefs in any court, and, which is the worft of all, cannot 
 bring an a&ion, either real or perfonal, to recover lands or 
 money due to him ^. 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 iffues out a writ to the 
 fheriff of the county, called, from the bifhop's certificate, a 
 Jlgnifieavlt ; or from it's effect a writ de excommunicato capien- 
 do: and the fheriff fhall thereupon take the offender, and 
 imprifon him in the county gaol, till he is reconciled to the 
 church, and fuch reconciliation certified by the bifhop ; upon 
 which another writ, de excommunicato deliberando, iffues out 
 of chancery to deliver and releafe him z . This procefs feems 
 founded on the charter of feparatioh (fo often referred to) of 
 William the conqueror. " Si aliqui s *c r fuperbiam e latus ad 
 ** jujlhiam epifcopalem venire noluerit^ vocetur femtl 9 fecundo, et 
 *' tertio. : quod ft nee fie ad emendationem venerit^ excommunice- 
 *' ttfr ; et) ft opus fuerit^ ad hoc vindicandum fortitudo et jujlitia 
 W regis five vicecomitis adbibeatur" And in cafe of fubtrac- 
 tion of tithes, a more fummary and expeditious afliftance is 
 given by the ftatutes of 27 Hen. VIII. c. 20. and 32 Hen. 
 VIII. c. 7. which enacl, that upon complaint of any con- 
 tempt or mifbehaviour to the ecclefiaftical judge by the de- 
 fendant in any fuit for tithes, any privy counfellor, or any 
 
 x dt lello Gall. /. 6. ' F. N. B. 6z, 
 
 y Liu. . 201. 
 
 two
 
 Ch. 7. WRONGS. 103 
 
 two juftices of the peace (or, in cafe of difobedience to a de- 
 finitive fentence, any two juftices of the peace) may commit 
 the party to prifon without bail or mainprize, till he enters 
 into a recognizance with fufficient fureties to give due obe- 
 dience to the procefs and fentence of the court. Thefe time- 
 ly aids, which the common and ftatute law have lent to the 
 ecclefiaftical jurifdi&ion, may ferve to refute that groundlefs 
 notion which fome are too apt to entertain, that the courts 
 of Weftminfter-hall are at open variance with thofe at doctors' 
 commons. It is true that they are fometimes obliged to ufe 
 a parental authority, in correcting the excefles of thefe infe- 
 rior courts, and keeping them within their legal bounds ; 
 but, on the other hand, they afford them a parental afliftance, 
 in repreffing the infolence of contumacious delinquents, and 
 refcuing their jurifdi&ion from that contempt, which for want 
 of fufficient compulfive powers would otherwife be fure to 
 attend it. 
 
 II. I AM next to confider the injuries cognizable in the 
 court military^ or court of chivalry. The jurifdi&ion of which 
 is declared by ftatute 13 Ric. II. c. 2. to be this : " that it 
 " hath cognizance of contracts touching deeds of arms and 
 *' of war, out of the realm, and alfo of things which touch 
 " war within the realm, which cannot be determined or dif- 
 " cuffed 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 jurifdi&ion : which has thrown it entirely out of ufe as to 
 the matter of contra&s, all fuch being ufually cognizable in 
 the courts of Weftminfter-hall, if not diredtly, at leaft by 
 fiction of law : as if a contract be made at Gibraltar, the 
 plaintiff 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 contract. 
 
 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 aggrieved in matters of ho- 
 nour j and 2. To keep up the diftindtion of degrees and 
 
 G 4 quality.
 
 104 PRIVATE BOOK. III. 
 
 quality. Whence it follows, that the civil jurifdiction of 
 this court of chivalry is principally in two points ; the re- 
 dreffing injuries 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 fatisfaction 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 
 lye; for which, as tney are productive of no immediate da- 
 mage to his perfon or property, no ation 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 3 . But modern refolutions have deter- 
 mined, that how much foever fuch a jurifdiclion may be ex- 
 pedient, yet no action for words will at prefent lie therein b . 
 And it hath always been moft clearly holden c , that as this 
 court cannot meddle with any thing determinable by the 
 common law, it therefore can give no pecuniary fatisfaclion 
 or damages ; inafmuch as the quantity and determination 
 thereof is ever of common law cognizance. And therefore 
 this court of chivalry can at moft order reparation in point of 
 honour ; as, to compel the defendant mendaclum fibi ipfi im- 
 ponere, or to take the lie that he has given upon himfelf, or 
 to make fuch other fubmiffion as the laws of honour may re- 
 quire d . Neither can this court, as to the point of reparation 
 in honour, hold plea of any fuch word, or thing, wherein 
 the party is relievable by the courts of the common law. As 
 if a man gives another a blow, or calls him thief or murderer ; 
 for in both thefe cafes the common law has pointed out his 
 proper remedy by action. 
 
 a Year book, 3 7 Hen. VI 2 r. Stl- P.C. IT. 
 den of" duel?, c. 10. Hal. Hift.C. L. 37. c Hal. Hift. C. L. 37. 
 b SJk. 533. 7 Mod. 115. 2 Ha\\k. d i Roll. Abr. 128. 
 
 As
 
 Ch. 7. WRONGS. 105 
 
 As to the other point of it's civil jurifdi&ion, the redrafting 
 of incroachments and ufurpations in matters of heraldry and 
 coat-armour j it is the bufmefs of this court, accord ing to fir 
 Matthew Hale, to adjuft the right and armorial enfigns, 
 bearings, crefts, fupporters, pennons, &C-, and alfo rights 
 of place or precedence, where the king's patent or a& 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- 
 mary way ; and the trial^iot by a jury of twelve men, but by 
 witnefles, or by combat c . 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 reftrained a 
 jurifdiftlon, it has fallen into contempt and difufe. The 
 marfhalling of coat-armour, which was formerly the pride 
 and ftudy of all the beft families in the kingdom, is now 
 greatly difregarded ; and has fallen into the hands of certain 
 officers and attendants upon this court, called heralds, who 
 confider it only as a matter of lucre and not of juftice : 
 whereby fuch falfity and confufion have crept into their re- 
 cords, (which ought to be the ftanding 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 f . But their original vifitation books, compiled 
 when progrefles were folemnly and regularly made into every 
 part of the kingdom, to enquire into the ftate of families, 
 and to regifter fuch 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 wifhed, that this practice of 
 vifitation at certain periods were revived ; for the failure of 
 inquifitions pojl mortem, by the abolition of military tenures, 
 combined with the negligence of the heralds in omitting their 
 ufual progreffes, has rendered the proof of a modern defcent, 
 
 Co. T.Ut. 16 r. g Comb, 63. 
 
 f 2 Roll. Abr.6S6. a Jon. 224. 
 
 for
 
 ro6 PRIVATE BOOK HI. 
 
 for the recovery of an eftate or fucceffion to a title of honour, 
 more difficult than that of an antient. This will be indeed 
 remedied for the future, with refpect to claims of peerage, by 
 a late {landing order h of the houfe of lords ; directing the 
 heralds to take exact accounts and preferve regular entries of 
 all peers and peerefles of England, and their refpective def- 
 cendants ; and that an exact 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, affecting more private fucceflions, ftill 
 continues without a remedy. 
 
 III. INJURIES cognizable by the courts maritime, or ad- 
 miralty courts, are the next object of our inquiries. Thefe 
 courts have jurifdiction and power to try and determine all 
 maritime caufes; or fuch injuries, which, though they are 
 in their nature of common law cognizance, yet being 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 arifmg wholly upon the fea, and not within the pre- 
 cincts of any county .'. For the ftatute 13 Ric. II. c. 5. di- 
 rects that the admiral and his deputy fhall not meddle with 
 any thing, but only things done upon the fea j and the ftatute 
 15 Ric. II. c. 3. declares that the court of the admiral hath 
 no manner of cognizance of any contract, or of any other 
 thing, done within the body of any county, either by land or 
 by water ; nor of any wreck of the fea : for that muft be caft 
 on land before it becomes a wreck ! . But it is otherwife of 
 thingsy?0//fl/7z, jetfcm, and Kgan ; for over them the admiral 
 hath jurifdiction, as they are in and upon the fea k . If part 
 of any contract, or other caufe of action, doth arife upon 
 the fea, and part upon the land, the common law excludes 
 the admiralty court from it's jurifdiction ; for, part belonging 
 properly to one cognizance and part to another, the common 
 or general law takes place of the particular '. Therefore 
 
 h u May, 1767. k 5 Rep. 106. 
 
 j Co. Litt. 260. Hob. 79. 1 Co. Litt. a6i. 
 
 * See book I. ch. 8* 
 
 though
 
 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 object of the admiralty jurifdiction, even though the 
 contract for them be made upon land m ; yet, in general, if 
 there be a contract made in England and to be executed upon 
 the feas, as a charterparty or covenant that a fhip {hall fail 
 to Jamaica, or fhall be in fuch a latitude by fuch a day ; or 
 a contract made upon the fea to be performed in England, as 
 a bond made on fliipboard to pay money in London or the 
 like; thefe kinds of mixed contracts belong not to the admi- 
 ralty jurifdiction, but to the courts of common law n . And 
 indeed it hath been farther holden, that the admiralty court 
 cannot hold plea of any contract under feal . 
 
 AND alfo, as the courts of common law have obtained a 
 concurrent jurifdiction with the court of chivalry with regard 
 to foreign contracts, by fuppofing them made in England ; 
 fo it is no uncommon thing for a plaintiff to feign that a 
 contract, really made at fea, was made at the royal exchange, 
 or other inland place, in order to draw the cognisance of the 
 fuit from the courts of admiralty to thofe of Weftminfter- 
 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 fhip in which fuch caufe 
 of action arifes to be really at the royal exchange in Cornhill. 
 But our lawyers juftify this fiction, by alleging as before, 
 that the locality of fuch contracts is not at all effential to the 
 merits of them, and that learned civilian himfelf fcems 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 r ; and 
 that, by the fiction of poftliminium and the lex Cornelia, cap- 
 tives, when freed from bondage, were held to have never 
 been prifoners s , and fuch as died in captivity were fuppofed 
 to have died in their own country c . 
 
 m i Ventr. 146. q View of the civil law, b. 3. p. i.. 3. 
 
 n Hob. 12. Hal.Hift. C. L. 35, * Injl. I. fit. 25. 
 
 Hob. 212. s Ff. 49. 15. 12. . 6. 
 
 p 4 Iiift. 134. t p 49 . i -. Z 2. 
 
 WHERE
 
 PRIVATE BOOK III. 
 
 WHERE the admiral's court hath not original jurifdi&ion 
 of the caufe, though there (hould arife in it a queftion that 
 is proper for the cognizance of that court, yet that doth not 
 alter nor take away the exclufive jurifdidtion of the common 
 law v . And fo, vice verfa, if it hath jurifdition of the ori- 
 ginal, it hath alfo jurifdi&ion of all confequential queftions, 
 though properly determinable at common law u . Wherefore, 
 among other reafons, a fuit for beaconage of a beacon ftand- 
 ing on a rock in the fea may be brought in the court of ad- 
 miralty, the admiral having an original jurifdiction over 
 beacons w . 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 occafion requires ; fuch as the Rhodian law, 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 fnftance, 
 with other marine laws : the whole being corrected, altered, 
 and amended by a&s of parliament and common ufage ; fo 
 that out of this compofition a body of jurifprudence is ex- 
 tradted, 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 perlbn z ; 
 and they alfo take recognizances or ftipulation of certain 
 fidejuflbrs in the nature of bail % and in cafe of default may 
 
 v Comb. 462. . / Hale, Hid. C. L. 36. Co. Litt. 1 1. 
 
 " 13 Rep. 53. 2 Lev. 25. Hardr. 183. 7 - C!e-.ke/>rjx. cur. pdm, \. 13. 
 
 w i Sid. 158. a Ibid. , II. I Roll. Abr. 531. 
 
 x 2 Show. 232. Comb. 474. Raym. 78. Lord Raym. 1286. 
 
 imprifon
 
 Ch. 7. WRONGS. 109 
 
 imprifon both them and their principal b . They may alfo 
 fine and imprifon for a contempt in the face of the court c . 
 And all this is fupported by immemorial ufage, grounded on 
 the neceffity of fupporting ajurifdi&ion fo extenfive d ; though 
 oppofite to the ufual doctrines of the common law : thefe 
 being no courts of record, becaufe in general their procefs is 
 much conformed to that of the civil law e . 
 
 IV. I AM next to confider fuch injuries as are cognizable 
 by the courts of the common law. And herein I {hall for 
 the prefent only remark, that all poflible injuries whatsoever, 
 that did not fall within the cognizance of either the ecclefiaf- 
 tical, military, or maritime tribunals, are for that very rea- 
 fon within the cognizance of the common law courts of juf- 
 tice. 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 thcfe 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, 
 either when juftice is delayed by an inferior court that has 
 proper cognizance of the caufe ; or, when fuch inferior court 
 takes upon itfelf to examine a caufe and decide the merits 
 without a legal authority. 
 
 I. THE firft of thefe injuries, refufal or neglecl: of juftice, 
 is remedied either by writ of procedendo, or of mandamus \ A 
 writ of procedendo ad judtcium, ifTues out of the court of 
 chancery, where judges of any court do delay the parties; 
 for that they will not give judgment, either on the one 
 fide or on the other, when they ought fo to do. In this cafe 
 a writ of procedendo fhall be awarded, commanding them in 
 the king's name to proceed to judgment ; but without fpeci- 
 fying any particular judgment, for that (if erroneous) may 
 
 b i Roll. Abr. 531. Godb. 193. a6o, <* i Keb. 552. 
 
 e I Ventr, i, e Bro, /fir. c, error, 177. 
 
 be
 
 no PRIVATE BOOK III. 
 
 be fet afide in the courfe of appeal, or by writ of error or* 
 falfe judgment : and, upon farther negle& or refufal, the 
 judges of the inferior court may be puniflied for their con- 
 tempt, by writ of attachment returnable in the king's bench 
 or common pleas f . 
 
 A WRIT of mandamus is, in general, a command ifTuing 
 in the king's name from the court of king's bench, and di- 
 rected 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 and 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 
 moft extenfively remedial nature : and may be iflued 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 iflues 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 ; to the ufe of a 
 meeting-houfe j &c : it lies for the production, infpeflion, 
 or delivery, of public books and papers ; for the furrender of 
 the regalia of a corporation ; to oblige bodies corporate to 
 affix their common feal ; to compel the holding of a court j 
 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 bufmefs of the court of king's bench, to fu- 
 perintend all other inferior tribunals, and therein to inforce 
 the due exercife of thofe judicial or minifterial powers, with 
 which the crown or legiflature have inverted them : and this, 
 not only by retraining their excefles, but alfo by quickening 
 
 f F.N.B. 153, 154. 249. 
 
 their
 
 Ch. 7. WRONGS. in 
 
 their negligence, and obviating their denial of juftice. A 
 mandamus may therefore be had to the courts of the city of 
 London, to enter up judgment 2 ; 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 ftiew 
 caufe why a writ of mandamus mould not iflue : and, if he 
 fliews no fufficient caufe, the writ itfelf is ifTued, at firft in 
 the alternative, either to do thus, or fignify fome reafon to 
 the contrary ; to which a return or anfwer, muft be made at 
 a certain day. And, if the inferior judge, or other perfon to 
 whom the writ is directed, returns or fignifies an inefficient 
 reafon, then there iflues in the fecond place a peremptory man- 
 damus, to do the thing abfolutely ; to which no other return 
 will be admitted, but a certificate of perfect obedience and 
 due execution of the writ. If the inferior judge or other 
 perfon makes no return, or fails in his refpect and obedience, 
 he is punifhable for his contempt by attachment. But, if 
 he, at the firft, returns a fufficient caufe, although it mould 
 be falfe in fact, the court of king's bench will not try the 
 truth of the fact? 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 action againft him for his falfe 
 return, and (if found to be falfe by the jury) {hall recover 
 damages equivalent to the injury fuftaincd ; together with a 
 peremptory mandamus to the defendant to do his duty. Thus- 
 much for the injury of neglect or refufal of juftice. 
 
 2. THE other injury, which is that of encroachment of 
 jurifdiction, or calling one coram non judice, to anfwer in a 
 court that has no legal cognizance of the caufe, is alfo a 
 grievance, for which the common law has provided a remedy 
 by the writ of prohibition. 
 
 g Raym. 214. 
 
 A PRO-
 
 n2 PRIVATE BOOK III. 
 
 A PROHIBITION is a writ 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 h , common pleas *, 
 or exchequer k ; 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, does not 
 belong to that jurifdiction, 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 refpective franchifes 1 ; to the 
 county-courts or courts-baron, where they attempt to hold 
 plea of any matter of the value of forty millings m : or it may 
 be directed to the courts chriftian, the univerfity courts, the 
 court of chivalry, or the court of admiralty, where they con- 
 cern themfelves with any matter not within their jurifdiction; 
 as if the firft mould attempt to try the validity of a cuftom 
 pleaded, or the latter a contract 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 
 witnefles to prove the payment of a legacy, a releafe of 
 tithes n , or the like ; in fuch cafes alfo a prohibition will be 
 awarded. For, as the fact of figning a releafe, or of actual 
 payment, is not properly a fpiritual queftion, but only al- 
 lowed to be decided in thofe courts, becaufe incident or ac- 
 ceflbry to fome original queftion clearly within their jurifdic- 
 tion ; it ought therefore, where the two laws differ, to be 
 decided not according to the fpiritual, but the temporal law; 
 elfe 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, 
 
 n j P.WTU. 476. ! Lord Raym. 1408. 
 
 Hob. 15. m Finch. 1.451. 
 
 fc Paln:cr, 523. Cro. Eliz. 666. Hob. 188. 
 
 and
 
 Ch. 7.' WRONGS. 113 
 
 and which is therefore a ground of prohibition. And if ei- 
 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 a&ion will lie againft them, to jepair the party in- 
 jured in damages. 
 
 So long as the idea continued among the clergy, that the 
 ecclefiaftical ftate was wholly independent of the civil, great 
 ftruggles were conftantly maintained between the temporal 
 courts and the fpiritual, concerning the writ of prohibition 
 and the proper objects of it ; even from the time of the con- 
 ftitutions of Clarendon made in oppofition to the claims of 
 arch-bifhop Becket in 10 Hen. II, to the exhibition of cer- 
 tain articles of complaint to the king by arch-bifliop Bancroft 
 in 3 Jac. 1. on behalf of the ecclefiaftical courts : from 
 which, and from the anfvvers to them figned by all the judges 
 of Weftmi nfter- hali p , much may be collected 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, letting forth in a fuggeftion upon record the nature 
 and caufc of' his complaint, in being drawn ad allud examen, 
 by a jurifdidtion or manner of procefs difallowed by the laws 
 of the kingdom : upon which, if the matter alleged appears 
 to the court to be fufficient, the writ of prohibition immedi- 
 ately iflues ; commanding the judge not to hold, and the 
 party not to profecute, the plea. But fometimes the point 
 may be too nice and doubtful to be decided merely upon a 
 motion : and then, for the more folemn determination of the 
 queftion, the party applying for the prohibition is directed by 
 the court to declare in prohibition ; that is, to profecute an 
 action, by riling a declaration, againft the other, upon a fup- 
 pofition, or fiction, that he has proceeded in the fuit below, 
 notwithstanding the writ of prohibition. And if, upon de- 
 murrer and argument, the court fhall finally be of opinion, 
 that the matter fuggefted is a good and fufficient ground of 
 
 c F. N. B. 40. P 2 Inft. 601618. 
 
 Vo L. Ill, H prohibition
 
 ii4 PRIVATE BootcIII. 
 
 prohibition in point of law, then judgment with nominal da- 
 mages fhall be given for the party complaining, and the de- 
 fendant, and alfo the inferior court, (hall be prohibited from 
 proceeding any farther. On the other hand, if the fuperior 
 court fhall think it no competent ground for reftraining the 
 inferior jurifdidtion, then judgment fhall be given againft 
 him who applied for the prohibition in the court above, and a 
 writ of confutation fhall be awarded ; fo called, becaufe upon 
 deliberation and confukation had, the judges find the prohi- 
 bition to be ill founded, and therefore by this writ they return 
 the caufe to it's original jurifdiction, to be there determined, 
 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 law, for 
 granting the prohibition, yet, if t\\efaft that gave rife to it 
 be afterwards falfified, the caufe fhall be remanded to the 
 prior jurifdi6tion. If, for inftance, a cuftom be plead- 
 ed in the fpiritual court; a prohibition ought to go, be- 
 caufe that court has no authority to try it : but, if the 
 fair, of fuch a cuftom be brought to a competent trial, and 
 be there found falfe, a writ of confutation 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 iffue 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 
 G{ Consultation may alfo be, and is frequently, granted by the 
 court without any adtion brought ; when, after a prohibition 
 jflued, 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 below. Thus careful has the 
 law been, in compelling the inferior courts to do ample and 
 fpeedyjuftice; 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 act of parliament, do properly belong to their 
 j urifdidion.
 
 Ch. 8. WRONGS. 115 
 
 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 
 of redreffing private wrongs, either by the mere act of the 
 parties, or the mere operation of law ; and in treating of the 
 nature and feveral fpecies of courts ; together with 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 refpe&ive 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 
 fhall, firft, define the feveral injuries cognizable by the courts 
 of common law, with the refpec"tive remedies applicable to 
 each particular injury : and mall, fecondly, defcribe the 
 method 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 refpeclive remedies applica- 
 ble to each particular injury. And, in treating of thefe, I 
 fhall at prefent confine myfelf to fuch wrongs as may be com- 
 mitted in the mutual intercourfe between fubjecl: and fub- 
 jel ; which the king as the fountain of juftice is officially 
 bound to redrefs in the ordinary forms of law : referving fuch 
 
 H 2 injuries
 
 n6 PRIVATE BOOK III. 
 
 injuries or encroachments as may occur between the crown 
 and the fubject, to be diftinctly confidered hereafter, as 
 the remedy in fuch cafes is generally of a peculiar and ec- 
 centrical nature. 
 
 Now, as all wrong may be confidered as merely a priva- 
 tion of right, the one natural remedy for every fpecies of 
 wrong is the being put in pofleflion of that right, whereof 
 the party injured is deprived. This may either be effected by 
 a fpecific delivery or reftoration of the fubject-matter in dif- 
 pute to the legal owner ; as when lands or perfonal chattels 
 are unjuftly withheld or invaded : or, where that is not a 
 poffible, or at leaft not an adequate remedy, by making the 
 fufferer a pecuniary fatisfaction in damages ; as in cafe of af- 
 fault, breach of contract, &c: to which damages the party 
 injured has acquired an incomplete or inchoate right, the in- 
 ftant he receives the injury a j though fuch right be not fully 
 afcertained till they are afleffed by the intervention of the law. 
 The inftruments whereby this remedy is obtained (which are 
 fometimes confidered in the light of the remedy itfelf ) are a 
 diverfity of fuits and actions, which are defined by the mir- 
 rour b to be " the lawful demand of one's right :" or as Brae- 
 ton and Fleta exprefs it, in the words of Juftinian % jus pro- 
 fequendi Injudicio quod alicui debetur. 
 
 THE Romans introduced, pretty early, fet forms for actions 
 and fuits in their law, after the example of the Greeks ; and 
 made it a rule, that each injury fhould be redrefled by it's pro- 
 per remedy only. " Aftiwes, fay the pandects, compojitae 
 * c funt quibus inter fe homines difceptarent^ quas afliones ne po- 
 " pulus prout vellet injlitueret^ certas folennefque effe voluerunt * ." 
 The forms of thefe actions were originally preferved in the 
 books of the pontifical college, as choice and ineftimable fe- 
 crets, till one Cneius Flavius, the fecretary of Appius Clau- 
 dius ftole a copy and published them to the people e . The 
 
 a See book II. ch. 29. l Ff. i. z. *. . 6. 
 
 b c. z. . i. c Cic. fro Aiuraena. . 1 1. de oral. 
 
 In/}. 4. 6,f>r. 1. 1. 1. 41. 
 
 concealment
 
 Ch. 8. WRONGS. 117 
 
 oncealment was ridiculous : but the eftablifhment of fome 
 ftandard was undoubtedly neceftary to fix the true ftate of a 
 queftion of right ; left in a long and arbitrary procefs it 
 might be ftiifted continually, and be at length no longer dif- 
 cernible. Or, as Cicero exprefies it f , " funt jura, funtfor- 
 ** mulae, de omnibus rebus conjlitutae, ne quis ant in genere in- 
 " juriae, aut in ratione aftionis, errare pojjit. Exprejjae enim 
 tf funt ex uniufcujufque damno, dolor v, incommode, calami tate, 
 " injuria^ publicae a praetore formulae , ad quas privata Us ac- 
 " ctmmodatur" And in the fame manner our Bracton, 
 fpeaking of the original writs upon which all our actions are 
 founded, declares them to be fixed and immutable, unlefs by 
 authority of parliament ? . And all the modern legifktors of 
 Europe have found it expedient, from the fame reafons, to fall 
 into the fame or a fimiiar method. With us in England the 
 
 O 
 
 feveral fuits, or remedial inftruments of juftice, are from the 
 fubject of them diftinguifhed into three kinds j actions per- 
 ly real, and mixed. 
 
 PE R s o N AL actions are fuch whereby a man claims a debt, 
 or perfonal duty, or damages in lieu thereof; and, likewife, 
 whereby a man claims a fatisfaction in damages for fome injury 
 done to his perfon or property. The former are faid to be 
 founded on contracts, the latter upon torts or wrongs : and 
 they are the fame which the civil law calls " acJiones in per- 
 tc fonam, quae adverfus eum intenduntur^ qui ex contracJu vel 
 " delitlo obligates eft aliquid dare vel concedere V Of the for- 
 mer nature are all actions upon debt orpromifes ; of the lat- 
 ter all actions for trefpafles, nufances, aflaults, defamatory 
 words, and the like. 
 
 REAL actions, (or, as they are called in the mirror ' (feudal 
 actions) which concern real property only, are fuch whereby 
 the plaintiff", here called the demandant, claims title to have 
 any lands or tenements, rents, commons, or other heredita- 
 
 * Pro <%u. Rofcio . 8. confcnfu et vduntatc ecrum. (1. 5. de ex- 
 
 g Sunt quaedam brevia formata ftifer ceptknibus c. 17. . i.) 
 
 ceri'n cajlbus de curfx, ct de 'cn-mnnl ccnji' h J, : jt t ^.6. 15. 
 
 lia totius rcgni approiuta er conc'JJ'a, quae l c. 2. . 6. 
 
 Bullion nuliatcnus mutan f.^te-int iibjque 
 
 H 3 ments,
 
 nS PRIVATE BOOK III. 
 
 ments, in fee-fimple, fee-tail, or for term of life. By thefe 
 actions formerly all difputes concerning real eftates were 
 decided ; but they are now pretty generally laid afide in 
 practice, 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 actions perfonal and mixed. 
 
 MIXED actions are fuits partaking of the nature of the 
 other two, wherein fome real property is demanded, and 
 alfo perfonal damages for a wrong fuftained. As for in- 
 ftance, an action 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 action ; but alfo treble damages, in purfu- 
 ance of the ftatute of Glocefter k , which is a perfonal re- 
 compence ; and fo both, being joined together, denominate 
 it a >/;vWaction. 
 
 UNDER thefe three heads may every fpecies of remedy by 
 fuit or action in the courts of common law be comprized. 
 But in order effectually 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 refpective reme- 
 dies, which are furniflied by the law for every infraction of 
 right. But I muft firft beg leave to premife, that all civil 
 injuries are of two kinds, the one without force or violence, as 
 flander or breach of contract ; the other coupled with 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 ; for which 
 in ftrictnefs of law a fine ought to be paid to the king, as 
 
 fc 6 fdw. I. c. 5. J Finch. L, 184, 
 
 well
 
 Ch. 8. WRONGS. 119 
 
 well as private fatisfa&ion to the party injured m . And this 
 diftin&ion of private wrongs, into injuries with and with- 
 out force, we fhall find to run through all the variety of 
 which we are now to treat. In confidering of which, I 
 fhall follow the fame method, that was purfued with re- 
 gard to the diftribution of rights : for as thefe are no- 
 thing elfe but an infringement or breach of thofe rights, 
 which we have before laid down and explained, it will follow 
 that this negative fyftem, of wrongs, muft correfpond and 
 tally with the former pofitive fyftem, o'f rights. As therefore 
 we divided n all rights into t' ofe of ferfons, and thofe of 
 things, fo we muft make the fame general diftribution of inju- 
 ries into fuch as affe& the rights of perfons, and fuch as sr^eft 
 the rights of property. 
 
 TH E rights of perfons, we may remember, were diftribut- 
 ed into abfolute and relative : abfolute, which were fuch as 
 appertained and belonged to private men, confidered merely 
 as individuals, or fmgle perfons ; and relative, which were 
 incident to them as members of fociety, and connected to 
 each other by various ties and relations. And the abfolute 
 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 affect the perfonal fecurity of indi- 
 viduals, they are either injuries againft their lives, their limbs, 
 their bodies, their health, or their reputations. 
 
 i. WITH regard to the firft fubdivifion, or injuries affect- 
 ing the life of man, they do not fall under our prefent con- 
 templation ; being one of the moft atrocious fpecies of crimes, 
 the fubject of the next book of our commentaries. 
 
 P> Finch. L. 198. Jenk. Cent. 185. See book I. ch. r. 
 
 H 4 2, 3. THE
 
 120 PRIVATE BOOK III. 
 
 2, 3. THE two next fpecies of injuries, affecting the limbs 
 or bodies of individuals, I fhall confider in one and the fame 
 view. And thefe may be committed, i. By threats and me- 
 naces of bodily hurt, through fear of which a man's bufmefs 
 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 action of 
 trefpafs vi et armis p , this being an inchoate, though not an 
 abfolute, violence. 2. By a/fault ; which is an attempt or 
 offer to beat another, without touching him: as if one lifts 
 up his cane, or his fiir, in a threatening manner at another ; 
 or ftrikes at him, but miffes him ; this is an aff:ult, infultus, 
 which Finch ^ 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 actual fuffering is proved, yet the party injured may have 
 redrefs by action of trejpafs vi et armis ; wherein he fnall re- 
 cover damages as a compenfation for the injury. 3. By bat- 
 tery ; which is the unlawful beating of another. The leaft 
 touching of another's perfon wilfully, or in anger, is a bat- 
 tery ; for the law cannot draw the line between different de- 
 grees of violence, and therefore totally prohibits the firft and 
 loweft ftage 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 injuriis prohibited pulfation as well as verberation^ 
 diftinguifhingverberation, which was accompanied with pain, 
 from pulfation which was attended with none r . But battery 
 is, in fome cafes, juftifiable or lawful ; as where one who 
 hath authority, a parent or mafter, gives moderate correction 
 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 
 affaults me, I may ftrike in my own defence ; and, if fued for 
 it, may plead fon ajjault demejne y or that it was the plaintiff's 
 
 Finch. L. 202. 1 Finch. L. zoz. 
 
 P Regiur. 104. 27^7". IT. 7 Efa. r Ff. 47. 10. 5. 
 IV. 14. 
 
 own
 
 Ch. 8. WRONGS. 121 
 
 own original aflault that occasioned it. So likewife in de- 
 fence of my goods or pofieffion, 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 away f . Thus too in the exercife of an 
 office, as that of church warden or beadle, a man may lay 
 hands upon another to turn him out of church, and prevent 
 his difturbing the congregation s . And, if fued for this or 
 the like battery, he may let forth the whole cafe, and plead 
 that he laid hands upon him gently, molliter mantts imfofuit^ 
 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 action of trepafs vi et 
 armis : wherein the jury will give adequate damages. 4. By 
 wounding ; which confifts in giving another fome dangerous 
 hurt, and is only an aggravated fpecies of battery. 5. By 
 mayhem ; 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 fu- 
 ture 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 u . 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 action of trefpafs 
 i)l et armis lies alfo to recover damages for this injury, an in- 
 jury, which (when wilful) no motive can juftify, but necef- 
 fary felf-prefervation. 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 muft obferve that for 
 thefe four laft injuries, afiault, battery, wounding, and 
 mayhem, an indictment may be brought as well as an action; 
 and frequently both are accordingly profecuted ; the one at 
 the fuit of the crown for the crime againft the public ; the 
 
 f J Finch, L. 203. * Finch. L. 204. 
 
 s j Sid. 301. u ! Hi\vk. P. C. in. 
 
 other
 
 122 PRIVATE BOOK III. 
 
 other at the fuit of the party injured, to make him a repara- 
 tion in damages. 
 
 4. I N* j u R i E s, affecting a man's health, are where by any 
 unwholefome practices of another a man fuftains any ap- 
 parent damage in his vigour or conftitution. As by felling 
 him bad provifions or wine w j by the exercife of a noifome 
 trade, which infects the air in his neighbourhood x ; or by 
 the neglect or u.nfkilful management of his phyfician, fur- 
 geon, or apothecary. For it hath been folemnly refolved x, 
 that mala praxis is a great mifdemefnor and offence at com- 
 mon lav/, whether it be for curiofity and experiment, or by 
 neglect j becaufe it breaks the truft which the party had 
 placed in his phyfician, and tends to the patient's deftruc- 
 tion. Thus alfo, in the civil law z , neglect or want of fkill 
 in phyficians and furgeons " culpae adnumerantur ; veluti fi 
 " medicus curationem deretiquerit, male quempiam fecuerit, aut 
 " perperam ei medicamentum dederit" Thefe are wrongs or 
 injuries unaccompanied by force, for which there is a re- 
 medy in damages by a ipecial action of trefpafs, upon the 
 cafe. This action, of trefpafs, or tranfgreflion, on the cafe y 
 is an univerfal remedy, given for all perfonal wrongs and 
 injuries without force ; fo called becaufe the plaintiff's 
 whole cafe or caufe of complaint is fet forth at length, in 
 the original writ a . For though in general there are me- 
 thods prefcribed and forms of actions previoufly fettled, for 
 redrefling thofe wrongs which moft ufually occur, and ia 
 which the very act 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 j yet where 
 
 w I Roll. Abr. go. " tenter curandum apud S . pro quadam pc- 
 
 * o Rep. 52. Hutt. 135. " cMae futnrr.a prae manibui foluta af- 
 
 y Lord Raym. 214. fumfjiffet, Idem B curamfuam circa ocu- 
 
 z Inft. 4. 3. 6. &f 7. < hmpraeJifhm tarn ntgligenterctimpro- 
 
 '* For example : " Rex vicectmiil fa- " -vide appofuit, qiudidem A deftclu ip- 
 
 ' lutcm. Si A fecerit tefecurum de c/a- ' fius. B infum ocult jr.-ieJifli toialiter 
 
 ' more juo prcjtquendo, tune f cue per -ja- ' anvjit, ad damnum ipjlui A >v:gir.l\ 11- 
 
 ' dium et jal-vos plegics B. quod fit ccrsm ' braruir., ut dic'it. Et habeas ibl nomitia 
 
 ' jujilriariis tiojlris apud Weftmonaftirlxm ( plegiontrtt et hoc breve. I'eftt nt'ipff 
 
 'in oflabis fanfli Micbadis, cftenfurus < a p u d Ifefimonajlcrium &t ." (Rfg'Jir. 
 
 fc quart cum idem B ad dexttum oculum Jjre-v. 105.) 
 
 " ipjiui A cafualiter laefum bent et csmpe- 
 
 any
 
 Ch. 8. WRONGS. 123 
 
 any fpecial confequential damage arifes which could not be 
 forefeen and provided for in the ordinary courfe of juftice, the 
 party injured is allowed, both by common law and the ftatute 
 of Weftm. 2- c. 24. to bring a fpecial action on his own cafe, 
 by a writ formed according to the peculiar circumftances of 
 his own particular grievance b . For wherever the common 
 Jaw gives a right or prohibits an injury, it alfo gives a remedy 
 by action c ; and therefore, wherever a new injury is done, a 
 new method of remedy muft be purfued d . And it is a fettled 
 diftinction e , that where an aft is done which is in itfelf an im- 
 mediate injury to another's perfon or property, there the re- 
 medy is ufually by an action of trefpafs vi et armis : but where 
 there is no act done, but only a culpable omiflion ; or where 
 the act is not immediately injurious, but only by consequence 
 and collaterally ; there no action of trefpafs vi et armis will 
 lie, but an action on the fpecial cafe, for the damages confe- 
 quent on fuch omiflion or act. 
 
 5. LASTLY ; injuries affecting a man's reputation or good 
 name are, firft, by malicious, fcandalous, and flanderous 
 words) tending to his damage and derogation. As if a man, 
 malicioufly and falfely, utter any {lander or falfe tale of ano- 
 ther ; 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 f j or which may exclude him 
 from fociety, as to charge him with having an infectious dif- 
 eafe ; or which may impair or hurt his trade or livelyhood, as 
 to call a tradefman a bankrupt, a phyfician a quack, or a law- 
 yer a knave *. Words fpoken in derogation of a peer, a judge, 
 or other great officer of the realm, which are calledyiwzrt'fl/Wz 
 jnagnatum, are held to be ftill more heinous* 1 ; and, though 
 they be fuch as would not be actionable in the cafe of a com- 
 mon perfon, yet when fpoken in difgrace of fuch high and 
 refpectable characters, they amount to an atrocious injury : 
 
 * See pag. 51. Stra. 635. 
 
 c i Salk. 20. 6 Mod 54. f Finch. L. 185. 
 
 d Cro. Jac. 478. g Ibid. 186. 
 
 9 ii Mod, 180. LordRaym, 14021 b j Vemr. 60, 
 
 which
 
 124 PRIVATE BOOK III. 
 
 which is redrafted by an action on the cafe founded on many 
 antient ftatutes 1 ; as well on behalf of the crown, to inflict: 
 the punifhment of imprifonment on the flanderer, as on be- 
 half of the party, to recover damages for the injury fuftained. 
 Words alfo tending to fcandalize a magiftrate, or perfon in a 
 public truft, are reputed more highly injurious than when 
 fpoken of a private man k . 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 object of it '. But, 
 too great encouragement being given by this 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 in law, may exclude him from fociety, may 
 impair his trade, or may affect a peer of the realm, a magif- 
 trate or one in public truft, an action 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, it is neceffary that the plaintiff mould aver fome 
 particular damage to have happened ; which is called laying 
 his action with a per quod. As if I fay that fuch a clergyman 
 is a baftard, he cannot for this bring any action againft me, 
 unlefs he can mew fome fpecial lofs by it j in which cafe he 
 may bring his aclion againft me, for faying he was a baftard, 
 per quod he loft the prefentation to fuch a living m . In 
 like manner to flander another man's title, by fpreading fuch 
 injurious reports, as, if true, would deprive him of his eftate 
 (as to call the iffue in tail, or one who hath land by defcent, 
 a baftard) is actionable, provided any fpecial damage accrues 
 to the proprietor thereby ; as if he lofes an opportunity of 
 felling the land n . But mere fcurrility, or opprobrious words, 
 which neither in themfelves import, nor are in fact attended 
 with, any injurious effects, will not fupport an action. So 
 fcandals, which concern matters merely fpiritual, as to call a 
 
 ' Weftm. i. 3 Edw. I. c. 34. a Ric. 1 2 Vent. 28. 
 II. c. 5. 12 Ric. II. c. ii. m 4 Rep. 17. I Lev. 248. 
 
 * Lord Raym. 1369. n Cro. Jac. 213. Cro. Eliz. 197. 
 
 man
 
 Ch. 8, 1 WRONG s. 125 
 
 man heretic or adulterer, are cognizable only in the ecclefi- 
 aftical court ; unlefs any temporal damage enfues, which 
 may be a foundation for a per quod. Words of heat and paf- 
 fion, as to call a man rogue and rafcal, if productive of no 
 ill confequence, and not of any of the dangerous fpecies be- 
 fore-mentioned, are not actionable: neither are words fpoken 
 in a friendly manner, as by way of advice, admonition, or 
 concern, without any tincture or circumftance of ill will : 
 for, in both thefe cafes, they are not mallcioujly fpoken, which 
 is part of the definition of flander P. Neither (as was former- 
 ly hinted 1) are any reflecting words made ule of in legal pro- 
 ceedings, and pertinent to the caufe in hand, a fufficient 
 caufe of action for flander r . Alfo if the defendant be able 
 to juftify, and prove the words to be true, no action will Iie% 
 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 refpective actions : for 
 though there may be damage fufficient accruing from it, yet, 
 if the fact be true, it is damnum cbfque Injuria j and where 
 there is no injury, the law gives no remedy. And this is 
 agreeable to the reafoning of the civil law 1 : <{ eum qui no- 
 " centem infamat^ non eft aequum et bonum ob earn rem condem- 
 * c nari ; delitta en'nn nocentium nota ejje oportet et expedit." 
 
 A SECOND way of affecting a man's reputation is by 
 printed or written libels, pictures, figns, and the like ; which 
 fet him in an odious or ridiculous u light, and thereby dimi- 
 nifh his reputation. With regard to libels in general, there 
 are, as in many other cafes, two remedies ; one by indict- 
 ment and another by action. The former for the public of- 
 fence ; for every libel has a tendency to break the peace, or 
 provoke others to break it: which offence is the fame whether 
 
 Noy. 64, iFreem. 277, r Dyer. 285. Cro. Jac. 90. 
 
 P Finch. L. 186. i Lev. 82. Cro. s 4 Rep. 13. 
 
 Jac. 91. t F/. 47. jo. 18. 
 
 9 pag. 29. 2 Show 314. ii Mod. 99. 
 
 the
 
 126 PRIVATE BOOK III. 
 
 the matter contained be true or falfe ; and therefore the de- 
 fendant, on an indictment for publifhing a libel, is not al- 
 lowed to allege the truth of it by way of juftification w . But 
 in the remedy by action on the cafe, which is to repair the 
 party in damages for the injury done him, the defendant may, 
 as for words fpoken^ juftify the truth of the facts, and fhew 
 that the plaintiff has received no injury at all *. What was 
 faid with regard to words fpoken, will alfo hold in every par- 
 ticular with regard to libels by writing or printing, and the 
 civil actions confequent thereupon : but as to figns or 
 pictures, it feems necefTary always to fhew, by proper in- 
 nuendo's and averments of the defendant's meaning, the im- 
 port and application of the fcandal, and that fome fpecial 
 damage has followed ; otherwife it cannot appear, that fuch 
 libel by picture was underftood to be levelled at the plaintiff, 
 or that it was attended with any actionable 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 mafk of juftice and public 
 fpirit, are fometimes made the engines of private fpite and 
 enmity. For this however the law has given a very adequate 
 remedy in damages, either by an action of confpiracy y , which 
 cannot be brought but againft two at the leaft; or, which is 
 the more ufual way, by a fpecial action on the cafe for a falfe 
 and malicious profecution z . In order to carry on the former 
 (which gives a recompenfe for the danger to which the party 
 has been expofed) it is neceflary that the plaintiff fhould ob- 
 tain a copy of the record of his indictment and acquittal ; 
 but, in profecutions 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 a . For it would be \very great 
 difcouragement to the public juftice of the kingdom, if pro- 
 fecutors, who had a. tolerable ground of fufpicion, were lia- 
 ble to be fued at law whenever their indictments mifcarried. 
 
 w 5 Rep. 125. z F. N. B. 116. 
 
 x Hob. 253. ii Mod. 99. a Carth. 421. Lord Raym. Z5j. 
 
 y Finch. L. 305. 
 
 But
 
 Ch. 8. WRONGS. 127 
 
 But an action on the cafe for a malicious profecution may be 
 founded on fuch an indictment whereon no acquittal can bej 
 as if it be rejected by the grand jury, or be coram nonjudke^ 
 or be inefficiently drawn. For it is not the danger of the 
 plaintiff, but thefcandal, vexation, and expenfe, upon which 
 this action is founded b . However, any probable caufe for 
 preferring it is fufficient to juftify the defendant. 
 
 II. WE are next to confider the violation of the right of 
 perfonal liberty. This is effected 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 j as well by removing the actual con- 
 finement for the prefent, as, after it is over, by fubjecting 
 the wrongdoer to a civil action, on account of the damage 
 Curtained by the lofs of time and liberty. 
 
 To conftitute the injury of falfe inprifonment there are 
 two points requifite : i. The detention of the perfon ; and, 
 2. The unlawfulnefs 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 frocks, or even by 
 forcibly detaining one in the public ftreets c . Unlawful, or 
 falfe, imprifonment confifts in fuch confinement or deten- 
 tion without fufficient authority : which authority may arife 
 either from fome procefs from the courts of juftice j or from 
 fome warrant from a legal officer having power to commit, 
 under his hand and feal, and expreffing the caufe of fuch 
 commitment d ; or from fome other fpecial caufe warranted, 
 for the neceflity of the thing, either by common law, or act 
 of parliament ; fuch as the arrefting of a felon by a private 
 perfon without warrant, the impreffing of mariners for the 
 public fervice, or the apprehending of waggoners for mifbe- 
 haviour in the public highways e . Falfe imprifonment alfo 
 may arife by executing a lawful warrant or procefs at an un- 
 
 b 10 Mod. 219, 210. Stra. 691. d Ibitt. 46. 
 
 c 2 InA. 589, e Stat. 7 Geo III. c. 42. 
 
 lawful
 
 128 PRIVATE Bo OK III. 
 
 lawful time, as on a funday f ; or in a place privileged from 
 arrefts, as in the verge of the king's court. This is the in- 
 jury. Let us next fee the remedy : which is of two forts ; the 
 one removing the injury, the other making fatisfa&ian for it. 
 
 THE means of removing the actual injury of falfe imprifon- 
 ment, are fourfold, i. By writ of mainprize. 2. By writ 
 de odio et atia. 3. By writ de homine replegiando. 4. By writ 
 of habeas corpus. 
 
 1. THE writ of mainprize, manucaptio, is a writ directed 
 to the fheriff, (either generally, when any man is imprifon- 
 ed for a bailable offence, and bail hath been refufed ; or fpe- 
 cially, when the offence or caufe of commitment is not pro- 
 perly bailable below) commanding him to take fureties for the 
 prifoner's appearance, ufually called mainpernors^ and to fet 
 him at large g . Mainpernors differ from bail, in that a man's 
 bail may imprifon or furrender him 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 
 anfwer all charges whatfoever h . 
 
 2. THE writ de odio et atia was antiently ufed to be di- 
 rc&ed to the fheriff, commanding him to inquire whether a 
 prifoner charged with murder was committed upon juft caufe 
 of fufpicion, or merely propttr odium et atiam, for hatred and 
 ill-will ; and if upon the inquifition due caufe of fufpicion 
 did not appear, then there iffued another writ for the fheriff to 
 admit him to bail. This writ, according to Bra&on ', 
 ought not to be denied to any man ; it being exprefsly ordered 
 to be made out gratis, without any denial, by magna carta, 
 c. 26. and ftatute Wcftm. 2. i3Edw.I. c. 29. But the ftatute 
 
 f Stat. 29 Car. II. c. 7. h Co. ibid. ch. 3. 4 Inft. 179. 
 
 g F. N. B. 250. i Hal. P. C. 141. /. 3. tr. a. c. 8. 
 
 Cuke on bail and mainpr. ch. 10. 
 
 Of
 
 Ch. 8. WRONGS. 129 
 
 of Glocefter, 6 Edw. I. c. g. reftrained it in the cafe of kill- 
 ing by mifadventure or felf-defence, and the ftatute 28 Edw, 
 III. c. 9. abolifhed it in all cafes whatfoever: but as the fta- 
 tute 42 Edw. III. c. i. repealed all ftatutes then in being, 
 contrary to the great charter, fir Edward Coke is of opinion k 
 that the writ de odio et atia was thereby revived. 
 
 3. THE writ de homine replcgiando 1 lies to replevy a man 
 out 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 fecurity to 
 the fheriff that the man fliall be forthcoming to anfwer any 
 charge againft him. And, if the perfon be conveyed out of 
 the fheriff's jurifdi&ion, the fheriff may return that he is 
 eloignecl, elongatus ; upon which a procefs iflues (called ac- 
 plas in witkernam) to imprifon the defendant himfelf, with- 
 out bail or mainprize m , till he produces the party. But this 
 writ is guarded with fo many exceptions n , that it is not an 
 effectual remedy in numerous inftances, efpecially 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 Englifh 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 
 juftice. Such is the habeas corpus ad refpondendum, when a 
 man hath a caufe of action againft one who is confined by 
 the procefs of fome inferior court; in order to remove the pri- 
 foner, and charge him with this new action in the court 
 
 k 2 Inft. 43. 55, 315. fro morte iominis, vtl pro forefta noftra t 
 
 ' F. N. B. 66. vel pro aliquo olio rrtto, quart fecundttm 
 
 Ray m. 474. confuttud'inemAnglieeniitifitnplcgialrilit* 
 
 n Nificaptus eft per fpeciale pracceptum (Regifir, 77.) 
 nojirum, vel capita'ris jvftiiisrii xoftri f -vet 
 
 VOL. III. I
 
 130 PRIVATE BOOK III, 
 
 above . Such is that ad Jatisfacienditm^ when a prifoner hath 
 had judgment againft him in an action, and the plaintiff is 
 defirous to bring htm up to Come fuperior court to charge him 
 with procefs of execution p . Such alfo are thofe ad profe- 
 queridum^ tejlificandum, deliberandum^ &c ; which ifTue when 
 it is neceflary to remove a prifoner, in order to profecute or 
 bear teflimony in any court, or to be tried in the proper jurif- 
 diction wherein the fact was committed. Such is, laftly, the 
 common writ ad faciendum et recipiendum^ which iflues out of 
 any of the courts of Weftminfter-hall, when a perfon is fued 
 in fome inferior jurifdiction, 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 cumcaufa) to do and re- 
 ceive whatfoever the king's court fhall confider in that behalf. 
 This is a writ grantable of common right, without any mo- 
 tion in* court q ; and it inftantly fuperfedes all proceedings in 
 the court below. But, in order to prevent the furreptitious 
 difcharge of prifoners, it is ordered by ftatute i & 2 P. & M. 
 c. 13. that no habeas corpus fhall iflue to remove any prifoner 
 out of any gaol, unlefs figned by fome judge of the court out 
 of which it is awarded. And, to avoid vexatious delays by 
 removal of frivolous caufes, it is enacled by ftatute 2 1 Jac. I. 
 c. 23. that, where the judge of an inferior court of record is 
 a barrifter of three years {landing, no caufe fhall 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, fhall 
 ever afterwards be again removed : and that no caufe fhall be 
 removed at all, if the debt or damages laid in the declaration 
 do not amount to the fum of five pounds. But an expedient T 
 having been found out to elude the latter branch of the fta- 
 tute, by procuring a nominal plaintiff to bring another ad-lion 
 for five pounds or upwards, (and then by the courfe of the 
 
 2 Mad. 198. . q 2 Mod. 306. 
 
 P a Lilly prac. reg. 4. r Bvhun injlit. Itgd, "5. edit. 1703. 
 
 court
 
 Ch. 8. WRONGS. 131 
 
 court the habeas corpus removed both actions together) it is 
 therefore enacted by iratute 12 Geo. I. C. 29. that the inferior 
 court may proceed in fuch actions as are under the value 
 of five pounds, notwithrlanding other actions may be brought 
 againft the fame defendant to a greater amount. 
 
 BUT the great and efficacious writ, in all manner of ille- 
 gal confinement, is that of habeas corpus ad fubjiciendum ; di- 
 rected to the perfon detaining another, and commanding him 
 to produce the body of the prifoner, with the day and caufe 
 of his caption and detention, ad faciendum, fubjiciendum^ et 
 recipiendum, to do, fubmit to, and receive whatfoever the 
 judge or court awarding fuch writ (hall confider in that be- 
 half'. This is a high prerogative writ, and therefore by the 
 Common law ifluing out of the court of king's bench not only 
 in term-time, but alfo during the vacation % by zfiat from 
 the chief juftice or any other of the judges, and running into 
 all parts of the king's dominions : for the king is at all times 
 entitled to have an account, why the liberty of any of his 
 fubjects is reftrained u , wherever that reftraint may be inflict- 
 ed. If it iflues in vacation, it is ufually returnable before the 
 judge himfelf who awarded it, and he proceeds by himfelf 
 thereon w j unlefs the term fhould intervene, and then it may 
 be returned in court x . Indeed, if the party were privileged 
 in the courts of common pleas and exchequer, as being an 
 officer or fuitor of the court, an habeas corpus ad fubjiciendum 
 might alfo have been awarded from thence >'; and, if the 
 caufe of imprifonment were palpably illegal, they might have 
 discharged him z : but, if he were committed for any-crimi- 
 nal matter, they could only have remanded him, or taken 
 
 s St. Trials, viii. 142. was therefore the 30' h of November, two 
 
 t The pluries habeas corpus dlre&ej to days after the evp >atiun of the term. 
 
 Berwick in 43 Eliz. (cited 4 Burr. 856.) u Cro. Jar. 543. 
 
 'was tefte'd die jfcniis fro'x" foft quinden w 4 Burr. 856. 
 
 fanfli Martini. It appears, by referring . x /fc/. 460. 542. 606. 
 
 to the dominical letter of that year, that y a Inft. 55. 4 Inft. 290. 2 Hal. 
 
 this quindena (Nov. 25.) happened that P. C. 144, 2 Ventr. 24. 
 
 year on a faturday. Thethurfday aftsr z Vaugh. 155. 
 
 I 2 bail
 
 132 PRIVATE BOOK III. 
 
 bail for his appearance in the court of king's bench"; which 
 cccafioned the common pleas to difcountenance fuch appli- 
 cations. It hath alfo been faid, and by very refpedtable au- 
 thorities 1 *, that the like habeas corpus may iflue out of the 
 court of chancery in vacation : but, upon the famous appli- 
 cation to lord Nottingham by Jenks, notwithftanding the 
 moft diligent fearches, no precedent could be found where 
 the chancellor had iffued fuch a writ in vacation , and 
 therefore his lordfhip refufed it. 
 
 IN the court of king's bench it was, and is ftill, neceflary 
 to apply for it by motion to the court d , as in the cafe of all 
 other prerogative writs (certiorari, prohibition, mandamus^ 
 &c) which do not iflue as of mere courfe, without fhewing 
 fome probable caufe why the extraordinary power of the crown 
 is called in to the party's affiftance. For, as was argued by 
 lord chief juftice Vaughan % " it is granted on motion, be- 
 " caufe it cannot be had of courfe ; and there is therefore 
 " no necejjity to grant it : for the court ought to be fatisfied 
 " that the party hath a probable caufe to be delivered." And 
 this feems the more reafonable, becaufe (when once granted) 
 the perfon to whom it is directed can return no fatis factory 
 excufe for not bringing up the body of the prifoner f . So 
 that, if it ifTued of mere courfe, without fhewing to the court 
 or judge fome 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 infanity or other prudential reafons, might ob- 
 tain a temporary enlargement by fuing out an habeas 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 corpus to one 
 confined by the court of admiralty for piracy; there appear- 
 ing, upon his own fhewing, fufficient grounds to confine 
 him g . On the other hand, if a probable ground be (hewn, 
 
 a Carter, ^zl. 2 Jon. 13. e Bufliell's cafe, a Jon. 13. 
 
 > 4 Inft. 182. 2. Hal. P. C. 147. f Cro. Jac. 543. 
 
 c Lord Nott. MSS. Rep. July 1676. s 3 Bulftr, 27, See alfo 2 Roll. Rep, 
 
 * ft Mod. 306. i Lev. i. 135. 
 
 that
 
 Ch. 8. WRONGS. 133 
 
 that the party Is imprifoned without juft caufc h , 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 man that is committed, or detained 
 " in prifon, or otherwife reftrained, though it be by the 
 " command of the king, the privy council, or any other 1 ." 
 
 IN a former part of thefe commentaries k we expatiated at 
 large on the perfonal liberty of the fubje&. 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 permifiion of law. A do&rine co-eval 
 with the firft rudiments of the Englim conftitution ; and 
 handed down to us from our Saxon anceftors, notwithftand- 
 ing all their ftruggles with the Danes, and the violence of the 
 Norman conqueft : aflerted afterwards and confirmed by the 
 conqueror himfelf and his defcendants : and though fometimes 
 a little impaired by the ferocity of the times, and the occafi- 
 onal defpotifm of jealous or ufurping princes, yet eftablifhed 
 on the firmed bafis by the provifions of magna carta, and a 
 long fucceflion of ftatutes enacted under Edward III. To af- 
 fert an abfolute exemption from 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 
 protection impoflible : but the glory of the Englifh law con- 
 fifts in clearly defining the times, the caufes, and the extent, 
 when, wherefore, and to what degree, the imprifonment of 
 the fubject may be lawful. This it is, which induces the ab- 
 folute neceffity of expreiling upon every commitment tb^e 
 reafon for which it is made : that the court upon an habeas 
 corpus may examine into it's validity ; and according to the 
 circumftances of the cafe may difcharge, admit to bail, or 
 remand the prifoner. 
 
 2 Inft. 615. fc Book I. chap, i, 
 
 Com. Journ, j Apr. 1628. 
 
 AND
 
 134 PRIVATE BOOK III. 
 
 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 J that they could not upon 
 an habeas corpus either bail or deliver a prifoner, though com- 
 mitted without any caufe afligned, in cafe he was committed 
 by the fpecial command of the king, or by the lords of the 
 privy council. This drew on a parliamentary inquiry, and 
 produced the petition of right, 3 Car. I. which recites this il- 
 legal judgment, and enar,s that no freeman hereafter {hall 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 ivlajefty's fpecial command, un- 
 uer a general charge of " notable contempts and ftirring up 
 " fedition againft the king and government," the judges de- 
 layed for two terms (including alfo the long vacation) to de- 
 liver an opinion how far fuch a charge was bailable. And, 
 when at length they agreed that it was, they however annexed 
 a condition of finding fureties for the good behaviour, which 
 itill protracted their imprifonment ; the chief juftice fir Ni- 
 cholas Hyde, at the fame time declaring m , 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 aftonifhment by 
 every lawyer prefent; according to Mr Selden's own account 
 of the matter, whofe refentment was not cooled at the dif- 
 tance of four and twenty years n . 
 
 THESE pitiful evaCons gave rife to the ftatute 16 Car. I. 
 c. 10. . 8. whereby it is enacted, that if any perfon be 
 committed by the king himfelf in perfon, or by his privy 
 
 1 State Tr.vit. 136. " insdxm falam pror.umia-vit (Jut Jcm- 
 
 m Ibid. 2.40. " per Jimllis} n*bis perpetui in p'.jlerum 
 
 n " EtiaiK judicum tune primaries r.ijl " denegandum. Quod, ut tdicjtfllmum ju- 
 
 et illud facf remits, refcrlpti illius forer/is, " ru prcdigium, fcitntiorlbus Lie uni'verjit 
 
 " qui libertatis perfonal'n cmnlm^dae i-ln- " ceii/ifum." (findc. Mar. clauf. edit. 
 
 ** d:x leginmui efl fere folus, ufum cmnl- A.D, 1653.) 
 
 council,
 
 Ch. 8. WRONG s. 135 
 
 council, or by any of the members thereof, he (hall have 
 granted unto him, without any delay upon any pretence 
 whatfoever, a writ of habeas corpus, upon demand or motion 
 made to the court of, king's bench or common pleas ; who (hall 
 thereupon, within three court days after the return is made, 
 examine and determine the legality of fuch commitment, and 
 do what to juftice mail appertain, in delivering, bailing, or 
 remanding fuch prifoner. Yet ftill in the cafe of Jenks, be- 
 fore alluded to , who in 1676 was committed by the king in, 
 council for a turbulent fpeech at Guildhall p , newfhifts 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 adfubjidendum in vacation, though at 
 laft he thought proper to award the ufual writs ad delibcran- 
 dum^ &c. whereby the prifoner was difcharged at the Old 
 Bailey. Other abufes had alfo crept into daily practice, 
 which had in fome meafure defeated the benefit of this great 
 conftitutional remedy. The party imprifoning was at liberty 
 to delay his obedience to the firft writ, and might wait till a 
 fecond and a third, called an alias and a pluries^ were iflued, 
 before he produced the party : and many other vexatious 
 fliifts were practifed to detain ftate-prifoners incuftody. But 
 whoever will attentively confider the Englifh hiftory may ob- 
 ferve, that the flagrant abufe of any power, by the crown or 
 it's minifters, has always been productive of a ftrugglej 
 which either difcovers the exercife of that power to be con- 
 trary to Jaw, or (if legal) reftrains it for the future. This 
 was the cafe in the prefent inftance. The oppreffion of an 
 obfcure individual gave birth to the famous habeas corpus adr., 
 31 Car. II. c. 2. which is frequently confidered as another 
 magna carta 1 of the kingdom j and by confequence has alfo 
 in fubfequent times reduced the method of proceeding on 
 thefe writs (though not within the reach of that ftatute, but 
 iffuing merely at the common law) to the true ftandard of 
 law and liberty. 
 
 pag. 132. q See book I. ch. i. 
 
 P State Trials, vii. 471. 
 
 THE
 
 PRIVATE 
 
 THE ftatute itfelf ena&s, i. That the writ {hall be return- 
 ed and the prifoner brought up, within a limited time accord- 
 ing to the diftance, not exceeding in any cafe twenty days. 
 2. That fuch writs fhall be endoried, as granted in purfuance 
 of this act, and llgned by the perfon awarding them r . 3. That 
 on complaint and requeft in writing by or on behalf of any 
 perfon committed and charged with any crime (unlefs com- 
 mitted for treafon or felony expreffed in the warrant, or for 
 fufpicion of the fame, or as acceffory thereto before the fact, 
 or convicted or charged in execution by legal procefs) the lord 
 chancellor or any of the twelve judges, in vacation, upon 
 viewing a copy of the warrant, or affidavit that a copy is de- 
 nied, {hall (unlefs the party has neglected for two terms to 
 apply to any court for his enlargement) award a habeas corpus 
 for fuch prifoner, returnable immediately before himfelf or any 
 other of the judges ; and upon the return made fhall difcharge 
 the party, if bailable, upon giving fecurity to appear and an- 
 fwer to the accufation in the proper court of judicature. 
 4. That officers and keepers neglecting to make due returns, 
 or not delivering to the prifoner or his agent within fix hours 
 after demand a copy of the warrant of commitment, or fhift- 
 ing the cuftody of a prifoner from one to another, without 
 fufficient reafon or authority (fpecified in the act) fhall for the 
 firfr, offence forfeit ioo/. and for the fecond offence 20O/. to 
 the party grieved, and be difabled to hold his office. 5. That 
 no perfon, once delivered by habeas corpus, fhall be recommit- 
 ted for the' fame offence, on penalty of 500 /. 6. That every 
 perfon committed for treafon or felony (hall, if he requires it 
 the firft week of the next term or the firft day of the next fef- 
 fion of 0y<?rand terminer, be indicted in that term or feffion, 
 or elfe admitted to bail ; unlefs the king's witneffes cannot be 
 produced at that time : and if acquitted, or if not indicted 
 and tried in the fecond term or feffion, he {hall be difcharged 
 from his imprifonment for fuch imputed offence : but that no 
 perfon, after the affifes fhall be opened for the county in 
 
 ' Thefe two tfeufes item to be tranfpofed, and fnould properly be placed after th 
 
 Jfk r r .. 
 
 which
 
 Ch. 8. WRONG s. 137 
 
 which he is detained, fhall be removed by habeas corpus, till 
 after the affifes are ended ; but fhall be left to the juftice of 
 the judges of affife. 7. That any fuch prifoner may move 
 for and obtain his habeas corpus^ as well out of the chancery 
 or exchequer, as out of the king's bench or common pleas ; 
 and the lord chancellor or judges denying the fame, on fight 
 of the warrant or oath that the fame is refufed, forfeit feverally 
 to the party grieved the fum of 500 /. 8. That this writ of 
 habeas corpus fhall run into the counties palatine, cinque 
 ports, and other privileged places, and the iflands of Jerfey 
 and Guernfey. 9. That no inhabitant of England (except 
 perfons contracting, or convicts praying, to be tranfported ; 
 or having committed fome capital offence in the place to 
 which they are fent) fhall be fent prifoner to Scotland, Ire- 
 land, Jerfey, Guernfey, or any places beyond the feas, with- 
 in or without the king's dominions : on pain that the party 
 committing, his advifers, aiders, and afliftants, fhall forfeit 
 to the party grieved a fum not lefs than 500 /. to be reco- 
 vered with treble cofts ; fhall be difabled to bear any office 
 of truft or profit ; fhall incur the penalties ofpraemunire ; and 
 fhall be incapable of the king's pardon. 
 
 THIS is the fubftance of that great and important flatute : 
 which extends (we may obfervc) only to the cafe of commit- 
 ments for fuch criminal charge, as can produce no inconve- 
 nience to public juftice 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 expected by the court, agreeable to 
 antient precedents * and the fpirit of the act of parliament, 
 that the writ fhould be immediately obeyed, without waiting 
 for any alias or pluries ; otherwife an attachment will iflue. 
 By which admirable regulations, judicial as well as parlia- 
 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- 
 
 ' 4 Burr. 856. 
 
 vernment.
 
 138 PRIVATE BOOK III. 
 
 vernment. For it frequently happens in foreign countries, 
 (and has happened in England during temporary fufpenfions l 
 of the ftatute) that perfons apprehended upon fufpicion have 
 fuffered a long imprifonment, merely becaufe they were for- 
 gotten. 
 
 THEfatisfaftory remedy for this injury of falfe imprifon-' 
 ment, is by an a&ion of trefpafs, vi et armis, ufually called 
 an action of falfe imprifonment; which is generally, and al- 
 moft unavoidably, accompanied with a charge of aflault and 
 battery alfo : and therein the party {hall recover damages for 
 the injury he has received ; and alfo the defendant is, as for 
 all other injuries committed with force, or vi et armis, liable 
 to pay a fine to the king for the violation of the public peace. 
 
 III. WITH regard to the third abfolute right of individu- 
 als, or that of private property, though the enjoyment of it, 
 when acquired, is ftridlly a perfonal right ; yet as it's na- 
 ture and original, and the means of it's acquifition or lofs, 
 fell more diretly under our fecond general divifion, of the 
 rights of things \ and as, of courfe, the wrongs that affect 
 thefe rights muft 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- 
 joyment , as well as to the rights, of property. And therefore 
 I fhall here conclude the head of injuries affecting the abfolute 
 rights of individuals. 
 
 WE are next to contemplate thofe which affect their rela- 
 tive rights j or fuch as are incident to perfons confidered as 
 members of fociety, and connected to each other by various 
 ties 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, mafter 
 and fervant. 
 
 Sec Vol. I. pag. 136. 
 
 I. INJURIES
 
 Ch. 8. WRONGS. 139 
 
 I. INJURIES that may be offered to a perfon, confidered 
 as a kufband, are principally three : abduttion, or taking away 
 a man's wife ; adultery^ or criminal converfation with her j 
 and beating or otherwife abufing her. i. As to the firft fort, 
 abduftion or taking her away, this may either be by fraud and 
 perfuafion, or open violence : though the law in both cafes 
 fuppofes force and conftraint, the wife having no power to 
 confent ; and therefore gives a remedy by writ of rawjhment^ 
 or action of trefpafs vi et armis^ de uxore rapta et abdutta u . This 
 action lay at the common law ; and thereby the hufband (hall 
 recover, not the poffeffion w of his wife, but damages for 
 taking her away : and by ftatute Weftm. i. 3 Edw. I, c. 13. 
 the offender fhall alfo be imprifoned two years, and be fined 
 at the pleafure of the king. Both the king and the hufband 
 may therefore have this action x ; 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 7. The old law was fo ftricl: 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 fhe was benighted and in danger of being loft or 
 drowned z : but a ftranzer might carrv her behind him on. 
 
 O o J 
 
 horfeback to market, to a juftice of the peace for a warrant 
 againft her hufband, or to the fpiritual court to fue for a di- 
 vorce a . 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 ; yet, confidered as a civil 
 injury, (and furely there can be no greater) the law gives a 
 fatisfaction to the hufband for it by aclion of trefpafs vi et 
 armis againft the adulterer, wherein the damages recovered 
 are ufually very large and exemplary. But thefe are properly 
 increafed and diminifhed by circumftances b ; as the rank and 
 fortune of the plaintiff and defendant j the relation or con- 
 
 F. N. B. 89. z Bro. Abr, t. trefpafs. 313. 
 
 w 2 Inft. 434. t a Jbld. 207. 440. 
 
 x Hid. b Law of tii/i frius. 16. 
 y Lav; of r.ijtprius. 74, 
 
 neclioR
 
 140 PRIVATE BOOK III. 
 
 ne&ion between them ; the fedu&ion or otherwife of the wife, 
 founded on her previous behaviour and character j and the 
 hufband's obligation by fettlement or otherwife to provide for 
 thofe children, which he cannot but fufpecl: to be fpurious. 
 3. The third injury is that of beating a man's wife or other- 
 wife ill ufmg her ; for which, if it be a common aflault, bat- 
 tery, or imprifonment, the law gives the ufual remedy to re- 
 cover damages, by action of trefpafs v't et armis^ which mufl 
 be brought in the names of the hufband and wife jointly: but 
 if the beating or other maltreatment be very enormous, fo 
 that thereby the hufband is deprived for any time of the com- 
 pany and affiftance of his wife, the law then gives him zfepa- 
 vate remedy by an action of trefpafs, in nature of an action 
 upon the cafe, for this ill-ufage, per quod confortium cunifit ; in 
 which he mail recover a fatisfa&ion in damages c . 
 
 II. INJURIES that may be offered to a perfon confidered 
 in the relation of a parent were likewife of two kinds : i. Ab~ 
 duftion^ or taking his children away ; 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. But this laft injury is now ceafed, together 
 with the right upon which it was grounded : for, the father 
 being no longer entitled to the value of the marriage, the 
 marrying his heir does him no fort of injury, for which a 
 civil adlion will lie. As to the other, of abdu&ion 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 a&ion would lie for taking and carrying away 
 any other child befides the heir : fome holding that it would 
 not, upon the fuppofition that the only ground or caufe of 
 adlion 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 intereft in them all, to 
 provide for their education d . If therefore before the aboli- 
 tion of thefe tenures it was an injury to the father to take 
 
 fc Cro. Jac. 501. 538, d Cro. Eliz. 770. 
 
 away
 
 Ch. 8. WRONGS. 141 
 
 away the reft of his children, as well as his heir, (as I am 
 inclined to think it was) it ftill remains an injury, and is re- 
 mediable by a writ of ravijbment^ or, action of trefpafs vi eg 
 armisy de filio^ vel filia^ rapto vel abduflo e ; in the fame man- 
 ner as the hufband may have it, on account of the ab- 
 du&ion of his wife. 
 
 III. OF a fimilar nature to the laft is the relation of guar- 
 dian and ward ; and the like actions mutatis mutandis, as are 
 given to fathers, the guardian alfo has for recovery of da- 
 mages, when his ward is ftolen or ravifhed away from him f . 
 And though guardianfhip in chivalry is now totally abolifhed, 
 which was the only beneficial kind of guardianfhip to the 
 guardian, yet the guardian in focage was always g and is ftill 
 entitled to an a&ion of ravijhment, if his ward or pupil be 
 taken from him : but then he muft account to his pupil for 
 the damages which he fo recovers h . And, as guardian in 
 focage was alfo entitled at common law to a writ of right of 
 wardy de cuftodia terras et baeredis, in order to recover the 
 pofleflion and cuftody of the infant 1 , fo I apprehend that he 
 is ftill entitled to fue out this antiquated writ. But a more 
 fpeedy and fummary method of redreffing all complaints rela- 
 tive to wards and guardians hath of late obtained by an appli- 
 cation to the court of chancery j which is the fupreme guar- 
 dian, and has the fuperintendent jurifdi&ion, of all the in- 
 fants in the kingdom. And it is exprefsly provided by ftatute 
 12 Car. II. c. 24. that teftamentary guardians may maintain 
 an action of ravifhment or trefpafs, for recovery of any of 
 their wards, and alfo for damages to be applied to the ufe and 
 Benefit of the infants k . 
 
 IV. To the relation between mafter zndfervavt, and the 
 rights accruing therefrom, there are two fpecies of injuries in- 
 cident. The one is, retaining a man's hired fervant be- 
 fore his time is expired ; the other is beating or confining him 
 in fuch a manner that he is not able to perform his work. As 
 
 F.N. B. 90. h Hale on F. N. B. 139. 
 
 f Ibid. 139, i F. N. B. ibid. 
 
 I Ibid* fe a P. Wn, zo. 
 
 tt
 
 142 PRIVATE Bo OK III. 
 
 to the firft ; the retaining another perfon's fervant during the 
 time he has agreed to ferve his prefent mafter j this, as it is an 
 ungentlemanlike, fo it is alfo an illegal act. For every maf- 
 ter has by his contract purchafed for a valuable confideration 
 the fervice of his domeftics for a limited time : the inveigling 
 or hiring his fervant, which induces a breach of this contract, 
 is therefore an injury to the mafter ; and for that injury the 
 law has given him a remedy by a fpecial Action on the cafe : 
 and he may alfo have an action againft the fervant for the 
 lion-performance of his agreement '. But, if the new mafter 
 was not apprized of the former contradl:, no action lies againft 
 him ra , unlefs he refufes to reftore the fervant upon demand. 
 The other point of injury, is that of beating, confining, or 
 difabling a man's fervant, which depends upon the fame 
 principle as the laft ; viz. the property which the mafter has 
 by his contract acquired in the labour of the fervant. In this 
 x:afe, befides the remedy of an action of battery or imprifon- 
 ment, which the fervant himfelf as an individual may have 
 againft the aggreflbr, the mafter alfo, as a recompence for 
 bis 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 qttodfervi- 
 tium amifit n : and then the jury will make him a proportion- 
 able pecuniary fatisfaction. A fimilar practice to which, we 
 find alfo to have obtained among the Athenians; where maf- 
 ters were entitled to an action againft fuch as beat or ill 
 treated their fervants . 
 
 WE may obfervc that in thefe relative injuries, notice is only 
 .taken of the wrong done to the fuperior of the parties related, 
 by the breach and diilblution of either the relation itfelf, or at 
 leaft the advantages accruing therefrom j while the lofs of the 
 inferior by fuch injuries is totally unregarded. One reafon for 
 which may be this : that the inferior hath no kind of property 
 in the company, care, or afiiftance of the fuperior, as the fupe- 
 
 1F.N. B. 167. "9 Rep. 113. loRco. 130. 
 
 Utid. Wiash. jr. Ptt. Amiqu. b. i. . 16.
 
 Ch. 8. WRONGS. 
 
 rior is held to have in thofe of the inferior ; and therefore the 
 inferior can fuffer no lofs or injury. The wife cannot reco- 
 ver damages for beating her hufband, for flie hath no fepa- 
 rate intereft in any thing during her coverture. The child 
 hath no property in his father or guardian ; as they have in 
 him, for the fake of giving him education and nurture. Yet 
 the wife or the child, if the hufband or parent be flain, have 
 a peculiar fpecies of criminal profecution allowed them, in 
 the nature of a civil fatisfacTrion j which is called an appeal* 
 and which will be confidered in the next book. And fo the 
 fervant, whofe matter is difabled, does not thereby lofe his 
 maintenance or wages. He had no property in his mafter j 
 and, if he receives his part of the ftipulated contract, he 
 fuffers no injury, and is therefore intitled to no action, for 
 any battery or imprifonment which fuch mafter may happen 
 to endure.
 
 144 PRIVATE Bo OK III. 
 
 CHAPTER THE NINTH. 
 
 OF INJURIES TO PERSONAL 
 PROPERTY. 
 
 IN the preceding chapter we confidered the wrongs or in- 
 juries that affecled the rights of perfons, either confider- 
 ed as individuals, or as related to each other ; and are at pre- 
 fent to enter upon the difcuffion of fuch injuries as affedt the 
 rights of property, together with the remedies which the law 
 has given to repair or redrefs them. 
 
 AND here again we muft follow our former divifion a 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 j 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. 
 
 FIRST then we are to confider the injuries that may be 
 offered to the rights of perfonal property ; and, of thefe, firft 
 the rights of perfonal property in pojjej/iony and then thofe 
 that are in aftion only b . 
 
 I. THE rights of perfonal property in poj/ejfflon are liable to 
 two fpecies of injuries : the amotion or deprivation of that 
 pofieflion ; and the abufe or damage of the chattels, while 
 the pofleflion continues in the legal owner. The former, or 
 deprivation of pofleflion, is alfo divifible into two branches ; 
 the unjuft and unlawful taking them away j and the unjuft 
 detaining them, though the original taking might be lawful. 
 
 a See book II. cb. 2. b KiJ, h. 25. 
 
 I. AND
 
 Ch. 9. WRONG s. 145 
 
 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 ftated, and preferved and tranf- 
 ferred by grants, deeds, and wills, which are a continuation 
 of that occupancy ; it follows as a necefiary confequence, that 
 when I once have gained a rightful pofleffion of any goods or 
 chattels, either byajuft occupancy or by a legal transfer, 
 whoever either by fraud or force difpofTefles me of them is 
 guilty of a tranfgreflion againft the law of fociety, which is 
 a kind of fecondary law of nature. For there muft be an end 
 of all focial commerce between man and man, unlefs private 
 poiTeflions be fecured from unjuft invafions : and, if an ac- 
 quifition of goods by either force or fraud were allowed to be 
 a fufficient title, all property would foon be confined to the 
 moft 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 poflefllons. 
 
 THE wrongful taking of goods being thus moft clearly an 
 iniury, the next confideration is, what remedy the law of 
 England has given for it. And this is, in the firft place, the 
 icftituticn of the goods themfelves fo wrongfully taken, with 
 damages for the lofs fuftained by fuch unjuft invafion ; which 
 is effected by aclion of replevin : an inftitution, which the 
 mirror c aferibes 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 aclion 
 of detinue (of which I fhall prefently fay more) are almoft 
 the only actions, in which the actual fpecinc pofleffion of 
 the identical perfonal chattel is reftored to the proper owner, 
 ^or things perfonal are 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 reftore 
 them in the fame condition as when they came to the hands 
 of the wrongful poflefibr. And, fmce it is a maxim that 
 " lex nemincm cogit ad vana, feu impoj/ibilia" it therefore 
 
 = C. 2. .6. 
 
 VOL. III. K contents
 
 146 PRIVATE BOOK III. 
 
 contents itfelf in general with reftoring, not the thing itfelf, 
 but a pecuniary equivalent to the party injured j by giving 
 him a fatisfa&ion in damages. But in the cafe of a dtftrefs^ 
 the goods are from the firft taking in the cuftody of the law, 
 and not merely in that of the diftreinor ; and therefore they 
 may not only be identified, but alfo reftored to their firft 
 pofleflbr, 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 refcous^ for which the diftreinor has a remedy 
 in damages, either by writ of refcous d , in cafe they were 
 going to the pound, or by writ de parco fratto, or pound- 
 breach % in cafe they were actually impounded. He may 
 alfo at his option bring an action on the cafe for this injury ' 
 and fhall therein, if the diftrefs were taken for rent, recover 
 treble damages f . The ten, refcous^ 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 plaintifFhas a fimilar remedy by action on the cafe, 
 or of refcou3 s : or, if the ftieriff makes a return of fuch refcous 
 to the court out of which the procefs hTued, the refcuer will 
 be punifhed by attachment h . 
 
 AN action of replevin, the regular way of contefting the 
 validity of the tranfa<SHon, is founded, I faid, upon a diftrefs 
 taken wrongfully and without fufficient caufe : being a re- 
 delivery of the pledge 5 , or thing taken in diftrefs, to the 
 ov/ner ; 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 re -deliver it to the 
 owner k . And formerly, when the party diftreined upon in- 
 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 fheriff to deliver the diftrefs to the owner, and after- 
 
 d F. N. B. ioj. i See pag. 13. 
 
 * Ibid, ice. j Co. Litt. 145. 
 
 f Star. 2 W. & M. SefT. i . c. 5. kg Rep. 147. 
 
 g 6 Mod. 211. l F.N. B.68. 
 t Cro. Jac. 419. Blk. S S6.
 
 Ch. 9. WRONGS. 147 
 
 wards to do juftice in refpedt of the matter in difpute in his 
 own county-court. But this being a tedious method of 
 proceeding, the beafts or other goods were long detained 
 from the owner, to his great lofs and damage m . For which 
 reafon the ftatute of Marlbridge n directs, that (without 
 fuing a writ out of the chancery) the fheriff, immediately 
 upon 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 
 fhall make at leaft four deputies in each county, foV the fole 
 purpofe of making replevins. Upon application therefore, 
 either to the fheriff, or one of his faid deputies, fecurity is to 
 be given, in purfuanceof the ftatute of Weftm. 2. i3Edw. I. 
 c. 2. I. That the party replevying will purfue his action , 
 againft the diftreinor, for which purpofe he puts mplegios da 
 profequendo, or pledges to profecute j 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 on a diftrefs for rent, fhall take a bond with two 
 fureties in a fum of double the value of the goods diftreined, 
 conditioned to profecute the fuit with effect and without de- 
 lay ; which bond fhall be affigned to the avowant or perfon 
 making cognizance, on requeft made to the fheriff j and, if 
 forfeited, may be fued in the name of the affignee. And cer- 
 tainly, as the end of all diftreffes is only to compel the party 
 diftreined upon to fatisfy the debt or duty owing from him, 
 this end is as well anfwered by fuch fufficient fureties as by 
 retaining the very diftrefs, which might frequently occafion 
 great inconvenience to the owner 5 and that the law never 
 wantonly inflicts. The fheriff, on receiving fuch fecurity, is 
 immediately, by his officers, to caufe the chattels taken in 
 diftrefs to be reftored into the poffeffion of the party diftreined 
 upon j unlefs the diftreinor claims a property in the goods fo 
 taken. For if, by this method of diftrefs, the diftreinor hap- 
 
 > 2 Inft. i j9. 51 Hen. HL c. 21. 
 
 K 2 pens
 
 14 PRIVATE Bo OK III. 
 
 pens to come again into pofleffion of his own property in goods 
 which before he had loft, the law allows him to keep them, 
 without any reference to the manner by which he thus has 
 regained pofleffion ; being a kind of perfonal remitter . If 
 therefore the diftreinor claims any fuch property, the party re- 
 plevying muft fue out a writ de proprletate probanda^ in which 
 the {heriff is to try, by an inqueft, in whom the property pre- 
 vious to the diftrefs fubfifted P. And if it be found to be in 
 the diftreinor, the {heriff can proceed no farther ; but muft 
 return the claim of property to the court of king's bench or 
 common pleas, to be there farther profecuted, if thought ad- 
 vifeable, and there finally determined 1. 
 
 BUT if no claim of property be put in, or if (upon trial) 
 the fheriff's inqueft determines it againft the diftreinor; then 
 the {heriff is to replevy the goods (making ufe of even force, 
 if the diftreinor makes refiftance r ) in cafe the goods be found 
 within his county. But if the diftrefs be carried out of the 
 county, or concealed, then the {heriff may return that the 
 goods, or beafts, are eloigned, elongata, carried to a diftancc, 
 to places to him unknown : and thereupon the party replevy- 
 ing ftiall have a writ of capias in withernam, in vetito (or, more 
 properly, repetito] namio ; a term which fignifies a fecond or 
 reciprocal diftrefs % in lieu of the firft which was eloigncd. 
 It is therefore a command to the {heriff 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 a , and as a punifhir.ent for the illegal be- 
 haviour of the original diftreinor. For which reafon goods 
 taken in withernam cannot be replevied, till the original dif- 
 trefs is forthcoming *. 
 
 See pag. 19. *> In the old northern languages the 
 P Finch. L. 316. word ivitkcrnam is ufcd as equivalent to 
 S Co. Litt. 145. Finch. L. 450. refrifats. (Stieinhcok, de jure Sucon. 
 1 2 Inft. 193. /. i. c. to.) 
 
 * Smith's commonw. b. 3. c. 10. v Raym. 475. The 'fubftance of this* 
 a Inft. 141. Hickes's Ibcfaur, 164, rule compofed the terms of that famouf 
 
 t F. N* B, 69. 73. queftion, with which Cr Thorass More 
 
 (when
 
 Ch. 9. WRONGS. 149 
 
 BUT, in common cafes, the goods are delivered back to 
 the party replevying, who is then bound to bring his a&ion 
 of replevin; which may be profecuted in the county court, 
 be the diftrefs of what value it may w . But either party may 
 remove it to the fuperior courts of king's bench or common 
 pleas, by writ of recordari or pone x ; the plaintiff at pleafure, 
 the defendant upon reafonable caufe Y : and alfo, if in the 
 courfe of proceeding any right of freehold comes in queftion, 
 the flieriff can proceed no farther 2 ; fo that it is ufual to carry 
 it up in the firft inftance to the courts of Weftminfter-hall. 
 Upon this action brought, and declaration delivered, the 
 diftreinor, who is now the defendant, makes a-vowry ; that 
 is, he avows taking the diftrefs in his own right, or the right 
 of his wife a ; and fets forth the reafon of it, as for rent 
 arrere, damage done, or other caufe: or elfe, ifhejufHfies 
 in another's right as his bailiff or fervant, he is faid to make 
 cognizance ; that is, he acknowleges the taking, but infifts that 
 fuch taking was legal, as he acled 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; viz. that the diftrefs was 
 wrongfully taken ; he has already got his goods back into his 
 own pofleffion, and fhall keep them, and moreover recover 
 damages b . But if the defendant prevails, by the default or 
 nonfuit of the plaintiff, then he fhall have a writ de retorno 
 babendo^ whereby the goods or chattels (which were diftrein- 
 ed and then replevied) are returned again into his cuftody; 
 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 fo in infinltum to the in- 
 tolerable vexation of the defendant. Wherefore the ftaiute 
 
 (when a ftudent on his travels) is faid to plough, taken in lultbernam, are incapa- 
 
 have puzzled a pragmatical profeflbr in ble of being replevied. (Hoddefd. c. 5.) 
 
 the univerfity of Bruges in Flanders ; w -i Inft. 139. 
 
 who gave a univerfal challenge to difpute x 2. Inft. 23. 
 
 with any perfon in any fciencc : in omnl J F.N.B. 69, 70. 
 
 fcibili, et de qtiolibet ente. U[~on which z Finch. L. 317. 
 
 Mr. iMorefent him this queftion, " utrum * 2 Saund. 195. 
 
 " a<veriacarucae, cafta inretito namio,Jint b F. N. B. 69, 
 
 (t irrepkgibllia j" -whether beafis of the 
 
 K 3 or*
 
 150 PRIVATE BOOK III. 
 
 of Weftm. 2. c. 2. reftrains the plaintiff, when non-fuited, 
 From fuing out any frefh replevin ; but allows him a judicial 
 writ, ifluing out of the original record, and called a writ of 
 fecond deliverance, in order to have the fame diftrefs again 
 delivered to him, on giving the like fecurity as before. And, 
 if the plaintiff be a fecond time nonfuit, or if the defendant 
 has j udgment upon verdict or demurrer in the firft replevin, 
 he fhall have a writ of return irreplevifable; after which no writ 
 of fecond deliverance fhall be allowed c . But in cafe of a 
 diftrefs for rent arrere, the writ of fecond deliverance is in 
 effect d taken away by ftatute 17 Car. II. c. 7. which directs 
 that, if the plaintiff be nonfuit before iflue joined, then upon 
 fuggeftion made on the record in nature of an avowry or cog- 
 nizance j or if judgment be given againft him on demurrer, 
 then, without any fuch fuggeftion, the defendant may have a 
 writ to inquire into the value of the diftrefs by a jury, and 
 {hall recover the amount of it in damages, if lefs than the 
 arrear of rent j or, if more, then fo much as fhall be equal 
 to fuch arrear, with cofts : or, if the nonfuit be after iffue 
 jeined, or if a verdict be againft the plaintiff, then the jury 
 impanelled to try the caufe fhall affefs fuch arrears for the 
 defendant : and if (in any of thefe cafes) the diftrefs be in- 
 fufEcient to anfwer the arrears diftreined for, the defendant 
 may take a farther diftrefs or diftrefles e . But otherwife, if, 
 pending a replevin fora former diftrefs, a man diftreins again 
 for the fame rent or fervice, then the party is not driven to 
 his action of replevin, but fhall have a writ of recaption f , and 
 recover damages for the defendant the re-diftreinor's contempt 
 of the procefs of the law. 
 
 IN like manner, other remedies for other unlawful takings 
 of a man's goods confift only in recovering a fatisfaction in 
 damages. As if a man take the goods of another out of his 
 actual or virtual pofTefTion, without having a lawful title fo 
 to do, it is an injury ; which, though it doth not amount 
 to felony unlefs it be done animo furandi^ is neverthelefs a 
 tranfgreflion, for which an action oftrefpafs vi et armis will 
 
 t Tnft. 340. Stat. 17 Car. II. c. 7. 
 
 d J Vent, 64. f F. N. B. 71. 
 
 lie;
 
 Ch. 9, WRONGS. 151 
 
 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 action of trover and converfton, of which I fhall 
 prefently fay more. 
 
 2. DEPRIVATION of poffeffion 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 fufficient amends ; 
 now, though the original taking was lawful, my fubfequent 
 detainment of them after tender of amends is wrongful, and 
 he fhall have an action of replevin agzinft me to recover them g : 
 in which he fhall recover damages only for the detention and not 
 for the caption, becaufe the original taking was lawful. Or, if 
 I lend a man a horfe, and he afterwards refufes to reftore it, 
 this injury confifts in the detaining, and not in the original 
 taking, and the regular method for me to recover pofTeffion is 
 by action of detinue h . In this action, of detinue, it is necef- 
 fary to afcertain the thing detained, in fuch manner as that 
 it may be fpecifically known and recovered. Therefore it 
 cannot be brought for money, corn, or the like : for that can- 
 not be known from other money or corn ; unlefs it be in a 
 bag or a fack, for then it may be diftinguifhably marked. In 
 order therefore to ground an action of detinue, which is only 
 for the detaining, thefe points are neceflary * : i. That the 
 defendant came lawfully by the goods, as either by delivery to 
 him, or finding them ; 2. That the plaintiff have a property ; 
 3. That the goods themfelves be of fome value ; and 4. That 
 they be afcertained in point of identity. Upon this the jury, 
 if they find for the plaintiff, aflefs the refpective values of the 
 feveral parcels detained, and alfo damages for the detention. 
 And the judgment is conditional; that the plaintiff recover 
 the faid goods, or (if they cannot be had) their refpective 
 values, and alfo the damages for detaining them j. But there 
 is one difadvantage which attends this action ; viz. that the 
 defendant is herein permitted to wage his law, that is, to ex- 
 
 g F. N. B. 69. i Co. Litt. 286. 
 
 b Ibid. 138. j Co. Entr, 170. Cro. Jac. 6Sr. 
 
 K 4 culpate
 
 152 PRIVATE BOOK III. 
 
 culpate himfelf by oath k , and thereby defeat the plaintiff of 
 his remedy : which privilege is grounded on the confidence 
 originally repoicd in the bailee by the bailor, in the borrower 
 by the lender, and the like ; from whence arofe a ftrong 
 presumptive evidence, that in the plaintiff's own opinion the 
 defendant was worthy of credit. But for this reafon the 
 action itfelf is of late much difufed, and has given place to 
 the action of trover. 
 
 THIS action of trover and converfion, was in it's original 
 an action of trefpafs upon the cafe, for recovery of damages 
 againft fuch perfon as had found another's goods, and refufed 
 to deliver them on demand, but converted them to his own 
 ufe j from which finding and converting it is called an action 
 of trover and converfion. The freedom of this action from 
 wager of law, and the lefs degree of certainty requifite in de- 
 fcribing the goods ', gave it fo confiderable an advantage 
 over the action of detinue^ that by a fiction of law actions of 
 trover were at length permitted to be brought againft any 
 man, who had in his poffefficn by any means whatfoever 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 finds 
 them ; but no tinder is allowed to. acquire a property therein, 
 unlefs the owner be for ever unknown m : and therefore he 
 rnuft not convert them to his own ufe, which the law pre- 
 fumes him to do, if he refufes to reftore them to the owner : 
 for which reafon fuch refufal alone is, prima facie, fufficient 
 evidence of a converfion n . 'The fact of the finding, or tro- 
 ver, is therefore now totally immaterial : for the plaintiff 
 needs only to fuggeft (as words of form) that he loft fuch 
 goods, and that the defendant found them : and, if he proves 
 that the goods are bis property, and that the defendant had 
 them in his poffeflion, it is fufEcient. But a converfion muft 
 be fully proved : and then in this action the plaintiff (hall 
 recover damages, equal to the value of the thing converted, 
 but not the thing itfelf; which nothing will recover but an 
 action of detinue or replevin, 
 
 k Co. Litt, 295. ro See book I. c. 8. book II. ch. r. and 26 
 
 1 Salk. 654, jo Rep. 56. j^S
 
 Ch. 9. WRONGS. 153 
 
 As to the damage that may be offered to things perfonal, 
 while in the pofleflion 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 a 
 worfe condition than before, thefe are injuries too obvious to 
 need explication. I have only therefore to mention the re- 
 medies given by the law to redrefs them, which are in two 
 fhapes : by action of trefpafs vi et armis, where the act is in 
 itfelf immediately injurious to another's property, and there- 
 fore necefTarily accompanied with fome degree of force ; and 
 by fpecial action on the cafe, where the act is in itfelf indiffe- 
 rent, and the injury only confequential, and therefore arifmg 
 without 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 direction ; for the action will 
 lie againft the mafter as well as the fervant . And, if a man 
 keeps a dog or ether brute animal, ufed to do mifchief, as 
 by worrying fheep, or the like, the owner muft anfwer for 
 the confequences, if he knows of fuch evil habit'. 
 
 II. HITHERTO of injuries affecting the right of things 
 perfonal, in poffejjion. We are next to confider thofe which 
 regard things in aftion only; or fuch rights as are founded 
 on, and arife from contracts ; the nature and feveral divifions 
 of which were explained in the preceding volume 1. Xhe 
 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 {hall now endeavour to reduce 
 them into a narrow compafs, by here making only a twofold 
 divifion of contracts ; viz. contracts exprefs, and contracts 
 implied; and confidering the injuries that arife from the vio- 
 lation of each, and their refpedtive remedies. 
 
 EXPRESS contracts include three diftinct fpecies ; debts, 
 covenants, and promifes. 
 
 Noy's Max. c. 44. n See book II. ch. 30. 
 
 P Cra. Car. 254. 487. 
 
 i. Ti;s
 
 154 PRIVATE BOOK Ilf. 
 
 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 futn ; a bill or note ; a fpecial bargain ; or a rent re- 
 ferved on a leafe; where the quantity is fixed and unalterable, 
 and does not depend upon any after-calculation to fettle it. 
 The non-payment of thefe is an injury, for which the proper 
 remedy is by action of debt r , to compel the performance of 
 the contract and recover the fpecifical fum due s . This is the 
 fhorteft and fureft remedy; particularly where the debt arifes 
 upon a fpecialty, that is, upon a deed or inftrument under 
 feal. So alfo, if I verbally agree to pay a man a certain price 
 for a certain parcel of goods, and fail in the performance, an 
 action of debt lies againft me ; for this is alfo a determinate 
 contract : but if I agree for no fettled price, I am not liable 
 to an action of debt, but a fpecial action on the cafe, accord- 
 ing to the nature of my contract. And indeed actions of 
 debt are now feldom brought but upon fpecial contracts under 
 feal : wherein the fum due is clearly and precifely exprefled : 
 for in cafe of fuch an action upon a fimple contract, the plain- 
 tiff labours under two difficulties. Firft, the defendant has 
 here the fame advantage as in an action of detinue, that of 
 waging his law, or purging himfelf of the debt by oath, if 
 he thinks proper f. Secondly, in an action of debt the plain- 
 tiff muft recover the whole debt he claims, or nothing at all. 
 For the debt is one fingle caufe of action, fixed and deter- 
 mined j and which therefore, if the proof varies from the 
 claim, cannot be looked upon as the fame contract whereof 
 the performance is fued for. If therefore I bring an action 
 of debt for 30 /, I am riot at liberty to prove a debt of 2O/, 
 and recover a verdict thereon ' ; any more than if I bring an 
 action of detinue for a horfe, I can thereby recover an ox. 
 For I fail in the proof of that contract, which my action or 
 complaint has alleged to be fpecific, exprefs, and determinate. 
 But in an action on the cafe, on what is called an indebitatus 
 ajjumpfit^ which is not brought to compel a fpecific perform- 
 ance of the contract, but to recover damages for it's non- 
 
 r F.N. B 1 19. f 4 Rep. 94. 
 
 Seeaipcnd.x, N. III. . i. ' Dyer. 119. 
 
 performance,
 
 Ch. 9. WRONGS. 155 
 
 performance, the implied aj/iimpfit y and confequently the 
 damages for the breach of it, are in their nature indetermi- 
 nate; and will therefore adapt and proportion themfelves to 
 the truth of the cafe which fhall be proved, without being 
 confined to the precife demand ftated in the declaration. For 
 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 actual debt. So that I may 
 declare that the defendant, being indebted to me 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. 
 
 THE form of the writ of debt is fometimes in the debet and 
 detinet) and fometimes in the detinet only : that is, the writ 
 ftates, either that the defendant owes and unjuftly detains the 
 debt or thing in queftion, or only that he unjuftly detains it. 
 It is brought in the debet as well as detinet^ when fued by one 
 of the original contracting parties who perfonally gave the 
 credit, againft the other who perfonally incurred the debt, or 
 againft his heirs, if they are bound to the payment j as by the 
 obligee againft the obligor, the landlord againft the tenant, 
 &V. 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, 
 fliall be fued for in the detinet only u . So alfo if the action 
 be for goods, for corn, or an horfe, the writ mail be in the 
 detinet only j for nothing but a fum of money, for which I 
 (or my anceftors in my name) have perfonally contracted, is 
 properly confidered as my debt. And indeed a writ of debt 
 in the detinet only, for goods and chattels, is neither more 
 nor lefs than a mere writ of detinue ; and is followed by the 
 very fame judgment v . 
 
 2. A COVENANT alfo, contained in a deed, to do a direct 
 act or to omit one, is another fpecies of exprefs contracts, 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 
 
 F. N. B. 113. Rafl. Entr. 174. 
 
 trade
 
 156 PRIVATE BOOK III. 
 
 trade in a particular place, and is not at York at the time 
 appointed, or carries on his trade in the place forbidden, thefe 
 are direct breaches of his covenant ; and may be perhaps 
 greatly to the di fad vantage and lofs of the coven an tee. The 
 remedy for this is by a writ of covenant" : which directs the 
 fheriffto command the defendant generally to keep his cove- 
 nant with the plaintiff (without fpecifying the nature of the 
 covenant) or fhew 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 fubi'e- 
 quent proceedings fet forth with precifion the covenant, the 
 breach, and the lofs which has happened thereby; whereupon 
 the jury will give damages, in proportion to the injury fuf- 
 tained by the plaintiff, and occafioned by fuch breach of the 
 defendant's contract. 
 
 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 x . For this the remedy is by a fpecial 
 \vrit of covenant, for a fpecific performance of the contract:, 
 concerning certain lands particularly defcribed in the writ. 
 It therefore directs the fheriff 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 land are 
 ufually levied at common law * j the plaintiff, or perfon to 
 whom the fine is levied, bringing a writ of covenant, in 
 which he fuggefts fome agreement to have been made between 
 him and the deforciant, touching thofe particular lands, for 
 the completion of which he brings this action. And, for the 
 end of this fuppofed difference, the fine or finally concordia is 
 made, whereby the deforciant (now called the cognizor) ac- 
 knowleges the tenements to be the right of the plaintiff, now 
 called the cognizce. And moreover, as leafes for years were 
 formerly confidered only as contracts z or covenants for the 
 enjoyment of the rents and profits, and not as the conveyance 
 
 F. N. B. 145. y See book IT. ch. 21. 
 
 * Hal, on F. N. B. 140. z Ibid. ch. 9. 
 
 of
 
 Ch. 9. WRONGS. 157 
 
 of any real intereft in the land, the antient remedy for the 
 lefTee, if ejected, was by writ of covenant againft the leflbr, 
 to recover the term (if in being) and damages, in cafe the 
 oufter was committed by the leflbr himfelf ; or, if the term 
 was expired, or the oufter was committed by a ftranger, 
 claiming by an elder title, then to recover damages only a . 
 
 3. A PROMISE is in the nature of a verbal covenant, and 
 wants nothing but the folemnity of writing and fealing to 
 make it abfolutely the fame. If therefore it be to do any ex- 
 plicit act, it is an exprefs contract, as much as any covenant j 
 and the breach of it is an equal injury. The remedy indeed 
 is not exactly the fame : fmce, inftead of an action of cove- 
 nant, there only lies an action upon the cafe, for what is 
 called the affumpftt or undertaking of the defendant ; the 
 failure of performing which is the wrong or injury done to 
 the plaintiff, the damages .whereof a jury are to eftimate and 
 fettle. As if a builder promifes, undertakes, or aflurries to 
 Caius, that he will build and cover his houfe within a time 
 limited, and fails to do it ; Caius has an action on the cafe 
 againft the builder, for this breach of his exprefs promife, 
 undertaking, or ajjumpftt; and fhall recover a pecuniary fa- 
 tisfadtion for the injury fuftained by fuch delay. So alib in 
 the cafe before-mentioned, of a debt by fimple contract, if the 
 debtor promifes to pay it and does not, this breach of promife 
 entitles the creditor to his action on the cafe, inftead of being 
 driven to an action o( debt b . Thus likewife a promiiFory 
 jiote, or note of hand not under feal, to pay money at a day 
 certain, is an exprefs affumpfit ; and the payee at common; 
 law, or by cuftom and act of parliament the indorfee c , 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, enacts, that in the five follow- 
 
 a Bro. Abr. t. avetiJnt. 33. F. N.B. 143. c See book II. ch. 30.
 
 158 PR i VAT E BOOK III. 
 
 ing cafes no verbal promife ftiall be fufficient to ground an 
 action upon> but at the leaft fome note or memorandum of it 
 fhall 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 contract or fole 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 ajjumpfa is void. 
 
 FROM thefe exprefs contracts the tranfition is eafy to thofe 
 that are only implied by law. Which are fuch as reafon and 
 juftice dictate, and which therefore the law prefumes that 
 every man has contracted to perform ; and, upon this pre- 
 fumption, makes him anfwerable to fuch perfons, as fuffer 
 by his non-performance. 
 
 OF this nature are, firft, fuch as are necefTarily implied by 
 the fundamental conftitution of government, to which every 
 man is a contracting party. And thus it is that every perfon 
 is bound and hath virtually agreed to pay fuch particular fums 
 of money, as are charged on him by the fentence, or aflefled 
 by the interpretation, of the law. For it is a part of the 
 original contract, entered into by all mankind who partake 
 the benefits of fociety, to fubmit in all points to the muni- 
 cipal constitutions 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 contracted to difcharge. And 
 this implied agreement it is, that gives the plaintiff a right 
 to inftitute a fecond action, founded merely on the general 
 contract, 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 action. 
 So that if he hath once obtained a judgment againft another 
 for a certain fum, and neglects to take out execution there- 
 upon,
 
 Ch. 9. W R O N <3 S. 159 
 
 upon, he may afterwards bring an action of debt upon this 
 judgment d , and (hall not be put upon the proof of the ori- 
 ginal caufe of action ; but upon (hewing the judgment once 
 obtained, ftill 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 real actions 
 were more in ufe than at prefent, and damages were permitted 
 to be recovered thereon j in order to have the benefit of a 
 writ of capias to take the defendant's body in execution for 
 thofe damages, which procefs was allowable in an action of 
 debt (in confequence of the ftatute 25 Edw. III. c. 17.) but 
 not in an action real. Wherefore, fince the difufe of thofe 
 real actions, actions of debt upon judgment in perfonal fuits 
 have been pretty much difcountenanced by the courts, as 
 being generally vexatious and oppreffive, by harraffing the 
 defendant with the cofts of two actions inftead of one. 
 
 ON the fame principle it is, (of an implied original con- 
 tract to fubmit to the rules of the community, whereof we 
 are members) that a forfeiture impofed by the bye-laws and 
 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 ; 
 for which the remedy is by action of debt f . 
 
 THE fame reafon may with equal juftice be applied to all 
 penal ftatutes, that is, fuch acts of parliament whereby a for- 
 feiture is inflicted for tranfgreffing the provifions therein 
 enacted. The party offending is here bound by the funda- 
 mental contract of fociety to obey the directions of the legif- 
 lature, and pay the forfeiture incurred to fuch perfons as the 
 law requires. The ufual application of this forfeiture is 
 
 d i Roll. Abr. 600, 60 1. f 5 Rej>. 64. Hob. 179. 
 
 e Law of r.iji friui, 155. 
 
 either
 
 1 60 PRIVATE . BOOK III. 
 
 either to the party grieved, or elfe to any of the king's fub- 
 jecls in general. Of the former fort is the forfeiture inflicted 
 by the ftatute of Winchefter^ (explained and enforced by 
 feveral fubfequent ftatutes h ) 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 
 Hand excufed. But otherwife the party robbed is entitled to 
 profecute them, by a fpecial action on the cafe, for damages 
 equivalent to his lofs. And of the fame nature is the action 
 given by ftatute 9 Geo. I. c. 22. commonly called the black 
 adr, againft the inhabitants of any hundred, in order to make 
 fatisfaclion in damages to all perfons who have fuffered by 
 the offences enumerated and made felony by that act. But, 
 more ufually, thefe forfeitures created by ftatute are given at 
 large, to any common informer ; or, in other words, to any 
 fuch perfon or perfons as will fue for the fame : and hence 
 fuch actions are called popular actions, becaufe 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 profecutor; and then the fuit is called 
 a qui tarn ation, becaufe it is brought by a perfon " qui 
 " tarn pro domino rege, &c. quam pro fe ipfo in bac parte fequi- 
 " tur" If the king therefore himfelf commences this fuit, 
 he fhall have the whole forfeiture k . 'But if any one hath be- 
 gun a qui tarn, or popular, action, no other perfon can pur- 
 fue it ; and the verdict pafled upon the defendant in the firft 
 fuit is a bar to all others, and conclufive even to the king 
 
 O 
 
 himfelf. This has frequently occafioned offenders to procure 
 their own friends to begin a fuit, in order to foreftall and 
 prevent other actions : which practice is in fome meafure 
 prevented by a ftatute made in the reign of a very fharp- 
 fighted prince in penal laws; 4Hen.VII. c. 20. which enadts, 
 that no recovery, otherwife than by verdict, 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 
 
 813 Ed\v. I. c. i. See book II. ch. 29. 
 
 h 27 Eliz. c. 13. 29 Car. II. c.y. * 2 Hawk. P. C. 268. 
 8 Geo. II. c. 16. 21 Geo. II. c. 24. 
 
 the
 
 Ch, 9. WRONGS. 161 
 
 the rule of the Roman law, that if a perfon was acquitted of 
 any accufation, merely by the prevarication of the accufer, 
 a new profecution might be commenced againft him '. 
 
 A SECOND dafs, of implied contracts, are fuch as do not 
 arife from the exprefs determination of any court, or the po- 
 fitive dire6tion of any ftatute ; but from natural reafon, and 
 the juft conftru&ion of law. Which clafs extends to all 
 prefumptive undertakings or ajfumpjits ; which, though never 
 perhaps actually made, yet conftantly arife from this general 
 implication and intendment of the courts of judicature, that 
 every man hath engaged to perform what his duty or juftice 
 requires. Thus, 
 
 1. IF I employ a perfon to tranfaft any bufmefs 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 neglect to make him amends, he has a remedy for this 
 injury by bringing his aclion on the cafe upon this implied 
 affumpfit ; wherein he is at liberty to fuggeft that I promifed 
 to pay him fo much as he reafonably deferved, and then to 
 aver that his trouble was really worth fuch a particular fum, 
 which the defendant has omitted to pay. But this valuation 
 of his trouble is fubmitted to the determination of a jury ; 
 who will aflefs fuch a fum in damages as they think he really 
 merited. This is called an ajjumpjit on a quantum meruit. 
 
 2. THERE is alfo an implied affumpfit on a quantum valebat, 
 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 fhould be paid ; and an action on the cafe may be 
 brought accordingly, if the vendee refufes to pay that value. 
 
 I Ff. 47. 15. 3. 
 
 Vol. III. L 3. A THIRD
 
 PRIVATE BOOK II!. 
 
 3. A THIRD fpecies of implied affumpfits is when one has 
 had and received money belonging to another, without any 
 valuable confideration given on the receiver's part : for the 
 law conftrues this to be money had and received for the ufe 
 of the owner only ; and implies that the perfon fo receiving 
 promifed and undertook to account for it to the true pro- 
 prietor. And, if he unjuftly detains it, an action on the 
 cafe lies againft him for the breach of fuch implied promife 
 and undertaking ; and he will be made to repair the owner 
 in damages, equivalent to what he has detained in fuch vio- 
 lation of his promife. This is a very extenfive and bene- 
 ficial remedy, applicable to almoft every cafe where the de- 
 fendant has received money which ex aequo et bono he ought 
 to refund. It lies for money paid by miftake, or on a con- 
 fideration which happens to fail, or through impofition, 
 extortion, or oppreflion, or where undue advantage is taken 
 of the plaintiff's fituation m 
 
 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 action will lie on this 
 a/umpfit n . 
 
 5.,LiKEWisE, fifthly, upon a. ftated account between two 
 merchants, or other perfons, the law implies that he againft 
 whom the ballance appears has engaged to pay it to the other ; 
 though there be not any actual promife. And from this im- 
 plication it is frequent for actions on the cafe to be brought, 
 declaring that the plaintiff and defendant~had fettled their 
 accounts together, infimul computaffent^ (which gives name 
 to this fpecies of affiimpfit) and that the defendant engaged 
 to pay the plaintiff the ballance, but has fince neglected to 
 do it. But if no account has been made up, then the legal 
 remedy is by bringing a writ of account, de computo j com- 
 manding the defendant to render a juft account to the plaintiff, 
 
 a' 4 Burr. 1012. F. N. B. Il6. 
 
 - Carth. 446* 2 Keb. 99. 
 
 or
 
 Ch. 9. WRONG s. 163 
 
 or fhew the court good caufe to the contrary. In this action, 
 if the plaintiff fucceeds, there are two judgments : the firft 
 is, that the defendant do account (quod computet) before 
 auditors appointed by the court ; and, when fuch account is 
 finifhed, then the fecond judgment is, that he do pay the 
 plaintiff fo much as he is found in arrear. . This action, by 
 the old common law p , lay only againft the parties themfelves, 
 and not their executors j becaufe matters of account refted 
 folely in their own knowlege. But this defect, after many 
 fruitlefs attempts in parliament, was at laft remedied by fta- 
 tute 4 Ann. c. 16. which gives an action of account againft 
 the executors and adminiftrators. Rut however it is found 
 by experience, that the moft ready and effectual 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 action upon the implied affumpfit to 
 pay the ballance. 
 
 6. THE laft clafs of contracts, implied by reafon and con- 
 ftruction of law, arifes upon this fuppofition, that every one 
 who undertakes any office, employment, truft, or duty, con- 
 tracts with thofe who. employ or entruft him, to perform it 
 with integrity, diligence, and (kill. 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 inftances will fully illuftrate this 
 matter. If an officer of the public is guilty of neglect of 
 duty, or a palpable breach of it, of non-feafance or of mif- 
 feafance ; as, if the fheriff does not execute a writ fent to 
 him, or if he wilfully makes a falfe return thereof; in both 
 thefe cafes the party aggrieved mall have an action on the cafe, 
 for damages to be aflefTed by a jury 1. If a (heriff or gaoler 
 fuffers a prifoner, who is taken upon mefne proccfs (that 
 
 P Co. Litt. 90. 1 Moor. 431. n Rep. 99. 
 
 L 2 is,
 
 164 PRIVATE Boo Kill. 
 
 is, during the pendency of a fuit) to efcape, he is liable to. 
 an aclion on the cafe*. But if, after judgment, a gaoler or 
 a flieriff permits a debtor to efcape, who is charged in execu- 
 tion for a certain fum ; the debt immediately becomes his 
 own, and he is compellable by action of debt^ being for a 
 fum liquidated and afcertained, to fatisfy the creditor his 
 whole demand : which doctrine is grounded s on the equity 
 of the ftatutes of Weftm. 2. 13 Edw. I. c. u. and i Ric. II. 
 c. 12. An advocate or attorney that betray the caufe of their 
 client, or, being retained, neglect to appear at the trial, by 
 which the caufe mifcarries, are liable to an action on the 
 cafe, for a reparation to their injured client f. There is alfo 
 in law always an implied contract with a common inn-keeper, 
 to fecure his gueft's goods in his inn j with a common car- 
 rier or bargemafter, to be anfwerable for the goods he carries ; 
 with a common farrier, that he fhoes a horfewell, without 
 laming him ; with a common taylor, or other workman, that 
 he performs his bufmefs in a workmanlike manner: in which 
 if they fail, an action on the cafe lies to recover damages for 
 fuch breach of their general undertaking 1 . But if I employ 
 a perfon to tranfadl any of thefe concerns, whofe common 
 profeflion and bufmefs it is not, the law implies no fuch ge- 
 neral undertaking; but, in order to charge him with damages, 
 a fpecial 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 that way ; and upon this univerfal ajjumpfit an 
 action on the cafe will lie againft him for damages, if he 
 without good reafon refufes to admit a traveller u . If any 
 one cheats me with falfe cards or dice, or by falfe weights and 
 .ueafures, or by felling me one commodity for another, an 
 udtion on the cafe alfo lies againft him for damages, upon 
 the contract which the law always implies, that every tranf- 
 uction is fair and honeft v . In contracts likewife for fales, 
 it is conftantly underftood that the feller undertakes that the 
 
 r Cro. El'z. 625. Comb. 69. t nRqj. 54. i Saund. 324. 
 
 11 Bro. Abi . t. parliament. 19. a Inft. i Ventr. 333. 
 
 3*z. v 10 Rep. 56. 
 : Finch, L. 188. 
 
 commodity
 
 Ch. 9. WRONGS. 165 
 
 commodity he fells is his own ; and if it proves otherwife 
 an action on the cafe lies againft him, to exa6l damages for 
 this deceit. In contracts 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 
 contract 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 v/hich an action on the cafe will lie to recover damages w . 
 The warranty muft be upon the fale ; for if it be made after y 
 and not at the time of the fale, it is a void warranty* : for it is 
 then made without any confideration ; neither does the buyer 
 then take the goods upon the credit of the vendor. Alfo the 
 warranty can only reach to things in b?ing at the time of the 
 warranty made, and not to things in future : as, that a horfe 
 is found at the buying of him ; not that he will be found two 
 years hence. But if the vendor knew the goods to be un- 
 found, and hath ufed any art to difguife them y , or if they 
 are in any fhape different from what he reprefents them to be 
 to the buyer, this artifice fhall be equivalent to an exprefs 
 warranty, and the vendor is anfwerable for their goodnefs. 
 A general warranty will not extend to guard againft defects 
 that are plainly and obvioufly the object of one's fenfes, as if 
 a horfe be warranted perfect, and wants either a tail or an 
 ear, unlefs the buyer in this cafe be blind. But if cloth is 
 warranted to be of fuch a length, when it is not, there an 
 adtion on the cafe lies for damages ; for that cannot be dif- 
 cerned by fight, but only by a collateral proof, the meafuring 
 it z . Alfo if a horfe is warranted found, and he wants the 
 fight of an eye, though this feems to be the object of one's 
 fenfes, yet as the difcernment of fuch defers is frequently 
 matter of fkill, it hath been held that an action on the cafe 
 lieth, to recover damages for this impofition a . 
 
 BESIDES the fpecial action on the cafe, there is alfo a pe- 
 culiar remedy, entitled an action of deceit b , to give damages 
 
 w F. N. B. 94. 2 Finch. L. 189. 
 
 x Finch. L. 189. a $alk. 6n. 
 
 y 2 Roll. Rep. 5. b F. N. B. 95. 
 
 L 3 in
 
 1 66 PRIVATE Boo Kill. 
 
 in fome particular cafes of fraud ; and principally where one 
 man does any thiBg in the name of another, by which he is 
 deceived or injured ; as if one brings an a&ion in another's 
 name, and then fuffers a nonfuit, whereby the plaintiff be- 
 comes liable to cofts : or where one fuffers a fraudulent re- 
 covery of land or chattels to the prejudice of him that hath 
 right. It alfo lies in the cafes of warranty before-mentioned" 1 , 
 and the other injuries committed contrary to good faith and 
 honefty. But the action on the cafe, in nature of deceit t is 
 more ufually brought upon thefe occafions. 
 
 THUS much for the non-performance of contra&s exprefs 
 or implied ; which includes every poffible injury to what is 
 by far the moft confiderable fpecies of perfonal property ; viz* 
 that which confifts in action merely, and not in poffeffion. 
 Which finifhes our inquiries into fuch wrongs as may be 
 offered to perfonal property, with their feveral remedies by 
 fuit or action. 
 
 c Law of nijifriui. 29. * F. N. B. 98.
 
 Ch. 10. WRONG s. 167 
 
 CHAPTER THE TENTH. 
 OF INJURIES TO REAL PROPERTY, 
 
 AND FIRST OF DISPOSSESSION, OR 
 
 OUSTER OF THE FREEHOLD. 
 
 I COME now to confider fuch injuries as affect that fpe- 
 cies of property which the laws of England have deno- 
 minated real ; as being of a more fubftantial and permanent 
 nature, than thofe tranfitory rights of which perfonal chattels 
 are the object. 
 
 REAL injuries then, or injuries affecting real rights, are 
 principally fix; i. Oufter; 2. Trefpafs ; 3. Nufance; 
 4. Wafte j 5. Subtraction ; 6. Difturbance. 
 
 OUSTER, or difpoffeffion, is a wrong or injury that carries 
 with it the amotion of pofleflion : for thereby the wrong- 
 doer gets into the actual occupation of the land or heredita- 
 ment, and obliges him that hath a right to feek his legal 
 remedy ; in order to gain pofleffion, and damages for the in- 
 jury fuftained. And fuch oufter, or difpoffeflion, may either 
 be of the freehold, or of chattels real. Oufter of the freehold is 
 effected by one of the following methods, i. Abatement; 
 2. Intrufion; 3. Diffeifm ; 4. Difcontinuance ; 5. Deforce- 
 ment. All of which in their order, and afterwards their 
 refpective remedies, will be confidered in the prefent chapter. 
 
 I. AND, firft, an abatement is where a perfon dies feifed of 
 an inheritance, and before the heir or devifee enters, a ftranger 
 
 L 4 who
 
 \ 1 
 
 168 PRIVATE BOOK III. 
 
 who has no right makes entry, and gets pofleffion of the free- 
 hold : this entry of him is called an abatement, and he him- 
 felf is denominated an abater a . It is to be obferved that 
 this expreffion, of abating, which is derived from the French 
 and fignifies to quafh, beat down, or deftroy, is ufed by our 
 law in three fenfes. The firft, which feems to be the pri- 
 mitive fenfe, is that of abating or beating down a nufance, 
 of which we fpoke in the beginning of this book b : and in 
 a like fenfe it is ufed in ftatute Weftm. i. 3Edw. I. c. 17. 
 where mention is made of abating a caftle or fortrefs ; in 
 which cafe it clearly fignifies to pull it down, and level it 
 with the ground. The fecond fignification of abatement is 
 that of abating a writ or action, of which we fhall 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 laft fpecies of abatement is that we have now before 
 us ; which is alfo a figurative expreffion to denote that the 
 rightful pofleffion or freehold of the heir or devifee is over- 
 thrown by the rude intervention of a ftranger. 
 
 THIS abatement of a freehold is fomewhat fimilar to an 
 immediate occupancy in a ftate of nature, which is effected 
 by taking pofleffion of the land the fame inftant that the prior 
 occupant by his death relinquishes it. But this, however 
 agreeable to natural juftice, confidering man merely as an 
 individual, is diametrically oppofite to the law of fociety, and 
 particularly the law of England : which, for the prefervation 
 of public peace, hath prohibited as far as poffible all acqui- 
 fitions by mere occupancy : and hath directed that lands, on 
 the death of the prefent pofleflbr, fhould immediately veft 
 either in fome perfon, exprefsly named and appointed by the 
 deceafed, as his devifee ; or, on default of fuch appointment, 
 in fuch of his next relations as the law hath feledted and 
 pointed out as his natural reprefentative or heir. Every 
 entry therefore of a mere ftranger by way of intervention 
 between the anccftor and heir or perfon next entitled, which 
 
 a Finch. L, 195. b page 5. 
 
 keeps
 
 Ch. 10. WRONG s. 169 
 
 keeps the heir or devifee out of pofiefiion, is one of the higheft 
 injuries to the rights of real property. 
 
 2. THE fecond fpecies- of injury by oufter, or amotion 
 pf pofleiEon from the freehold, is by intrufion: 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 c . This entry and interpofition 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- 
 fimple, and, before the entry of B his heir, C enters thereon, 
 this is an abatement; but if A be tenant for life, with re- 
 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 pofieffion, 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-fimple. And in either cafe the 
 injury is equally great to him whofe poffeffion is defeated by 
 this unlawful occupancy. 
 
 3. THE third fpecies of injury by oufter, or privation of 
 the freehold, is by diffeifm. DifTeifm is a wrongful putting 
 out of him that is feifed of the freehold d . The two former 
 fpecies of injury were by a wrongful entry where the pofTeffion 
 was vacant ; but this is an attack upon him who is in aclual 
 pofleffion, and turning him out of it. Thofe were an oufter 
 from a freehold in law; this is an oufter from a freehold in. 
 deed. This may be effected either in corporeal inheritances, 
 
 Co. Lite. 277. F, N. B. 103, 104. d Co. Litt, 277. 
 
 cr
 
 170 PRIVATE BOOK III. 
 
 or incorporeal. DifTeifin, of things corporeal, as of houfes, 
 lands, &V, muft be by entry and actual difpofleffion of the 
 freehold e ; as if a man enters either by force or fraud into the 
 houfe of another, and turns, or at leaft keeps, him and his 
 fervants out of pofleflion. Difleifin of incorporeal heredita- 
 ments cannot be an actual difpofleffion ; for the fubjedl itfelf 
 is neither capable of actual bodily pofleflion, nor difpofleffion : 
 but it depends on their refpedtive 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 f men- 
 tion five methods of working a difleifm thereof: i. By en- 
 clofure; where the tenant fo enclofeth the houfe or land, that 
 the lord cannot come to diftrein thereon, or demand it: 2. By 
 fore/Idler^ or lying in wait ; when the tenant befetteth the 
 way with force and arms, or by menaces of bodily hurt af- 
 frights theleffbr 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 diftrefs at fuch time 
 when his rent is really due: 5. By denial; which is when 
 the rent being lawfully demanded is not paid. All, or any 
 of thefe circumftances work a difleifm of rent; that is, they 
 wrongfully put the owner out of the only pofieffion, of which 
 the fubject matter is capable, namely, the receipt of it. But 
 all thefe difleifms, of hereditaments incorporeal, are only fo 
 at the election and choice of the party injured ; if, for the 
 fake of more eafily trying the right, he is pleafed to fuppofe 
 himfelf difTeifed &. Otherwife, as there can be no actual 
 difpofleffion, he cannot be compulfively difleifed of any in- 
 corporeal hereditament. 
 
 AND fo too, even in corporeal hereditaments, a man may 
 frequently fuppofe himfelf to be difleifed, when he is not fo 
 in fact, for the fake of entitling himfelf to the more eafy and 
 commodious remedy of an afliie of novel dijjeifm, (which will 
 be explained in the fequel of this chapter) inftead of being 
 
 e Co. Litt. 181. g Litt. . 588, 589. 
 
 f Finth. L. 165, 166. Litt, . 237, V, 
 
 driven
 
 Ch. 10. WRONGS. 171 
 
 driven to the more tedious procefs of a writ of entry h . The 
 true injury of compulfive difleifin feems to be that of difpof- 
 feffing the tenant, and fubftituting onefelf to be the tenant of 
 the lord in his ftead 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 feiiln or inveftiture, feems 
 to have been antiently neceflary. But when in procefs of 
 time the feodal form of alienations wore off, and the lord was 
 no longer the inftrument of giving actual feifm, it is probable 
 that the lord's acceptance of rent or fervice, from him who 
 had difpofTefled another, might conftitute a complete difTeifin. 
 Afterwards, no regard was had to the lord's concurrence, 
 but the difpofleflbr himfelf was confidered as the folc difieifor : 
 and this wrong was then allowed to be remedied by entry 
 only, without any form of law, as againft the difleifor him- 
 felf; but required a legal procefs againft his heir or alienee. 
 And when the remedy byaflifewas introduced under Henry II, 
 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^ intrujion, and 
 dljjeifm^ 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 tenant was at firft lawful, but the wrong confifts in 
 the detaining of pofleflion afterwards. 
 
 4. SUCH is, fourthly, the injury of difeontinuance ; which 
 happens when he who hath an eftate-tail, maketh a larger 
 cftate 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 tail j all 
 
 h Hengh.parv, c. 7. 4 Burr, no, i Finch, L. 190, 
 
 which
 
 172 PRIVATE BOOK III. 
 
 which are beyond his power to make, for that by the com- 
 mon law extends no farther than to make a leafe for his own 
 life : here the entry of the feoffee is lawful during the life of 
 the feoffor ; but if he retains the poffeffion after the death of 
 the feoffor, it is an injury, which is termed a difcontinuance ; 
 the 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 the heir in tail, nor they in remainder or 
 reverfion expectant on the determination of the eftate-tail, 
 can enter on and pofiefs the lands fo alienated. Alfo, by the 
 common law, the alienation of an hufband who was feifed in 
 the right of his wife, worked a difcontinuance of the wife's 
 eftate : till the ftatute 32 Hen. VIII. c. 28. provided, that 
 no acl by the hufband alone mould work a difcontinuance of, 
 or prejudice, the inheritance or freehold of the wife; but 
 that, after his death, (he or her heirs may enter on the lands 
 in queftion. Formerly alfo, if an alienation was made by a 
 fole corporation, as a bimop or dean, without confent of the 
 chapter, this was a difcontinuance J. 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 initio, and therefore at prefent no difcontinuance can 
 be thereby occasioned. 
 
 5. THE fifth and laft fpecies of injuries by oufter or pri- 
 vation of the freehold, where the entry of the prefent tenant 
 or poflefibr was originally lawful, but his detainer is now 
 unlawful, is that by deforcement. This, in it's mpft exten- 
 flve fenfe, is nomen generalijfimum ; a much larger and more 
 comprehenfive exprefiion than any of the former: it then 
 fignifying the holding of any lands or tenements to which 
 another perfon hath a right k . 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 pofleffion. But, as contra- 
 diftinguifhed from the former, it is only fuch a detainer of the 
 
 j F. N. B. 194. k Co. Litt. 277. 
 
 freehold.,
 
 Ch. 10. WRONG s. 173 
 
 freehold, from him that hath the right of property, but never 
 had any pofleffion under that 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 dffeftum fanguinis, 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 intrufion^ for it 
 vefts not in him in remainder or reverfion ; nor is it diffelfin y 
 for the lord was never feifed ; nor does it at all bear the na- 
 ture of any fpecies of difcontinuance ; but, being neither of 
 thefe four, it is therefore a deforcement 1 . If a man marries a 
 woman, and during the coverture is feifed of lands, and 
 alienes, and dies ; is difieifed, and dies ; or dies in pofleffion; 
 and the alienee, difleifor, or heir, enters on the tenements 
 and doth not affign the widow her dower ; this is alfo a de- 
 forcement to the widow, by withholding lands to which (he 
 hath a right m . 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 pofleffion, holds over, and refufes 
 to deliver the pofleffion to him in remainder or reverfion, this 
 is likewife a deforcement n . 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 will not allow it to deveft the woman's right of poflef- 
 fion; though, his entry being lawful, it does deveft the 
 actual pofleffion, and thereby becomes a deforcement . De- 
 forcements may alfo be grounded on thedifability of the party 
 deforced : as if an infant do make an alienation of his lands, 
 and the alienee enters and keeps pofleffion ; now, as the alie- 
 nation is voidable, this pofleffion as againft the infant (or, 
 in cafe of his deceafe, as againft his heir) is after avoidance 
 wrongful, and therefore a deforcement p . The fame happens, 
 
 l F. N. B. 143. 205, 6, 7. 
 
 m Ibid. 8. 147. F. N. B. 205. 
 
 Fiach. L. 163, F. N, B. 201. P Finch. L. 264. F. N. 8.192. 
 
 when
 
 PRIVATE BOOK III. 
 
 when one of nonfane memory alienes his lands or tenements, 
 and the alienee enters and holds pofleffion, this may alfo be 
 a deforcement q . Another fpecies of deforcement is, where 
 two perfons have the fame title to land, and one of them en- 
 ters and keeps pofleffion againft the other : as where the an- 
 ceftor dies feifed of an eftate in fee-fimple, whioh defcends 
 to two fitters as coparceners, and one of them enters before 
 the other, and will not fuffer her fifter to enter and enjoy her 
 moiety ; this is alfo a deforcement r . 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 neglects or refufes fo to do, but continues poflef- 
 fion againft him j this pofleffion, being wrongful, is a de- 
 forcement s . And hence, in levying a fine of lands, the perfon, 
 againft whom the fictitious action is brought upon a fuppofed 
 breach of covenant, is called the deforciant. Thus, laftly, 
 keeping a man by any means out of a freehold office is a de- 
 forcement : and, indeed, from all thefe inftances it fully 
 appears, that whatever injury, (withholding the pofleffion 
 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 oujler being 
 thus afcertained and defined, the next confideration is the 
 remedy : which is, univerfally, the rejl'itution or delivery of 
 pojjejfion 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 flightly touched in the firft chapter of the prefent book l , 
 of entry by the legal owner, when another perfon, who hath 
 no right, hath previoufly taken pofleffion of lands or tene- 
 ments. In this cafe the party entitled may make a formal, 
 but peaceable, entry thereon, declaring that thereby he takes 
 pofleffion ; which notorious act of ownerfhip is equivalent to 
 a feodal inveftiture by the lord v : or he may enter on .any 
 
 q Finch. Ibid. F. N. B. 102. t See pag. 5. 
 
 r Finch. L. 293, 294.. F, N. B. 197. * See book II, ch, 14, pag. 109. 
 
 s F. N. S. 146. 
 
 part
 
 Ch. ID. WRONGS. 175 
 
 part of it in the fame county, declaring it to be in the name 
 of the whole u : but if it lies in different counties he muft 
 make different. entries; for the notoriety of fuch entry or 
 claim to the fares or freeholders of Weftmorland, is not any 
 notoriety to the pares or freeholders of SufTex. Alfo if there 
 be two difleifors, the party difTeifed muft make his entry on 
 loth; or if ffc/difleifor has conveyed the lands with livery to 
 two diftint feoffees, entry muft be made on both w : for as 
 their feifm is diftinft, fo alfo muft be the at 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 a year and a day only x . Arid therefore this 
 claim, if it be repeated once in the fpace of every year and 
 day, (which is called continual claim] has the fame effect with, 
 and in all refpe&s amounts to, a legal entry ?. Such an entry 
 gives a man feifin z , or puts him into immediate pofleflion that 
 hath right of entry on the eftate, and thereby makes him 
 complete owner, and capable of conveying it from himfelf 
 by either defcent or purchafe. 
 
 THIS remedy by entry takes place in three only of the five 
 fpecies of oufter, viz. abatement, intrufion, and difTeifm * : 
 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 a&ion : for herein the original entry being lawful, and 
 thereby an apparent right of poffeffion being gained, the law 
 will not fuffer that right to be overthrown by the mere adl or 
 entry of the claimant. Yet a man may enter b on his tenant 
 by fufferance : for fuch tenant hath no freehold, but only a 
 bare pofTeflion; 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 c fuch tenant to 
 
 u Lift. .417. * Co. Lift. 15. 
 
 w Co. Litt. 252. * Ibid. 237. 
 
 x Litt. .421. b See book II. pag. t$c, 
 
 Y Hid. . 419. 433, c Co, Litt, 57, 
 
 have
 
 176 PRIVATE BOOK III. 
 
 have gained a tortious freehold, he is then remediable by 
 writ of entry, ad terminum qul praeteriit. 
 
 ON the other hand, in cafe of abatement, intrufion, or dif- 
 feifin, where entries are generally lawful, this right of entry 
 may be tolled, that is, taken away, by defcent. Defcents, 
 which take away entries d , 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 ieeble the right of the anceftor might be, the 
 entry of any other perfon who claims title to the freehold is 
 taken away} and he cannot recover pofleflion againft the heir 
 by this fummary method, but is driven to his action to gain 
 a legal feifin of the eftate. And this, firft, becaufe the heir 
 comes to the eftate by act of law, and not by his own a&j 
 the law therefore protects his title, and will not fuffer his 
 pofleffion to be devefted, 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 is 
 ever indulgent to heirs, takes away the entry of fuch claimant 
 as neglected to enter on the anceftor, who was well able to 
 defend his title ; and leaves the claimant only the remedy of 
 a formal aHon againft the heir e . Thirdly, this was admi- 
 rably 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 difpoffefled of 
 the lands whereof he died feifed. And, laftly, it is agreeable 
 to the didates of reafon and the general principles of law. 
 
 FOR, in every complete title f to lands, there are two 
 things neceflary ; the pofleflion or feifin, and the right or 
 property therein s ; or, as it is exprefled in Fleta, juris et 
 feifmae conjunttio h . Now, if the pofleflion be fevered from 
 the property, if A has the jus proprietors, and B by fome un- 
 lawful means has gained poflefiion of the lands, this is an 
 injury to A j for which the law gives a remedy, by putting 
 
 d Litt. . 385413. S Mirror, c. 2. . 27. 
 
 e Co. Litt. 237. b /. 3. f. 15. . 5. 
 
 f See book II. ch. 13. 
 
 him
 
 Ch. 10. WRONG s. 177 
 
 him in pofieffion, 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 pofleflion by either 
 fraud or force, hath only a bare or naked pojjejjion, without 
 any fhadow of right ; A therefore, who hath both the right 
 of property and the right of pofleflion, 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 a bart 
 pofleflion, but alfo an apparent jus pojfij/ionis, or right of pof- 
 feflion. For the law prefumes, that the pofleflion, which is 
 tranfmitted from the anceftor to the heir, is a rightful pof- 
 feffion, until the contrary be fhewn : and therefore the mere 
 entry of A is not allowed to evil the heir of B ; but A is 
 driven to his action at law to remove the pofleflion of the 
 heir, though his entry alone would have difpoflefled the an- 
 ceftor. 
 
 So that in general it appears, that no man can recover pof- 
 feflion by mere entry on lands, which another hath by defcent. 
 Yet this rule hath fome exceptions *, wherein thofe reafons 
 ceafe, upon which the general do&rine is grounded ; efpe- 
 cially if the claimant were under any legal difabilities, during 
 the life of the anceftor, either of infancy^ coverture, impri- 
 fonment, infanity, or being out of the realm : in all which 
 cafes there is no neglect or /aches in the claimant, and there- 
 fore no defcent (hall bar, or take away his entry k . And this 
 title of taking away entries by defcent, is ftill farther nar- 
 rowed by the ftatute 32 Hen. VIII. c. 33. which enads, that 
 if any perfon difleifes or turns another out of pofleflion, no 
 defcent to the heir of the difleifor fhall take away the entry of 
 him that has right to the land, unlefs the difleifor had 
 peaceable pofleflion five years next after the difTeifin. But the 
 ftatute extendeth not to any feoffee or donee of the difleifor, 
 mediate or immediate [ : becaufe fuch a one by the genuine 
 feodal conftitutions always came into the tenure folemnly 
 
 i See the particular cafes mentioned Itna of tenures. 
 by Littleton, b. 3. ch. 6. the principles k Co. Litt. 246. 
 f whkh are well explained in Gilberts l Kid. 256. 
 
 VOL, III. M
 
 178 PRIVATE BOOK III. 
 
 and with the lord's concurrence, by actual delivery of feifin 
 or open and public inveftiture. On the other hand, it is 
 enacted by the ftatute of limitations, 21 Jac. I. c. 16. that no 
 entry {hall be made by any man upon lands, unlefs within 
 twenty years after his right fhall accrue. And by ftatute 
 4 & 5 Ann. c. 16. no entry fhall be of force to fatisfy the 
 faid ftatute of limitations, or to avoid a fine levied of lands, 
 unlefs an action be thereupon commenced within one year 
 after, and profecuted with effect. 
 
 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 m . For, as in the former 
 cafes the law will not fuppofe, without proof, that the an- 
 ceftor of him in pofleflion acquired the eftate by wrong ; and 
 therefore, after five years peaceable pofleflion, and a defcent 
 caft, will not fuffer the pofleflion of the heir to be difturbed 
 by mere entry without adtion ; 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 action at 
 law, and permits not his entry to be lawful. Befides, the 
 alienee, who came into pofleflion 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 of pofleflion ; 
 which is not allowed to be devefted by the mere entry of the 
 claimant, but continues in force till a better right be fhewn, 
 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 alie- 
 nations to be voidable only and not abfolutely void. 
 
 IN cafe of deforcements alfo, where the deforciant had ori- 
 ginally a lawful pofleflion of the land, but now detains it 
 wrongfully, he (till continues to have the prefumptive prima 
 
 n Co. Litt, 325.
 
 Ch. 10; WRONG s; 179 
 
 facie evidence of right ; that is, pofleflion lawfully gained. 
 Which pofleflion fhall not be overturned by the mere entry 
 of another ; but only by the demandant's fhewing a better 
 right in a courfe of law. 
 
 THIS remedy by entry muft be purfued, according to fta- 
 tute 5 Ric. II. ft. i. c. 8. in a peaceable and eafy manner ; 
 and not with force or ftrong hand. For, if one turns or 
 keeps another out of pofleflion forcibly, this is an injury of 
 both a civil and a criminal nature. The civil is remedied by 
 immediate reftitution ; which puts the antient poffeflbr in 
 ftatu quo : the criminal injury, or public wrong, by breach 
 of the king's peace, is punifhed by fine to the king. For by 
 the ftatute 8 Hen. VI. c. 9. upon complaint made to any 
 jufticeof the peace, of a forcible entry, with ftrong hand, on 
 lands or tenements ; or a forcible detainer after a peaceable 
 entry ; he fhall try the truth of the complaint by jury, and, 
 upon force found, fhall reftore the pofleflion 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 declared to be ab- 
 folutely void) the offender fhall forfeit, for the force found, 
 treble damages to the party grieved, and make fine and ran- 
 fom to the king. But this does not extend to fuch as endea- 
 vour to keep pofleflion manuforti^ after three years peaceable 
 enjovment of either themfelves, their anceftors, or thofe 
 under whom they claim ; by a fubfequent claufe of the fame 
 ftatute, enforced by ftatute 31 Eliz. c. u. 
 
 II. THUS far of remedies, where the tenant or occupier 
 of the land hath gained only a mere poffcjjlon^ and no apparent 
 fhadow of right. Next follow another clafs, which are in 
 ufe where the title of the tenant or occupier is advanced one 
 ftep nearer to perfetion ; fo that he hath in him not only a 
 bare pofleflion, which may be deftroyed by entry, but alfo 
 an apparent right of poffeffion, which cannot be removed but 
 by courfe of law : in the procefs of which muft be fhewn, 
 that though he hath at prefent pofleflion and therefore hath. 
 
 M 2 the-
 
 i8o PRIVATE Boo Kill. 
 
 the prefumptive right, yet there is a right of pofleffion, fu- 
 perior to his, refiding in him who brings the adtion. 
 
 THESE remedies are either by a writ of entry , or an afftfe .- 
 which are actions merely pojjeffory ; ferving only to regain 
 that pofieffion, 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 meddle not with the right of 
 property : only reftoring the demandant to that ftate or fitua- 
 tion, in which he was (or by law ought to have been) be- 
 fore the difpofleffion committed. But this without any pre- 
 judice to the right of ownership : for, if the difpofleflbr has 
 any legal claim, he may afterwards exert it, notwithftanding 
 a recovery had againft him in thefe pofleflbry actions. Only 
 the law will not fufFer him to be his own judge, and either 
 take or maintain pofleffion of the lands, until he hath re- 
 covered them by legal means n : rather prefuming the right 
 to have accompanied the antient feifin, than to refide in one 
 who had no fuch evidence in his favour. 
 
 i. THE firft of thefe pofleflbry remedies is by writ of entry; 
 which is that which difproves the title of the tenant or poflef- 
 for, by ihewing the unlawful means by which he entered or 
 continues pofleffion . The writ is directed to the fherifF, 
 requiring him to " command the tenant of the land that he 
 " render (in Latin, praecipe quod reddat] to the demandant the 
 " premifes in queftion, which he claims to be his right and 
 ** inheritance ; and into which, as he faith, the faid tenant 
 " hath not entry but by a difleifin, intrufion, or the like, 
 " made to the faid demandant, within the time limited by 
 " law : or that upon refufal he do appear in court on fuch a 
 " day, to fliew wherefore he hath not done it- D ." This is 
 the original procefs, the praecipe^ upon which all the reft of 
 the fuit is grounded ; and from hence it appears, that what 
 is required of the tenant is in the alternative, either to deliver 
 
 n Mirr. c, 4. . 24. r See Vol. II. append. N'.V. . i. 
 
 '' Finch. L. z6i. 
 
 feifin
 
 Ch. io. WRONGS. 181 
 
 feifin of the lands, or to mew caufe why he will not. Which 
 caiife may be either a denial of the far,, of having entered 
 by fuch means as are fuggefted, or a juftification of his entry 
 by reafon of title in himfelf, or in thofe under whom he 
 makes claim : and hereupon the pofleflion of the land is 
 awarded to him who produces the cleareft right to poflefs it. 
 
 IN our antient books we find frequent mention of the de- 
 grees within which writs of entry are brought. If they be 
 brought againft the party himfelf that did the wrong, then 
 they only charge the tenant himfelf with the injury ; " non 
 " habuit ingrejjum niji per intrufor.em 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 circumftance mutt be alleged in the writ, for the action 
 muft always be brought againft the tenant of the land ; and 
 the defect of his pofleflbry title, whether arifmg from his own 
 wrong or that of thofe under whom he claims, muft be fet 
 forth. One fuch alienation or defcent makes the fuft de- 
 gree, which is called the per, becaufe then the- form of a 
 writ of entry is this ; that the tenant had no right of entry, 
 but by the original wrongdoer, who alienated the land, or 
 from whom it defcended, to him : " non habuit ingrejfnm t 
 " nifi per Gnilielmum^ qui fe in illud intrufit^ et illud tcnenii 
 " dimifit T ." A fecond alienation or defcent makes another 
 degree called the per and cut ; becaufe the form of a writ of 
 entry, in that cafe, is, that the tenant had no title to enter, 
 but by or under a prior alienee, to whom the intruder detnifed 
 it ; * c non habuit ingreffiim^ nifi per Ricardum, cui Gulliel/nus 
 " illud dimifit, qul fe in illud intruftt 3 ." Thefe degrees thus 
 ftate 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 paft, there lay no writ 
 of entry at the common law. For, as it was provided, for the 
 
 1 Finch. L. 262. Booth indeed (of the per and cui. But the difference is 
 
 real adions. 172.) makes the firft degree immaterial, 
 
 to con lift in the original wrong done, r Booth. iSi. 
 
 the fecond in the /XT, and the third in s Finch. L, 263. F. N. B. 203,2.04. 
 
 M 3 quietnefs
 
 182 PRIVATE BOOK III. 
 
 quietnefs of men's inheritances, that no one, even though 
 he had the true right of poffeilion, fhould enter upon him 
 who had the apparent right by defcent or otherwife, but he 
 was driven to his writ of entry to gain poflefHon ; fo, after 
 more than two defcents or two conveyances were pafled, the 
 demandant, even though he had the right both of poflefiion 
 and property, was not allowed this poj/ej/ory action ; but was 
 driven to his writ ofright, a long and final remedy, to punifti 
 his neglect 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 fhould be allowed without any mention of degrees at all. 
 And accordingly a new writ has been framed, called a writ 
 of entry in the poft, 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 tenant 
 had no legal entry unlefs after^ or fubfequent to, the oufter 
 or injury done by the original difpofleflbr ; " non babuit in- 
 " grejfum ni/i poft intrufionem quam Guillelmus in illud fecit ;" 
 and rightly concluding, that if the original title was 
 wrongful, all claims derived from thence muft participate of 
 the fame wrong. Upon the latter of thefe writs it is (the 
 writ of entry fur diffeifin in the poji) that the form of our 
 common recoveries of landed eftates is ufually grounded ; 
 which, we may remember, were obferved in the preceding 
 volume * to be fictitious actions, brought againft the tenant 
 of the freehold (ufually called the tenant to the praedpe^ or 
 writ of entry) in which by collufion the demandant recovers 
 the land. 
 
 THIS remedial inflrument, 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 
 aligning any dower to the widow within the time limited by 
 
 t 2 Lift. 153. u Bock II. ch. a:. 
 
 law 5
 
 Ch. 10. WRONGS, 183 
 
 law : for which flic has her remedy by writ of dower^ undt 
 nikil babet. But if me be deforced of part only of her 
 dower, fhe cannot then fay that nihil habet ; and therefore (he 
 may have recourfe to another action, by writ of right of 
 dower : which is a more general remedy, extending either to 
 part or the whole ; and is (with regard to her claim) of the 
 fame nature as the grand writ of right, whereof we {hall pre- 
 fently fpeak, is with regard to claims in fee-fimple x . On 
 the other hand, if the heir (being within age) or his guar- 
 dian, aflign her more than fhe 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- 
 feffion, when wrongfully withheld from the owner. It were 
 therefore endlefs to recount all the feveral divifions of writs of 
 entry, which the different eircumftances of the refpecTive de- 
 mandants may require, and which are furnifhed by the laws 
 of England z : being plainly and clearly chalked out in that 
 molt antient and highly venerable collection of legal forms, 
 the reglftrum omnium brevium^ or regifter of fuch writs as are 
 fuable out of the king's courts, upon which Fitzherbert's 
 natura brevium is a comment ; and in which every man who 
 
 w F. N. B. 147. 
 
 * Kid. 16. 
 
 y F. N. B. 148. Finch. L. 314. 
 Stat. Weftm. 2. 13 Edw. I. c. 7. 
 
 z See Brafton. 1. 4. tr. 7. c. 6. 
 .4. Britton. c. 114. fol. 264. The 
 moft ufual were, i. The writs of entry 
 fur difje'ipn and of intrufim ; (F. N. B. 
 191.203.) which arebroughtto remedy 
 ekher of thofe fpecies of oufter. t , The 
 writs of dumfuit infra aetatcm, and dunt 
 fmt non compos mentis : (Kid. 192. 202.) 
 which lie for a perfon of full age, or one 
 who hath recovered his underftanding, 
 after having (when under age or infane) 
 aliened his lands j or for the heirs of 
 iuch alienor. 3. The writs of cut in 
 vita and cut ante 'ivortium: (Ibid.iyi, 
 204.) for a woman, when a widow cr 
 divorced, whofe hufband during the co- 
 verture (cut in -vita fua, vel cut ante di- 
 vwliam, ipfa contredicere nonfotuit) hath 
 
 aliened her eftate. 4. The writ ad cem- 
 munem legan : (Ibid. 207.) for the rever- 
 fioner, after the alienation and death of 
 the particular tenant for life. 5. The 
 writs in cafu pra-vifo and in conjimili cafu : 
 (Kid, 20 9, 206.) which lay not adcom- 
 muntm legem, but are given by ftat. Gloc. 
 6 Edw. I. c. 7. and Weftm. 2. 13 Edw. 
 I. c. 24. for the reverfioner after the. ali- 
 enation, but during the life, of the te- 
 nant in dower or other tenant for life, 
 6. The writ ad tcrmlnum qui praeteriit . 
 (Kid. 201.) for the reverfioner, when 
 the poffeffioii rs withheld by the leffee 
 or a ftranger, after the determination 
 of a leafe for years. 7. The writ 
 caufa matrimomi prattocuti : (Ibid, 205.) 
 for a woman who giveth land to a 
 man in fee or for life, to the intent 
 that he may marry her, and he doth 
 not. And the like in cafe of other 
 deforcements. 
 
 M
 
 184 PRIVATE BOOK III. 
 
 is injured will be fure to find a method of relief, exa&ly 
 adapted to his own cafe, defcribed in the compafs of a few 
 lines, and yet without the omi/fion of any material circum- 
 ftance. So that the wife and equitable provifion of the fta- 
 tute Weftm. 2. 13 Edw, I. e. 24. for framing new writs 
 when wanted a , is almoft rendered ufelefs by the very great 
 perfection 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 
 leaft very rarely, to uie it. 
 
 IN the times of our Saxon anceftors, the right of poflef- 
 fion feems only to have been recoverable by writ of entry b ; 
 which was then ufually brought in the county court. And 
 it is to be obferved, that the proceedings in thefe actions 
 were not then fo tedious, when the courts were held, and 
 procefs ifiued every three weeks, as after the conqueft, when 
 all caufes were drawn into the king's courts, and procefs 
 iflued from term to term ; which was found exceeding dila- 
 tory, being at leaft 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 ajjtfe^ of which we are next to fpeak. 
 
 2. THE writ of ajjlfe is faid to have been invented by 
 Glanvil, chief juftice to Henry the fecond c ; and, if fo, it 
 feems to owe it's introduction 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 affifes ; and the afllfes them- 
 felves (particularly thofe of mart d'anceftor and novel dtffeijin) 
 were clearly pointed out and defcribed d . As a writ of entry 
 
 a See pag. 51. vivut et tnortuus ; et, ftcut rccogmtunfu- 
 
 b Gilb. Ten. 42. em, ita baaedibus (jus ref.ituant. . 10. 
 
 e Mirror, c. 2. .2<;. "J-.tjiitiarii damlni r^;s fac'jant fieri reicg- 
 
 d . 5- Si d-.-tKinus fedi negat laendi- mtwnem de dijjalfir.is fafi'n fupcr affifam, 
 
 htJefurtffiJai/a>ataijafJtmfeuIl t jtiflitia- a ttmfore quo dcm'inus rex *ver.:t in An- 
 
 ni dom*;:i rr^ssjjelast indtftri rectgmti- gilam froxinte fcji facem fafiaat inter 
 
 6i;tm per xii k^.l.s Lomines, gualemfaifi- ipfum ft rtgtm fiilum juum, ^Spcltn. Ccd, 
 
 vain defunct us inde bebuit, die qua fuit 330.^ 
 
 is
 
 Ch. 10. WRONGS. 185 
 
 is a real action, Which difproves the title of the tenant by 
 (hewing the unlawful commencement of his pofleffion ; fo an 
 aflife is a real action, which proves the title of the demandant, 
 merely by fhewing his, or his ancestor's, poflefiion e : and 
 thefe two remedies are in all other refpects 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 eftablifhed by either 
 of thefe poflefTory actions, it can never be difturbed by the 
 fame antagonift in any other of them. The word, ajjlfe^ is 
 derived by fir Edward Coke f from the Latin affideo^ to fit 
 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 jurifdiction, which fum- 
 mons this jury together by a commiffion of affife, or ad ajfifas 
 capiendas-, and hence the judicial aflemblies held by the 
 king's commiffion in every county, as well to take thefe writs 
 of affife, as to try caufes at mfiprius^ are termed in common 
 fpeech the affifes. By another fomewhat fimilar figure, the 
 name of affife is alfo applied to this action, for recovering 
 pofleffion of lands : for the reafon, faith Littleton ? , why 
 fuch writs at the beginning were called affifes, was, for that 
 in thefe writs the merifF is ordered to fummon a jury, or 
 affife j which is not exprefled in any other original writ h . 
 
 THIS remedy, by writ of affife, is only applicable to two 
 fpecies of injury by oufter, viz. abatement , and a recent or 
 novel dijfeijln. If the abatement happened upon the death of 
 the demandant's father or mother, brother or fitter, uncle or 
 aunt, nephew or niece, the remedy is by an affife of mart 
 d* anceftor^ or the death of one's anceftor : and the general 
 purport of this writ is to direct the fheriff to fummon a jury 
 or affife, to view the land in queftion, and to recognize whe- 
 ther fuch anceftor were feifed thereof on the day of his 
 death, and whether the demandant be the next heir '. And, 
 in a fliort time after, the judges ufually come down by the 
 king's commiffion to take the recognition of affife ; when, if 
 
 Finch. L. 284. h Co. Litt. 1 59. 
 
 f i Inft. 153. i p. N. B. 195, Finch. L. 290. 
 
 g . 234. 
 
 thefe
 
 i86 PRIVATE BOOK III. 
 
 thefe points are found in the affirmative, the law immediately 
 transfers the pofleffion from the tenant to the demandant. If 
 the abatement happened on the death of one's grandfather or 
 grandmother, then an affife of mort d' ancejlor no longer lies, 
 but a writ of ayle, or de avo ; if on the death of the great 
 grandfather or great grandmother, then a writ of befayle, or 
 de proavo ; but if it mounts one degree higher, to the trefayle 
 or grandfather's grandfather, or if the abatement happened 
 upon the death of any collateral relation, other than thofe 
 before-mentioned, the writ is called a writ of cofinage, or de 
 confanguineo k . And the fame points {hall be inquired of in 
 all thefe actions anceftrel, as in an aflife of mort d' ancejlor ; 
 they being of the very fame nature ' : though they differ in 
 this point of form, that thefe anceftrel writs (like all other writs 
 of praecipe] exprefsly aflert the demandant's title, (viz. the 
 feifm of the anceftor at his death, and his own right of inhe- 
 ritance) the aflife aflerts nothing directly, but only prays an 
 inquiry whether thofe points be fo ra . There is alfo another 
 anceftrel writ, denominated a nuper obiit, to eftablifh an equal 
 divifion of the land in queftion, where on the death of an an- 
 ceftor, who has feveral heirs, one enters and holds the others out 
 of pofleffion n . But a man is not allowed to have any of thefe 
 pofleflbry actions for an abatement confequent on the death 
 of any collateral relation, beyond the fourth degree ; though 
 in the lineal afcent he may proceed ad infinitum p . For the 
 law will not pay any regard to the pofleffion of a collateral 
 relation, fo very diftant as hardly to be any at all. 
 
 IT was always held to be law S that where lands were de- 
 vifable in a man's laft will by the cuftom of the place, there 
 an affife of mort d' ancejlor did not lie. For, where lands 
 were fo devifable, the right of pofleffion could never be deter- 
 mined by a procefs, which inquired only of thefe two points, 
 the feifm of the anceftor, and the heirftiip of the demandant. 
 And hence it might be reafonable to conclude, that when the 
 
 fc Finch. L. 266, 267. e Hale on F. N. B. 221. 
 
 1 Stat. Wertm. 2. 13 Edw. I. c. 2O. P Fitzh. A!"-, tit. co/i/tage. 15. 
 
 m 2 Inft. 399. 1 Brafton. /. 4. de cjffij'. rr.srti s anieccf- 
 
 n F. N.B. 197. Finch, L, 293. font, c. 13. . 3. F. N. B. 196. 
 
 ftatute
 
 Ch. 10, WRONGS. 187 
 
 ftatute of wills, 32 Hen. VIII. c. i. made all focage lands 
 devifable, an affife of mort d' ancefior no longer could be 
 brought of lands held in focage r ; and that now, fmce the 
 ftatute 12 Car. II. c. 24. which converts all tenures, a few 
 only excepted, into free and common focage, it fhould fol- 
 low, that no affife of mort d' ancejlor can be brought of any 
 lands in the kingdom ; but, in cafe of abatements, recourfe 
 muft be properly had to the more antient writs of entry. 
 
 AN affife of novel (or recent) difleifm is an action of the 
 fame nature with the aflife of mort d' ancejlor before-men- 
 tioned, in that herein the demandant's pofleflion muft be 
 (hewn. But it differs confiderably in other points : particu- 
 larly in that it recites a complaint by the demandant of the 
 difleifm committed, in terms of direct averment; whereupon 
 the fheriff is commanded to refeife the land and all the chattels 
 thereon, and keep the fame in his cuftody till the arrival of 
 the juftices of affife ; (which in fact is now omitted s ) and in 
 the mean time to fummon a jury to view the premifes, and 
 make recognition of the aflife before the juftices '. At which 
 time the tenant may plead either the general iflue, nul tort^ nul 
 difleifm^ or any fpecial plea. And if, upon the general iflue, 
 the recognitors find an actual feifm in the demandant, and 
 his fubfequent difleifm by the prefent tenant ; he fhall have 
 judgment to recover his feifm, and damages for the injury 
 fuftained : being the only cafe in which damages were reco- 
 verable in any pofleffion action at the common law"; the 
 tenant being ufually allowed to retain the intermediate profits 
 of the land, to enable him to perform the feodal fervices. 
 
 THE procefs of aflifes in general is called, by ftatute 
 Weftm. 2. i3Edw. I. c. 24. fejiinum remedlum^ incompa- 
 rifon with that by a writ of entry ; it not admitting of many 
 dilatory pleas and proceedings, to which other real actions 
 are fubject v . Cofts and damages were annexed to many 
 other of thefe pofieflbry actions by the ftatutes of Marlberge, 
 52 Hen. III. c. 16. and of Glocefter, 6 Edw. I. c. i. And, 
 
 r See i Leon. 267. t p. N. B. 177. 
 
 s Booth. 211. Braft, 4. tr, i. c.rg. Bradon. 187. S:at. Marlf-ridg. 
 7- c, 16. 
 
 ? Booth, 262, tO
 
 i88 PRIVATE BOOK III. 
 
 to prevent frequent and vexatious difleifins, it is enacted by 
 the ftatute of Merton, 20 Hen. III. c. 3. that if a perfon 
 difleifed recover feifm of the land again by aflife of novel dif~ 
 feifm, and be again difleifed of the fame tenements by the 
 fame difleiflbr, he (hall have a writ of re-diffeifm ; and, if he 
 recover therein, the re-difTeifor fhall be imprifoned ; and, by 
 the ftatute of Marlbridge, 52 Hen. III. c. 8. fhall alfo pay 
 a fine to the king : to which the ftatute Weftm. 2. i3Edw. I. 
 c. 26. hath fuperadded double damages to the party aggrieved. 
 In like manner, by the fame ftatute of Merton, when any lands 
 or tenements are recovered by aflife of mart d' ancejlor^ or 
 ether jury, or any judgment of the court, if the party be 
 afterwards difleifed by the fame perfon againft whom judg- 
 ment was obtained, he (hall have a writ of pojl-dijjeifm againft 
 him ; which fubjedts the poft-difleifor to the fame penalties 
 as a re-difleifor. The reafon of all which, as given by fir 
 Edward Coke w , is becaufe fuch proceeding is a contempt of 
 the king's courts, and in defpite of the law ; or, as Bradton 
 more fully exprefles it *, " tain qui ita conviflus fuerit, du- 
 " pliclter delinquit contra rcgem : quia facit dijjeifmam et ro- 
 " beriam contra pacem fuam ; et etiam aufu temerario irrita 
 ** facit ea^ quae in curia domini regis rite atta funt : et propter 
 " duplex deliclum merits jujlinere dcbet poenam dupHcaiam" 
 
 IN all thefe pofiefibry actions there is a time of limitation 
 fettled, beyond which no man {hall avail himfelf of the pof- 
 feflion of himfelf or his anceftors, or take advantage of the 
 wrongful pofleflion of his adverfary. For, if he be negligent 
 for a long and unreafonable time, the law refufes afterwards 
 to lend him any affiftance, to recover the pofieflion merely ; 
 both to punifh his neglecl: (nam leges vigilantibus, non dor- 
 mientibuS) fubveniunt) 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. This 
 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, bV, of king Henry 
 
 v.- z In.1. 85, 84. * /. 4. c. 49, 
 
 the
 
 Ch. 10. WRONGS. 189 
 
 the third. But this date of limitation continued fo long un- 
 altered, that it became indeed no limitation at all : it beino- 
 above three hundred years from Henry the third's coronation 
 to the year 1540, when the prefent ftatute of limitations * 
 was made. This, inftead of limiting actions from the date 
 of a particular event, as before, which in procefs of years 
 grew abfurd, took another and more direct courfe, which 
 might endure for ever ; by limiting a certain period, as fifty 
 years for lands, and the like period 2 for cuftomary and pre- 
 fcriptive rents, fuits, and fervices (for there is no time of 
 limitation upon rents created by deed, or referved on a par- 
 ticular eftate a ) and enacting that no perfon fhould bring any 
 poflefTory action, to recover pofleflion thereof merely upon 
 the feifin, or difpoffeffion, of his anceftors, beyond fuch cer- 
 tain period. But this doth 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 j as fealty, and the like b . 
 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 propriety be called a frefh, recent, or novel dijjeifm : 
 which name fir Edward Coke informs us was originally given 
 to this proceeding, becaufe the difleifin muft have been fince 
 the laft eyre or circuit of the juftices, which happened^ once 
 in feven years, othenvife the action was gone c . And we 
 may obferve d , that the limitation, prefcribed by Henry the 
 fecond at ths firft inftitution of the affife of novel dijfeijin, 
 was from his own return into England after the peace made 
 between him and the young king his fon ; which was but 
 the year before. 
 
 WHAT has been here obferved may throw fome light on 
 the doctrine of remitter, which we {poke of in the fecond 
 
 y 32 Hen. VIII. c. 2. fubfequent writers have followed, make 
 
 * So Berthelet's original edition of the it only forty years for rents, &c, 
 
 flattie, A. D. 1540: and Cay' 3, Pick- 8 Rep. 65. 
 
 ering's and Ruffbead's editions, exa- fc Co. Litt. 115. 
 
 mined with the record. Kartell's and c i Inft. 153. Booth. 210. 
 
 other intermediate editions, with fir d See pag. 184, 
 
 Edward Coke (^ InH. 95.; and other
 
 190 PRIVATE BOOK III. 
 
 chapter of this book e ; 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 defe&ive title, and enters by virtue of that title. In 
 this cafe the law remits him to his antient and more certain 
 right, and by an equitable fiction fuppofes him to have gained 
 pofleinon in confequence, and by virtue, thereof : and this, 
 becaufe he cannot poffibly 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 
 action. 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 
 pofleffion, it little fignifies by what means fuch poflefiion fhall 
 be faid to be gained. But the wifdom of our antient law de- 
 termined nothing in vain. As the tenant's pofleffion was 
 gained by a defective title, it was liable to be overturned by 
 fhewing that defect in a writ of entry ; and then he muft 
 have been driven to his writ of right, to recover bis juft in- 
 heritance : which would have been doubly hard, becaufe, 
 during the time he was himfelf tenant, he could not eftablifh 
 his prior title by any pofleflbry aHon. 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 hadywj, etfeijinam y feparate ; 
 a good right, but a bad pofleffion : now, by the remitter, 
 he hath the moft perfect of all titles, juris et feifmae con- 
 junttionem. 
 
 III. BY thefe feveral pofleflbry remedies the right of pof- 
 feffion may be reftored to him, that is unjuftly deprived 
 thereof. But the right of poffejjion (though it carries with it 
 a ftrong prefumption) is not always conclufive evidence of 
 the right of property, which may ftill fubfift in another man. 
 For, as one man may have the poffeffion 9 and another the right 
 ofpoffejjlon t which, is recovered by thefe pofleflbry actions j fo 
 
 c See p?g. 19. 
 
 one
 
 Ch. ID. WRONGS. 191 
 
 one man may have the right ofpojjeffion^ and cannot therefore 
 be evi&ed by any pofleflbry aclion, and another may have 
 the right of property, which cannot be otherwife aflerted than 
 by the great and final remedy of a writ of right, or fuch cor- 
 refpondent writs as are in the nature of a writ of right. 
 
 THIS happens principally in four cafes : i. Upon difcon- 
 tinuance by the alienation of tenant in tail : whereby he, who 
 had the right of pofleffion, hath transferred it to the alienee; 
 and therefore his iflue, or thofe in remainder or reverfion, 
 fhall not be allowed to recover by virtue of that poffeflion, 
 which the tenant hath fo voluntarily transferred. 2. In cafe 
 of judgment given againft either party by his own default; 
 or, 3. Upon trial of the merits, in any pofTeflbry adtion : 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 poffeflion, 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 Bright, 
 is barred from thefe poffeflbry actions by length of time and 
 the ftatute of limitations before-mentioned : for an undif- 
 turbed pofleffion, 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 rio;ht itfelf, or fuch other 
 
 O * 
 
 writs, as are faid to be of the fame nature. 
 
 i. AND firft, 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 action of formedon, (fe- 
 cundum formarn doni) which is in the nature of a writ of 
 right f , and is the higheft action that tenant in tail can haves. 
 For he cannot have an abfolute writ of right, which is confined 
 only to fuch as claim in fee-fimple : and for that reafon this 
 writ of formedon was granted him by the ftatute de donis or 
 
 * Finch, L, z67 & Co. Litt. 316. 
 
 Weftm.
 
 192 PRIVATE BOOK III. 
 
 Weftm. 2. J3Edw. I. c. i. which is therefore emphati- 
 cally called bis writ of right h . This writ is diftinguifhed 
 into three fpccies ; a formedon in the defender, in the re- 
 mainder^ and in the reverter. A writ of formedon in the 
 descender lieth where a gift in tail is made, and the tenant in 
 - tail alienes the lands entailed, or is difieifed of them, and 
 dies ; in this cafe the heir in tail fhall have this writ of 
 formedon in the defcender^ to recover thefe lands fo given in 
 tail, againft him who is then the actual tenant of the free- 
 hold *. In which aclion the demandant is bound to ftate the 
 manner and form of the gift in tail, and to prove himfelf heir 
 fecundum formam doni. PL 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 iflue inherita- 
 ble, and a ftranger intrudes upon him in remainder, and keeps 
 him out of pofieflion k . In this cafe the remainder-man fhall 
 have his writ of 'formedon in the remainder^ wherein the whole 
 form of the gift is dated, and the happening of the event 
 upon which the remainder depended. This writ is not given 
 in exprefs 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 aclion 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 (hall have this writ 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 ifTue 
 upon which his reveriion takes place 1 . This lay at common 
 law, before the ftatute de donis^ if the donee aliened before 
 he had performed the condition of the gift, by having iflue, 
 and afterwards died without any m . The time of limitation in 
 zfirmedon by ftatute 21 Jac. I. c. 16. is twenty years; within 
 
 h F. N. B 255. l Ji>\d. 219. 8 Rep. S3. 
 
 i Ibid. 211, 212. Finch. L. 168. 
 
 k Ibid. 217. 
 
 which
 
 Ch. 10. WRONG s. 
 
 which fpace of time after his title accrues, the demandant 
 
 muft bring his ac-tion, or elfe is for ever barred. 
 
 2. IN the fecond cafe; if the owners of a particular eflate, 
 as for life, in dower, by the curtefy, or in fee-tail, are barred 
 of the right of pofleflion by a recovery had againft them, 
 through their default or non-appearance in a pofleflbry action, 
 they were abfolutely without any remedy at the common law : 
 as a writ of right does not lie for any but fuch as claim to be 
 tenants of the fee-fimple. Therefore the ftatute 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, 
 called a quod ei deforceat t which, though not ftri&ly a writ 
 of right, fo far partakes of the nature of one, as that it will 
 reftore the right to him, who has been thus unwarily de- 
 forced by his own default 11 . But in cafe the recovery were 
 not had by his own default, but upon defence in the inferior 
 pofieflbfy adlion, 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 j . 
 
 3, 4. THIRDLY, in cafe the right of pofleflion be barred 
 by a recovery upon the merits in a pofleflbry adiion, or laft- 
 ly, by the ftatute of limitations, a claimant in fee-flmple may 
 have a mere writ of right ; which is in it's nature the higheft 
 writ in the law k , and lieth only of an eftate in fee-fimple, 
 and not for him who hath a lefs eftate. This writ lies con- 
 currently with all other real actions, in which an eftate of fee-, 
 fimple may be recovered ; and it alfo lies after them, being 
 as it were an appeal to the mere right, when judgment- hath 
 been had as to the pofleflion in an inferior pofleflbry ac- 
 
 b F.N.B. 155. k F. N.B. i< 
 
 See book II. ch. 21, 
 
 VOL. III. N twn.
 
 PRIVATE BOO;K III. 
 
 tion ! . But though a writ of right may be brought, where 
 the demandant is entitled to the pofleflion, yet it rarely is ad- 
 vifeable 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 actions. 
 But, in cafe the right of pofleflion be loft by length of time, 
 or by judgment againft the true owner in one of thefe 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- 
 comes all obftacles, and clears all objections that may have 
 arifen to cloud and obfcure the title. And, after iflue once 
 joined in a writ of right, the judgment is abfolutely final ; 
 fo that a recovery had in this action may be pleaded in bar 
 of any other 'claim or demand ra . 
 
 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 of a writ of right, becaufe 
 their procefs and proceedings domoftly (though not entirely) 
 agree with the writ of right : but in fome of them the fee- 
 fimpleis not demanded; and in others not land, but fome in- 
 corporeal hereditament. Some of thefe have been already 
 mentioned, as the writ of right of dower, of 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 mail have a writ of ef- 
 cbeat n , which is in the nature of a writ of right . And if one 
 of two or more coparceners deforces the other, by ufurping 
 the fole pofleflion, the party aggrieved mall have a writ of 
 right,* dc rationabili parte p : which may be grounded on the 
 
 1 F. N. B. i. 5. Booth. 135. 
 
 m Hid. 6. Co. Litt. 158. t F. N. B. c. 
 
 n F. N. B. 143, 
 
 fcifiii
 
 Ch. 10. WRONGS. 195 
 
 feifin of the anceftor at any time during his life ; whereas in 
 a nuper obiit (which is a poffeflbry remedy 1) he muft be feifed 
 at the time of his death. But, waving thefe and other mi- 
 nute diftin&ions, let us now return to the general writ of 
 right. 
 
 THIS writ ought to be firft brought in the court-baron r 
 of the lord, of whom the lands are holden ; and theh it is 
 open or patent : but if he holds no court, or hath waived his 
 right, remifit curlam fuam, it may be brought in the king's 
 courts by writ of praedfe originally ' ; and then it is a writ 
 of right clofe ', being directed 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 ofpraecipe in capitf 
 (the improper ufe of which, as well as of the former praecipt 
 quia dominus remifit ciiriam., fo as to ouft the lord of his jurif- 
 di(5lion, is reftrained by magna carta*} and, being directed to 
 the meriff and originally returnable in the king's court, is alfo 
 a writ of right clofe *. There is likewife a little writ of right 
 clofe, fecundum confuetudinem manerii^ which lies for the king's 
 tenants in antient demefne ^, and others of a fimilar nature *, 
 to try the right of their lands and tenements in the court 
 of the lord exclufively a . But the writ of right patent itfelf 
 may alfo at any time be removed into the county court, by 
 writ of tolt b , and from thence into the king's courts by writ 
 of pone c or recordari facias^ at the fuggeftion of either party 
 that there is a delay or defect of juftice a . 
 
 IN the progrefs of this a6tion% the demandant muft allege 
 fome feifin of the lands and tenements in himfelf, or elfe in, 
 fome perfon under whom he claims, and then derive the right 
 
 <j See pag. 186. a Brafton. /. i. c. n. 7.4. tr. i. 
 
 r Append. N. I. . i. c. 9. & tr. 3. c. 13. . 9. Old Tenur. 
 
 F.N.B. a. Finch. L. 313. t. tntir. en fccage. Old N. B. r. garde. 
 
 t Booth. 91. & t.bnefede retlaclaus. F.N.B. II. 
 
 v Append. N. I. . 4. b Append. N. I. . 2. 
 
 w < 24- c III,. $. 3. 
 
 x F.N.B. 5. d F.N.B. 3,4. 
 
 X See book II. ch. 6. e Append. N. I. . 5. 
 
 z Kitchen, tit. cspyhold, 
 
 N 2 from
 
 196 PRIVATE BOOK III. 
 
 from the perfon fo feifed to himfelf; to which the tenant 
 may anfwer by denying the demandant's right, and averring 
 that he has more right to hold the lands than the demandant 
 has to demand them : and, this right of the tenant being 
 fhewn, it then puts the demandant upon the proof of his 
 title : in which if he fails, or if the tenant hath fhewn 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 feifm could be 
 alleged by the demandant, but from the time of Henry the 
 firft f ; by the ftatute of Merton, 20 Hen. III. c. 8. from 
 the time of Henry the fecond ; 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 fhall be within fixty years. So that the pofleffion of 
 lands in fee-flmple uninterruptedly, for threefcore years, is 
 at prefent a fufficient title againft all the world j and can- 
 not be impeached by any dormant claim whatfoever. 
 
 I HAVE now gone through the feveral fpecies of injury by 
 oufter and difpolTeflion 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 
 reafon 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 connection of thofe disjointed parts, which ftill form a 
 confiderable branch of the modern law ; fuch as the doctrine 
 of entries and remitter, the levying of fines, and the fufFer- 
 ing of common recoveries. Neither indeed is any confidera- 
 ble part of that, which I have fele&ed in this chapter from 
 among the venerable monuments of our anceftors, fo abfo- 
 
 f Co. Liu. 114. 
 
 lutely
 
 Ch. io. WRONGS. 197 
 
 lately antiquated as to be out of force p , though they are cer- 
 tainly out of uje: there being, it muft be owned, but a very 
 few inftances for more than a century paftof profecuting any 
 real action for land by writ of entry t ajfife, formedon^ writ of 
 right) or otherwife. The forms are indeed preferved in the 
 practice of common recoveries: but they are forms, and no- 
 thing elfe ; for which the very clerks that pafs them are fel- 
 dom capable to affign the reafon. But the title of lands is 
 now ufually tried upon actions of ejeftment or trefpafe.
 
 PRIVATE BOOK III. 
 
 CHAPTER THE ELEVENTH. 
 
 OF DISPOSSESSION, OR OUSTER, 
 OF CHATTELS REAL. 
 
 HAVING in the preceding chapter confidered with 
 fome attention the feveral fpecies of injury by difpof- 
 fefilon or oufter of fat freehold, together with the regular and 
 well-conne&ed fcheme of remedies by a&ions real, which are 
 given to the fubjecl by the common law, either to recover the 
 pofleflion only, or elfe to recover at once the pofleflion, and 
 alfo to eftablifh the right of property ; the method which I 
 there marked out leads me next to confider injuries by oufter, 
 or difpofleflion, of chattels real ; that is to fay, by amoving the 
 pofleflion of the tenant either from an eftate by flat ute- mer- 
 chant, ftatute-ftaple, or elegit j or from an eftate for years. 
 
 I. OUSTER, or amotion of pofleflion, from eftates held by 
 either ftatute or elegit ^ is only liable to happen by a fpecies of 
 difleifin, 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, the owner {hall have the fame reme- 
 dy as for an injury to a freehold ; viz. by afufe of novel dif- 
 [eifin*. But this depends upon the feveral ftatutes, which 
 
 a F. N. B. 178. 
 
 create
 
 Ch. ii. WRONGS. 199 
 
 create thefe refpe&ive interefts b , and which exprefsly provide 
 and allow this remedy in cafe of difpofTeflion. Upon which 
 account it is that fir Edward Coke obferves c , that thefe 
 tenants are faid to hold their eftates ut liberum tenementum^ 
 until their debts be paid : becaufe by the ftatutes they {hall 
 have an affife, as tenants of the freehold fhall have ; and in 
 that refpect they have the fimilitude of a freehold d . 
 
 II. Asforoufter, or amotion of poffeflion, from an eftate 
 for years j this happens only by a like kind of difTeifin, 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 fituation of the wrongdoer : the writ 
 of ejetlione firmae\ which lies againft any one, the leflbr, re- 
 verfioner, remainder-man, or any ftranger, who is hiinfelf 
 the wrongdoer and has committed the injury complained of: 
 and the writ of quare ejecit infra terwinum; which lies not 
 againft the wrongdoer or ejector himfelf, but his feoffee or 
 other perfon claiming under him. Thefe are mixed actions, 
 fomewhat between real and perfonal ; for therein are two 
 things recovered, as well reftitution of the term of years, as 
 damages for the oufter or wrong. 
 
 I. A WRIT then of ejeEllone firmae^ or action of trefpafs in 
 ejettment, lieth where lands or tenements are let for a term of 
 years ; and afterwards the leflbr, reverfioner, remainder-man, 
 or any ftranger, doth ejecl: or ouft the leflee of his term 6 . In 
 this cafe he fhall have this writ of ejeRion to call the defen- 
 dant to anfwer for entering on the lands fo demifed to the 
 plaintiff for a term that is not yet expired, and ejecting him f . 
 And by this writ the plaintiff fhall recover back his term, or 
 the remainder of it, with damages. 
 
 & Stat. Weftm. 2. 13 Edw. I. c. 18. < See book II. ch. 10. 
 Siat. a'e Tnercatoribus, 27 Edw. III. C. 9. e F. t>. B. 22O. 
 
 c i Lift. 43. f See appendix, N. IF. . r. 
 
 N 4 SINCE
 
 200 PRIVATE BOOK III. 
 
 SINCE the difufeof real actions, this mixed proceeding is 
 become the common method of trying the title to lands or 
 tenements. It may not therefore be improper to delineate, 
 with fome degree of minutenefs, it's hiftory, the manner of 
 it's procefs, and the principles whereon it is grounded; 
 
 WE have before feen s, that the writ of covenant, for breach 
 of the contract contained in the leafe for years, was antiently 
 the only fpecific remedy for recovering againft the leflbr a 
 term from which he had ejected his leflee, together with da- 
 mages for the oufter. But if the leflee was ejected by a ft ran- 
 ger, claiming under a title fuperior h 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 J ) though the leflee 
 might ftill maintain an action of covenant againft the leflbr, 
 for non-performance of his contract or leafe, yet he could 
 not by any means recover the term itfelf. If the oufter was 
 committed by a mere ftranger, without any title to the land, 
 the leflbr might indeed by a real action recover pofleflion of the 
 freehold, but the leflee had no other remedy againft the ejec- 
 tor but in damages, by a writ of ejeftione firmae, for the tref- 
 pafs committed in ejecting him from his farm k . But after- 
 wards, when the courts of equity began to oblige the ejector 
 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 juftice ; and, in the profccution of a writ 
 of ejectment, introduced a fpecies of remedy not warranted 
 by the original writ nor prayed by the declaration (which go 
 
 % Seepag. 156. terme: quod iota curia concfffit. Et per 
 
 * F. N. B. 145. Belknap, lacomen ley ef., ku borne eft oufte 
 
 i See book II. ch. 9. defon terme par efiranger, il cmtra ejefli- 
 
 k P. 6. Ric. II. Ejeflior.e frmae neft cnefrmae verfus cefty que Ivy oufte j et_fil 
 
 que un afilon de trefpafs en fen nature, ft feif ct.'fteparfen lejjor, brief e de covenant 
 
 le plaintiff ne recover a fun tern:e que eft a et Ji par lejj'ee ou grantee de reverfion 
 
 venir, nient plus que tn tr 'fpafs bwr.t re- bnefe de cwenant verfui fan lejjor, et 
 
 sovira damages pur trtfpafs nicnt fait, n:es courtsra efpecla! count, &c. (FitK.air 
 
 afej f er j mei ii ccrrvient a futr per action t. ejefi.Jsrm. 2.J See Braft. /. 4. tr. I. 
 
 dt covenant al comen law a rccawrer Jon c. 36, 
 
 only
 
 Ch. ii. WRONGS. 201 
 
 only for damages merely, and are filent as to any restitution) 
 viz. a judgment to recover the term, and a writ of poflefliort 
 thereupon '. This method feems to have been fettled as early 
 as the reign of Edward I V m : though it hath been faid n 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, whereby this 
 end is effected, we muft recollect that the remedy by eject- 
 ment is in it's original an action brought by one who hath 
 a leafe for years, to repair the injury done him by difpoflef- 
 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 pofleflion 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^ (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 pofleflion, 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 pofleflion 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 pofleflion of the premifes. This 
 leflee is to ftay upon the land, till the prior tenant, or he who 
 had the previous pofleflion, enters thereon afrefh and oufts 
 him ; or till fome other perfon (either by accident or by 
 agreement beforehand) comes upon the land, and turns him 
 
 1 See append. N. II. $. 4. propefa. felt arrere, donques tout ;n damages. (Bro, 
 
 m 7 Edtv. IV. 6. Per Fairfax ; ft Air. i. quare ejeclt infra tsrmlnum. 6.) 
 
 borne port ejefiione Jtrmae, It plaintiff rt- n F. N. B. 220. 
 
 ccfvtraffn terme qui eft arerc, Jibien come i Ch. Rep, append. 39. 
 
 in quare ejccit infra termir.um j tt, ft nul 
 
 out
 
 2O2 PRIVATE BOOK III. 
 
 out or ejects him. For this injury the leflee is entitled to his 
 action of ejectment againft the tenant, or this cafual ejeftor* 
 whichever it was that oufted him, to recover back his term 
 and damages. But where this action is brought againft fuch 
 a cafual ejector as is before mentioned, and not againft the 
 very tenant in poffeflion, the court will not fuffer the tenant 
 to lofe his pofleflion without any opportunity to defend it. 
 Wherefore it is a ftanding rule, that no plaintiff fhall pro- 
 ceed in ejectment to recover lands againft a cafual ejector, 
 without notice given to the tenant in pofleflion (if any there 
 be) and making him a defendant if he pleafes. And, in 
 order to maintain the action, the plaintiff muft, in cafe of 
 any defence, make out four points before the court j viz. title* 
 leafe* entry* and oujler. Firft, he muft fhew a good title in 
 hisleflbr, which brings the matter of right entirely before the 
 court j then, that the leflbr, being feifed or poffefled by 
 virtue of fuch title, did make him the leafe for the prefent 
 term ; thirdly, that he, the leflee or plaintiff, did enter or 
 take pofleflion in confequence of fuch leafe ; and then, 
 laftly, that the defendant oujled or ejected him. Whereupon 
 he fhall have judgment to recover his term and damages ; 
 and fhall, in confequence, have a writ of poffejfion, which 
 the fheriff is to execute by delivering him the undifturbed 
 and peaceable pofleflion of his term. 
 
 THIS is the regular method of bringing an action of eject- 
 ment, in which the title of the leflbr comes collaterally and 
 incidentally before the court, in order to fhew the injury done 
 to the leflee by this oufter. This method muft be ftill con- 
 tinued in due form and ftridtnefs, fave only as to the notice 
 to the tenant, whenever the pofleflion is vacant, or there is 
 no actual 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, and oujler* a new 
 and more eafy method of trying titles by writ of ejectment, 
 where there is any actual 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 j fo called during the exile of king Charles the 
 
 fecond
 
 Ch. ii. WRONGS. 203 
 
 fccond. This new method entirely depends upon a ftring of 
 legal fictions : no actual leafe is made, no actual entry by 
 the plaintiff, no actual oufter by the defendant ; but all are 
 merely ideal, for the fole purpofe of trying the title. To this 
 end, in the proceedings P 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 has no exiftence, as is frequently 
 though unwarrantably practifed q : it is alfo ftated that Smith, 
 the leffee, entered ; and that the defendant William Stiles, 
 who is called the cafual ejeflor^ oufted him ; for which oufter 
 he brings this action. As foon as this action is brought, and 
 the complaint fully ftated in the declaration r , Stiles, the 
 cafual ejector, or defendant, fends a written notice to the 
 tenant in poffeflion of the lands, as George Saunders, in- 
 forming him of the action 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 fhall make no defence ; and therefore advifing 
 the tenant to appear in court and defend his own title : other- 
 wife he, the cafual ejector, will fuffer judgment to be had 
 againft him j and thereby the actual tenant Saunders will in- 
 evitably be turned out of poffeflion *. On receipt of this 
 friendly caution, if the tenant in poffeflion does not within a 
 limited time apply to the court to be admitted a defendant in 
 the ftead of Stiles, he is fuppofed to have no right at all ; 
 and, upon judgment being had againft Stiles the cafual 
 ejector, Saunders the real tenant will be turned out of 
 poffeffion by the meriff. 
 
 BUT, if the tenant in pofieffion applies to be made a de- 
 fendant, it is allowed him upon this condition ; that he enter 
 into a rule of court r to confefs, at the trial of the caufe, three 
 of the four requifites for the maintenance of the plaintiff's 
 action ; viz. the leafe of Rogers the leftbr, the entry of Smith 
 
 P See appendix, N. II. . I, 2. s Ibid. 
 
 I 6 Mcd. 309. t Ibid. . 3. 
 
 r Append. N. II. ,2. | 
 
 the
 
 204 P R i v A T E BOOK III. 
 
 the plaintifF, and his oufter by Saunders himfelf, now made 
 the defendant inftead of Stiles : which requifites as they are 
 wholly fi&itious, fhould the defendant put the plaintifF to 
 prove, he muft of courfe be nonfuited for want of evidence; 
 but by fuch ftipulated confeffion of leafe, entry ^ and oufter^ the 
 trial will now ftand upon the merits of the title only. 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 Smith (the plaintifF, on 
 the demife of Rogers, (the leflbr) againft Saunders, the new- 
 defendant, And therein the leflbr of the plaintifF is bound 
 to make out a clear title, otherwife his fictitious lefTee cannot 
 obtain judgment to have pofleflion of the land for the term 
 fuppofed to be granted. But, if the leflbr makes out his title 
 in a fatisfadlory manner, then judgment and a writ of pof- 
 feffion fliall go for Richard Smith the nominal plaintifF, who 
 by this trial has proved the right of John Rogers his fup- 
 pofed lefTor. Yet, to prevent fraudulent recoveries of the 
 pofleffion, by collufion with the tenant of the land, all te- 
 nants are obliged by ftatute u Geo. II. c. 19. on pain of 
 forfeiting three years rent, to give notice to their landlords, 
 when ferved with any declaration in ejectment : and any 
 landlord may by leave of the court be made a co-defendant to 
 the a&ion j which indeed he had a right to demand, long 
 before the provifion of this ftatute u : in like manner as (pre- 
 vious to the ftatute of Weftm. 2. c. 3.) if in a real action the 
 tenant of the freehold made default, the remainder-man or 
 reverfioner had a right to come in and defend the pofleffion ; 
 left, if judgment were had againft the tenant ; the eftate of 
 thofe behind fhould be turned to a naked right w . But if the 
 new defendant fails to appear at the trial, and to confefs leafe, 
 entry, and oufter, the plaintifF Smith muft indeed be there 
 nonfuited, for want of proving thofe requifites'; but judgment 
 will in the end be entered againft the cafual ejector Stiles ; 
 for the condition on which Saunders was admitted a defen- 
 dant is broken, and therefore the plaintifF is put again in the 
 
 7 Mod. 70. Silk. 257. w Brafton. /, 5. c. 10. . 14. 
 
 fame
 
 Ch. n. WRONGS. 205 
 
 fame fituation a,s if he never had appeared at all ; the confe- 
 quence of which (we have feen) would have been, that 
 judgment would have been entered for the plaintiff, and the 
 (heriff, by virtue of a writ for that purpofe, would have 
 turned out Saunders, and delivered pofleflion to Smith. The 
 fame procefs therefore as would have been had, provided no 
 conditional rule had been ever made, muft now be purfued as 
 foon as the condition is broken. But execution {hall be 
 frayed, if any landlord after the default of his tenant applies 
 to be made a defendant, and enters into the ufual rule to 
 confefs leafe, entry, and oufter x . 
 
 THE damages recovered in thefe actions, though formerly 
 their only intent, are now ufually (fince the title has been 
 confidered as the principal queftion) very fmall and inade- 
 quate ; amounting commonly to one (hilling or fome other 
 trivial fum. In order therefore to complete the remedy, 
 when the pofleflion has been long detained from him that has 
 right, an action of trefpafs alfo lies, after a recovery in eject- 
 ment, to recover the mefne profits which the tenant in pof- 
 feflion has wrongfully received. Which action may be brought 
 in the name of either the nominal plaintiff in the ejectment, 
 or his leflbr, again ft the tenant in pofleflion : whether he be 
 made party to the ejectment, or fuffers judgment to go 
 by default y . 
 
 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 j a method which is now univerfally adopt- 
 ed in aimoft every caie. It is founded on the fame principle 
 as the antient writs of aflife, being calculated to try the mere 
 foffejjory title to an eftate ; and hath fucceeded to thofe real 
 actions, as being infinitely more convenient for attaining the 
 end of juftice : bccaufe the form of the proceeding being en- 
 tirely fictitious, it is wholly in the pow<-r of the court to direct 
 the application of that fiction, fo as to prevent fraud and chi- 
 cane, and evifcerate the very truth of the title. The writ of 
 ejectment arid it's nominal parties (as was refolved by all the 
 
 x Stat. U Gco. II. r. ro. r 4 Burr. 668. 
 
 judges}
 
 206 PRIVATE BOOK III. 
 
 judges 1 ) are " judicially to be confidered as the fictitious 
 " form of an action, really brought by the leflbr of the plain- 
 " tiff againft the tenant in pofleflion : invented, under the 
 * c controll and power of the court, for the advancement of 
 " juftice in many refpedts ; and to force the parties to go to 
 " trial on the merits, without being intangled in the nicety 
 " of pleadings on either fide." 
 
 B u T 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 fact be made, no entry {hall be fuppofed by any 
 fiction of the parties. Therefore an ejectment will not lie of 
 an advowfon, a rent, a common or other incorporeal heredita- 
 ment a : except for tithes in the hands of lay appropriates, by 
 the exprefs purview of ftatute 32 Hen. VIII. c. 7. which 
 doctrine hath fmce been extended by analogy to tithes in the 
 hands of the clergy b : nor will it lie in fuch cafes, where the 
 entry of him that hath right is taken away by defcent, dif- 
 continuance, twenty years difpoflefiion, or otherwife. 
 
 THI s action of ejectment is however rendered a very eafy 
 and expeditious remedy to landlords whofe tenants are in ar- 
 rere, by ftatute 4 Geo. II. c. 28. which enacts, that every 
 landlord, who hath by his leafe a right of re-entry in cafe of 
 non-payment of rent, when half a year's rent is due, and no 
 fufficient diftrefs is to be had, may ferve a declaration in eject- 
 ment on his tenant, or fix the fame upon fome notorious part 
 of the premifes, which {hall be valid, without any formal 
 re-entry or previous demand of rent. And a recovery in fuch 
 ejectment fhall be final and conclufive, both in law and 
 equity, unlefs the rent and all cofts be paid or tendered 
 within fix calendar months afterwards. 
 
 2. THE writ of quare- ejecit infra termlnum lieth, by the an- 
 tient law, where the wrongdoer or ejector is not himfelf in 
 
 z Mich. 31 Geo. II. 4 Burr. 668. Stra. 54. 
 
 a Bro\vnl. 129. CK>, Car. 492, k Cro. Car. 301 . a Lord Raym. 789, 
 
 poffeffion
 
 CH. u; w R o N c s. 207 
 
 pofleffion of the lands, but another who claims under him. 
 As where a man leafeth lands to another for years, and, after, 
 the leflbr or reverfioner entereth, and maketh a feoffment in 
 fee, or for life, of the fame lands to a ftranger : now the 
 leflee cannot bring a writ of ejeft'tonefirmae or ejectment againft 
 the feoffee; becaufe he did not eject him, but the reverfioner : 
 neither can he have any fuch action to recover his term againft 
 the reverfioner, who did ouft him ; becaufe he is not now in 
 pofleflion. 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 c . And the 
 action is brought againft the feoffee for deforcing, or keeping 
 out, the original leflee during the continuance of his term : 
 and herein, as in the ejectment, the plaintiff fhall recover fo 
 much of the term as remains, and alfo damages for that por- 
 tion of it, whereof he has been unjuftly deprived. But fince 
 the introduction of fictitious oufters, whereby the title may 
 be tried againft any tenant in pofleffion (by what means foever 
 he acquired it) this action is fallen into difufe. 
 
 F.N, B. 19?.
 
 PRIVATE SOOK III. 
 
 CHAPTER THE TWELFTH. 
 OF TRESPASS. 
 
 IN the two preceding chapters we have confidered fuch 
 injuries to real property, as confifted in an oufter, or 
 amotion of the pofleflion. Thofe which remain to be 
 difcufied are fuch as may be offered to a man's real property 
 without any amotion from it. 
 
 THE fecond fpecies therefore of real injuries, or wrongs 
 that affect a man's lands, tenements, or hereditaments, is that 
 of trefpafs. Trefpafs, in it's largeft, and moft extenfive fenfe, 
 fignifies any tranfgreflion 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 action of trefpafs vi et armis in aflault and battery will lie : 
 taking or detaining a man's goods are refpedtively trefpafles ; 
 for which an action of trefpafs vi et armis, or on the cafe in 
 trover and converfion, is given by the law : fo alfo non-per- 
 formance of promifes or undertakings ig a trefpafs, upon 
 which an action of trefpafs on the cafe in affumpftt is ground- 
 ed : and, in general, any misfeafance, or act of one man 
 whereby another is injurioufly treated or damnified, is a 
 tranfgreffion, or trefpafs in it's largeft fenfe ; for which we 
 have already feen % that, whenever the act Ltfelf is directly 
 and immediately injurious to the perfon or property of another, 
 
 a Se pag. 12.3. 
 
 and
 
 Ch. 12. WRONG s. 209 
 
 and therefore neceflarily accompanied with fome force, an 
 action of uefpafs vi et armis will lie; but, if the injury is 
 only confequential, a fpecial action of trefpafs on the cafe may 
 be brought. 
 
 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, however inconfiderable, to his real property. 
 For the right of meum and tuum, or property, in lands being 
 once eftablimed, it follows as a neceffary confequence, that 
 this right muft be exclufive ; that is, that the owner may re- 
 tain to rrimfelf the fole ufe and occupation of his foil : every 
 entry therefore thereon without the owner's leave, and efpe- 
 cially if contrary to his exprefs order, is a trefpafs or rranf- 
 grenlon. The Roman laws feem to have made a direct pro- 
 hibition necciTary, in order to conftitutethis injury : " qiti ali- 
 " enum fundum ingreditur^ poteft a domino, fi is praeviderit^ 
 " firoktoeri ne ingrediatur* ." But the law of England, juftly 
 confidering that much inconvenience may happen to the 
 owner, before he has an opportunity to forbid the entry, has 
 carried the point much farther, and has treated every entry 
 upon another's lands, (unlefs by the owner's leave, or in 
 fome very particular cafes) as an injury or wrong, for fatis- 
 faHon of which an action of trefpafs will lie; but determines 
 the quantum of that fatisfaction, by confidering how far the 
 offence was wilful or inadvertent, and by eftimating the va- 
 lue of the actual damage fuftained. 
 
 EVERY unwarrantable entry on another's foil the law en- 
 titles a trefpafs by breaking bis clofe ; the words of the writ of 
 trefpafs commanding the defendant to {hew caufe, quare clau- 
 fum qutrenth fregit. For every man's land is in the eye of the 
 law inclofed and fet apart from his neighbour's : and that 
 cither by a vifible and material fence, as one field is divided 
 from another by a hedge ; or, by an ideal invifible boundary, 
 
 b Ir.ft. 2. I. 12. 
 
 VOL. III. O cxifting
 
 210 PRIVATE BOOK III; 
 
 exifting only in the contemplation of law, as when one mail's 
 land adjoins to another's in the fame field. And every fuch 
 entry or breach of a man's clofe carries neceflarily along with 
 it fome damage or other : for, if no other fpecial lofs can be 
 affigned, yet ftill the words of the writ itfelf fpecify one ge- 
 neral damage, viz. the treading down and bruifing his 
 herbage c . 
 
 ONE muft have a property (either abfolute or temporary) 
 in the foil, and actual pofleffion by entry, to be able to main- 
 tain an action of trefpafs : or at leaft, it is requifite that the 
 party have a leafe and pofleffion of the vefture and herbage of 
 the land d . Thus if a meadow be divided annually among 
 the parifhioners by lot, then, after each perfon's feveral por- 
 tion is allotted, they may be refpectively capable of maintain- 
 ing an action for the breach of their feveral clofes e ; for they 
 have an exclufive intereft and freehold therein for the time. 
 But before entry and actual pofleffion, one cannot maintain 
 an action of trefpafs, though he hath the freehold in law f . 
 And therefore an heir before entry cannot have this action 
 againft an abater ; though a difleifee might have it againft a 
 difleifor, for the injury done by the difleifm itfelf, at which 
 time the plaintiff was feifed of the land : but he cannot have 
 it for any act done after the difleifm, until he hath gained 
 pofleffion by re-entry, and then he may well maintain it for 
 the intermediate damage done j for after his re-entry the law, 
 by a kind of jus pojltiminii, fuppofes the freehold to have all 
 along continued in him g . Neither, by the common law, 
 in cafe of an intrufion or deforcement, could the party kept 
 put of pofleffion fue the wrongdoer by a mode of redrefs, 
 which was calculated merely for injuries committed againft 
 the land while in the pojjejjion of the owner. But by the fta- 
 tute 6 Ann. c. 18. if a guardian or truftee for any infant, a 
 hufband feifed jure uxoris, or a perfon having any eftate or 
 intereft determinable upon a life or lives, mall after the deter- 
 
 c F. N". B. 87,88. * 2 Roll. Abr. 553. 
 
 * Dyer, 285. 2 Ryll. Abr, 549, g 1 1 Rep. 5. 
 
 p Cra. Eliz. 421. 
 
 ruination
 
 Ch. 12. WRONGS. 211 
 
 mination of their refpective interefts, hold over and continue 
 in pofleflion of the lands or tenements, they are now adjudg- 
 ed to be trefpaflbrs ; and the reverfioner or remainder-man 
 may once in every year, by motion to the court of chancery, 
 procure the cejluy que vie to be produced by the tenant of the 
 land, or may enter thereon in cafe of his refufal or wilful 
 neglect. And, by the ftatutes of 4 Geo. II. c. 28. and 
 II Geo. II. c. 19. in cafe after the determination of any 
 term of life, lives, or years, any perfon fhall wilfully hold 
 over the fame, the leflbr is entitled to recover by action of 
 debt, either a rent of double the annual value of the premifes, 
 in cafe he himfelf hath demanded and given notice in writing 
 to deliver the pofitflion ; or elfe double the ufual rent, in 
 cafe the notice of quitting proceeds from any tenant having 
 power to determine his leafe, and he afterwards neglects to 
 carry it into due execution. 
 
 A MAN is anfwerable for not only his own trefpafs, but 
 that of his cattle alfo : for if by his negligent keeping they 
 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 gives 
 the party injured a double remedy in this cafe ; by permitting 
 him to diftrein the cattle thus damage- feaf ant, or doing da- 
 mage, till the owner fhall make him fatisfaction ; or elfe by 
 leaving him to the common remedy inforo contentiofo, by ac- 
 tion. And the action 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 ft armis ; whereby 
 a man is called upon to anfwer, quare vi et armis claufum ip~ 
 fius A. apud B. fregit, et blada i^Jius X* ad va'entiam centum 
 folidorum ibidem nuper crefcentia cum quibufdam averiis dep'aftus 
 fuit, conculcavit, ct conjumffit, &c h : for the law always cou- 
 ples the idea of force with that of intrufion upon the property 
 of another. And herein, if any unwarrantable act of the 
 
 1> Regiftr. 94. 
 O 2
 
 2ia PRIVATE Boo Kill. 
 
 defendant or his beafts in coming upon the land be proved, 
 it is an aft of trefpafs for which the plaintiff muft recover" 
 fome damages} fuch however as the jury fhall think pro- 
 per to affefs. 
 
 IN trefpaflcs 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 
 dav to another, (which is called laying the ation with a 
 continuando) and the plaintiff fhall not be compelled to bring 
 feparate adlions for every day's feparate offence l . But where 
 the trefpafs is by one or feveral a&s, each of which terminates 
 in itfelf, and being once done cannot be done again, it can- 
 not be laid with a continuando; yet if there be repeated a&s 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 times within a given period k . 
 
 I N fome cafes trefpafs is juftifiable ; or, rather, entry on 
 another's land or houfe (hall not in thofe cafes be accounted 
 trefpafs : as if a man comes there to demand or pay money, 
 there payable ; or to execute, in a legal manner, the procefs 
 of the law. Alfo a man may juftify entering into an inn or 
 public houfe, without the leave of the owner firft fpecially 
 ufked ; becaufe, when a man profeffes the keeping of fuch inn 
 or public houfe, he thereby gives a general licence to any 
 perfon to enter his doors. So a landlord may juftify entering 
 to diftrein for rent ; a commoner to attend his cattle, com- 
 moning on another's land ; and a reverfioner, to fee if any 
 wafte be committed on the eftate ; for the apparent neceifity 
 of the thing 1 . Alfo it hath been faid, that by the common 
 law and cuftom of England the poor are allowed to enter 
 and glean upon another's ground after the harveft, without 
 
 ' 2 Roll. Abr, 545. LordRaym. 240. 7 Mod. 152. 
 k Salk. 638, 639. Lord Raym. 823. ' 8 Rep. 146. 
 
 being
 
 Ch. 12. WRONGS. 213 
 
 being guilty of trefpafs m : which humane provifion feems bor- 
 rowed from the mofaical law ". In like manner the common 
 law warrants the hunting of ravenous beafts of prey, as 
 badgers and foxes, in another man's land ; becaufe the de- 
 ftroying fuch creatures is profitable to the public . But in 
 cafes where a man mifdemeans himfelf, or makes an ill ufe of 
 the authority with which the law entrufts him, he fhall be 
 accounted a trefpafler ab imtio p : as if one comes into a ta- 
 vern and will not go out in a reafonable time, but tarries 
 there all night contrary to the inclinations of the owner ; 
 this wrongful a6t fhall affect and have relation back even to 
 his firft entry, and make the whole a trefpafs *. 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 con- 
 tract, for which the taverner fhall have an action of debt or 
 affumpfit again ft him r . So if a landlord diftrein for rent, and 
 wilfully killed the diftrefs, this by the common law made 
 him a trefpafler ak initio s : and fo indeed would any other ir- 
 regularity have done, till the ftatute n Geo. II. c. 19. 
 which enacts, that no fubfequent irregularity of the landlord 
 fhall make his firft entry a trefpafs ; but the party injured 
 fhall have a fpecial action on the cafe for the real fpeci- 
 fic injury fuftained, unlefs tender of amends hath been made. 
 But frill, if a reverfioner, who enters on pretence of feeing 
 wade, breaks the houfe, or flays 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 en- 
 tered for this unlawful purpofe, and therefore, as the a6t 
 which demonftrates fuch his purpofe is a trefpafs, he fhall 
 be efteemed a trefpafler ab initio 1 . So alfo in the cafe of 
 hunting the fox or the badger, a man cannot juftify break- 
 ing the foil, and digging him out of his earth : for though 
 
 ro Gilo. Ev. 253. Trials per pels. P Finch. L 47. Cro. Jac. 14.8. 
 
 ch. 15. pag.43S. <J 2 Roll. Abr. 561. 
 
 n Levit. c. 19. v. 9. & c. 23. V. 22. r 8 Rep. 147. 
 
 Deut. e. 24. v. 19, &c. s Finch. L. 47. 
 
 o Cro, Jac. 321. t g Rep. 146. 
 
 03
 
 214 PRIVATE BOOK III. 
 
 'the law warrants the hunting of fuch noxious animals for the 
 public good, yet it is held u that fuch things muft be done in 
 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 
 rqal actions, to try the property of eftates ; though it is not 
 fo ufual as that by ejectment, becauic that, being now a 
 mixed action, not only gives damages for the ejection, but 
 alf9 ponefllon of the land : whereas in trefpafs, which is 
 merely a perfonal fuit, the right can be only afcertained, but 
 no poffeflion delivered j nothing being recovered but damages 
 for the wrong committed. 
 
 IN order to prevent trifling and vexatious actions of tref- 
 pafs, as well as other perfonal actions, it is (Inter alia) 
 enacted by ftatutes 43 Eliz. c. 6. and 22 and 23 Car. II. 
 c. 9. . 136. that where the jury, who try an action of tref- 
 pafs, give iefs damages than forty (hillings, the plaintiff (hall 
 be allowed no more coirs than damages; unlefs the judge 
 fhall 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 ?iiade by fubfequent 
 ftatutes. One is by ftatute 8 & 9 W. III. c. u. which 
 enacts, that in all actions of trefpafe, wherein it (hall appear 
 that the trefpafs was wilful and malicious, and it be fo certi- 
 fied by the judge, the plaintiff fhall recover full cofrs. Every 
 trefpafs is wilful, where the defendant has notice, and is ef- 
 pecially forewarned not to come on the land ; as every tref- 
 pafs is maliioits^ though the damage may not amount to forty 
 (hillings, where the intent of the defendant plainly appears to 
 
 u Cro. Jac. 321. 
 
 be
 
 Ch. 12. WRONGS. 215 
 
 be to harrafs and diftrefs the plaintiff. The other exception is 
 by ftatute 4 and 5 W. & M. c. 23. which gives full cofts 
 againft any inferior tradefman, apprentice, or other diflb- 
 lute perfon, who is convi&ed of a trefpafs in hawking, 
 hunting, fifhing, or fowling upon another's land. Upon 
 this ftatute it has been adjudged, that if a perfon be an 
 inferior tradefman, as a clothier for inftance, it matters 
 not what qualification he may have in point of eftate ; 
 but, if he be guilty of fuch trefpafs, he (hall be liable to 
 pay full cofts w . 
 
 Lord Raym, 149.
 
 216 PRIVATE BOOK III. 
 
 CHAPTER THE THIRTEENTH. 
 OF N U S AN C E. 
 
 A THIRD fpecies of real injuries to a man's lands and 
 tenements, is by nufance. Nufance, nocumentum^ or 
 annoyance, fignifies any thing that worketh hurt, inconveni- 
 ence, or damage. And nufances are of two kinds ; public or 
 common nufances, which affedt the public, and are an annoy- 
 ance to all the king's fubje&s ; for which reafon we muft refer 
 them to the clafs of public wrongs, or crimes and mifdemef- 
 nors : and private nufances ; which are the objects of our 
 prefent confideration, and may be defined, any thing done to 
 the hurt or annoyance of the lands, tenements, or heredita- 
 ments of another a . We will therefore, firft, mark out the 
 feveral kinds of nufances, and then their refpe&ive remedies. 
 
 I. IN difcuffing the feveral kinds of nufances, we will 
 confider, firft, fuch nufances as may affect a man's corpo- 
 real hereditaments, and then thofe that may damage fuch 
 as are incorporeal. 
 
 I. FIRST, as to corporeal inheritances. If a man builds a 
 houfe fo clofe to mine that his roof overhangs my roof, and 
 throws the water off his roof upon mine, this is a nufance, 
 for which an action will lie b . Likewife to erect a houfe or 
 other building fo near to mine, that it flops up my antient 
 
 Finch. L. 188. b F. N. B. 184. 
 
 light*
 
 Ch. 13. WRONGS. 217 
 
 lights and windows is a nufance of a fimilar nature . But 
 'in this latter cafe it js necelTary that the windows be antient^ 
 that is, have fubilfted there time out of mind ; otherwife 
 there is no injury done. For he hath as much right to build 
 a new edifice upon his ground, as I have upon mine : fince 
 every man may do what he pleafes upon the upright or per- 
 pendicular of his own foil ; and it was my folly to build fb 
 near another's ground d . Alfo, if a perfon keeps his hogs, 
 or other noifome animals, fo near the houfe of another, that 
 the ftench of them incommodes him and makes the air un- 
 wholfome, this is an injurious nu-fance, as it tends to deprive 
 him of the ufe and benefit of his houfe e . A like injury is, if 
 one's neighbour fets up and exercifes any offenfive trade ; as 
 a tanner's, a tallowchandier's, or the like : for though thefe 
 are lawful and neceflary trades, yet they fhould be exercifed 
 in remote places ; for the rule is, "fie utere tuo, ut alienum 
 " non laedas :" this therefore is an actionable nufance f . So 
 that the nufances which affeft a man's dwelling may be re- 
 duced to thefe three : i. Overhanging it; which is alfo a 
 fpecies of trefpafs, for cujus ejl folum ejus eft ufque ad coelum : 
 2. Stopping antient lights : and, 3. Corrupting the air with 
 noifome fmells : for light and air are two indifpenfable requi- 
 fites to every dwelling. But depriving one of a mere matter 
 of pleafure, as of a fine profpeft, by building a wall, or the 
 like j this, as it abridges nothing really convenient or necef- 
 fary, is no injury to the fufferer, and is therefore not an ac- 
 tionable nufance *. 
 
 As to nufances to one's lands: if one erects 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 h . And by confequence it fol- 
 lows, that if one does any other aft, in itfelf lawful, which 
 yet being done in that place neceffarily tends to the damage 
 of another's property, it is a nufance : for it is incumbent on 
 
 c 9 Rep. 58. t Cro, Car. 510. 
 
 * Cro. Eliz. 118. Sails. 459. E 9 Rep. 58. 
 
 < 9 Rep. 58. h j Roll. Abr. 89. 
 
 hirfi
 
 PRIVATE BOOK III. 
 
 him to find fome other place to do that act, 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 flop or divert water that ufes to run to another's 
 meadow or mill k j to corrupt or poifon a water-courfe, by 
 erecting a dye-houfe or a lime-pit for the ufe of trade, in the 
 tipper part of the ftream l ; or in fliort to do any act therein, 
 that in it's 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 fhould do unto ourfelves." 
 
 2. As to incorporeal hereditaments, the law carries itfelf 
 with the fame equity. If I have a way, annexed to my eftate, 
 acrofs another's land, and he obftructs me in the ufe of it, 
 either by totally flopping it, or putting logs acrofs it, or 
 ploughing over it, it is a nufance : for in the firft cafe I can- 
 not enjoy my right at all, and in the latter I cannot enjoy it fo 
 commodioufly as I ought m . Alfo, if I am entitled to hold 
 a fair or market, and another perfon fets up a fair or market 
 fo near mine that it 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 erected within the 
 third part of twenty miles from mine. For fir Matthew 
 Hale conftrues the dieta^ or reafonable day's journey, men- 
 tioned by Bracton p , to be twenty miles : as indeed it is 
 ufually underftood not only in our own law q , but alfo in the 
 civil r , from which we probably borrowed it. So that if the 
 new market be not within feven miles of the old one, it is no 
 
 i Hale on F. N. B. 427. on F. N. B. 184. 
 
 k F. N. B. 184. P /. 3. c. 16. 
 
 1 9 Rep. 59. 2 Roll. Abr. 141. 1 2 Inft. 567. 
 
 m F. N. B. tS3. 2 Roll. Abr. 140. iFf.t.ll.i. 
 * F. N. B. 148. a Roll. Abr, 140. 
 
 nufance :
 
 Ch. 13. WRONG s. 219 
 
 nufance : for it is held reafonable that every man fhould have 
 a market within one third of a day's journey from his own 
 home ; that, the day being divided into three parts, he may 
 fpend one part in going, another in returning, and the third 
 in tranfa&ing his neceffary bufmefs 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 erected on 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 fubjeclis ; otherwife he may be grie- 
 voufly amerced s : it would be therefore extremely hard, if a 
 new ferry were fuffered to {hare 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 eredt 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 '. 
 
 II. LET us next attend to the remedies, which the law 
 has given 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 aftion lies for a public or common 
 nufance, but an indiftment only : becaufe the damage being 
 common tOtf//the king's fubjects, no one can affign his parti- 
 cular proportion of it; or if he coulcl, it would be extremely 
 hard, if every fubjecl: in the kingdom were allowed to harrafs 
 the offender with feparate actions. For this reafon, no per- 
 fon, natural or corporate, can have an acTion for a public 
 nufance, or punifh it ; but only the king in his public capa- 
 
 z Roll, Abr. 140. t Hale on F. N. B. i?4, 
 
 city
 
 220 PRIVATE BOOK III. 
 
 city of fupremc governor, and pater-familias of the king- 
 dom u . Yet this rule admits of one exception ; where a pri- 
 vate perfon fuffers fome extraordinary damage, beyond the 
 reft of the king's fubjects, by a public nufance : in which 
 cafe he {hall have a private fatisfaction by action. 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, which is not 
 common to others, the party mall have his action". Alfo 
 if a man hath abated, or removed, a nufance which offended 
 him (as we may remember it was ftated in the firft chapter of 
 this book, that the party injured hath a right to do) in this 
 cafe he is entitled to no action *. For he had choice of two 
 remedies ; either without fuit, by abating it himfelf, by his 
 own mere act and authority; or by fuit, in which he may 
 both recover damages, and remove it by the aid of the law : 
 but, having made his election of one remedy, he is totally 
 precluded from the other. 
 
 THE remedies by fuit are, i. By action on the cafe for da- 
 mages; in which the party injured mail only recover a fa- 
 tisfaction for the injury fuftained ; but cannot thereby remove 
 the nufance. Indeed every continuance of a nufance is held 
 to be a frefh one f ; and therefore a frefli action will lie, and 
 very exemplary damages will probably be given, if, a/ter one 
 verdict againft 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 actions j the 
 ajjtfe of nufance^ and the writ of quod permittat profternere : 
 which not only give the plaintiff fatisfaction for his injury 
 pad, but alfo ftrike at the root and remove the caufe itfelf, 
 thq nufance that occafioned the injury. Thefe two actions 
 however can only be brought by the tenant of the freehold ; fo 
 that a leffee for years is confined to his action upon the cafe * 
 
 Vaugh. 341, 34*. y 2 Leon. pi. 129. Cro. Eliz. 402. 
 
 " Co. Litt. 56. 5 Rep. 73. * Finch. L. 289. 
 
 x 9 Re r . 55. 
 
 2. AN"
 
 Ch, 13. WRONGS. 221 
 
 2. AN ajjife of nufance is a writ, wherein it is ftated that 
 the party injured complains of fome particular facl: done, ad 
 nocumentum liberi tenementi fui, and therefore commanding the 
 flieriff to fummon ah aflife, that is a j ury, and view the pre- 
 mifes, and have them at the next commiffion of affifes, that 
 juftice may be done therein a : and, if the affife is found for 
 the plaintiff, he fhall have judgment of two things ; i. To 
 have the nufance abated ; and 2. To recover damages b . For- 
 merly an aflife 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- 
 ments, whereon the nufance was fituated. This was the 
 immediate reafon for making that equitable provifion in fta- 
 tute Weftm. 2. 13 Edw. I. c. 24. for granting a fimilar 
 writ, in cafu confimlli^ where no former precedent was to be 
 found. The ftatute enafts, that " de caetero non recedant 
 " querentts a curia domini rfgis, pro eo quod tenementum trans- 
 " fertur de uno 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 affife is brought againft the very per- 
 fon only who levied the nufance, it is faid, " quod A. (the 
 " wrongdoer) injujle 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) levave- 
 " runt c ." For every continuation as was before faid, is a 
 frefli nufance ; and therefore the complaint is as well ground- 
 ed againft the alienee who continues it, as againft the alienor 
 who firft levied it. 
 
 3. BEFORE this ftatute, the party injured, upon any alie- 
 nation of the land wherein the nufance was fet up, was driven 
 to his quod pcrmittat projiernere ; which is in the nature of a 
 writ of right, and therefore fubjecl: to greater delays d . This 
 is a writ commanding the defendant to permit the plaintiff to 
 abate, quod permittat profternere, the nufance complained of j 
 
 a F. N. B. ^3, c Kid. 
 
 * 9 Rep. 55. J a Inft. 40$. 
 
 and,
 
 222 PRIVATE Bo OK III. 
 
 and, unlefs he fo permits, to fummon him to appear in court, 
 and {hew caufe why he will not e . And this writ lies as well 
 for the alienee of the party firft injured, as agalnjl the alienee 
 of the party firft injuring j as hath been determined by all the 
 judges f . And the plaintiff fhall have judgment herein to 
 abate the nufance, and to recover damages againft the de- 
 fendant. 
 
 BOTH thefe actions, ofajfife of nufance^ and oi quod permit- 
 tat profternere, are now out of ufe, and have given way to the 
 action on the cafej 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 neceflary that the 
 freehold mould be in the plaintiff and defendant refpectively, 
 as it muft be in thefe real actions, but it is maintainable by 
 one that hath poffeflion only, againft another that hath like 
 pofleffion, the procefs is therefore eafier : and the effect will 
 be much the fame, unlefs a man has a very obftinate as well 
 as an ill-natured neighbour; who had rather continue to pay 
 damages, than remove his nufance. For in fuch a cafe, re- 
 
 O * 7 
 
 courfe muft at laft be had to the old and fure remedies, which 
 will effectually conquer the defendant's perverfenefs, by fend- 
 ing the fheriff with his pojfc comitatus y or power of the coun- 
 ty, to level it. 
 
 e F. N. B. 124. f 5 Rep. 100, 101.
 
 Ch. 14^ WRONG s.' 223 
 
 CHAPTER THE FOURTEENTH, 
 OF WASTE. 
 
 >"T~ V HE fourth fpecies of injury, that may be offered to 
 JL one's real property, is by wafte^ or deftruclion in 
 lands and tenements. What fhall be called wafte was confi- 
 dered at large in a former volume % as it was a means of for- 
 feiture, and thereby of transferring the property of real 
 eftates. I fhall therefore here only beg leave to remind the 
 ftudent, that wafte is a fpoil and deftru&ion of the eftate, 
 either in houfes, woods, or lands ; by demolifhing 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 vaJJum : and that 
 thisvqftum, or wafte, is either voluntary or permiffive; the 
 one by an actual and defigned demolition of the lands, woods, 
 and houfes ; the other arifing from mere negligence, and want 
 of fufficient care in reparations, fences, and the like. So 
 that my only bufinefs is at prefent lo fhew, to whom this 
 wafte is an injury j and of courfe who is entitled to any, and 
 what, remedy by action. 
 
 I. THE perfons, who may be injured by wafte, are fuch 
 as have fome interejl in the eftate wafted : for if a man be the 
 abfolute tenant in fee-fimple, without any incumbrance or 
 charge on the premifles, he may commit whatever wafte his 
 
 a See Vol, II. ch. 18. 
 
 own
 
 224 PRIVATE BOOK III. 
 
 own indifcretion may prompt him to, without being im- 
 peachable or accountable for it to any one. And, though 
 his heir is fure to be the fufferer, yet nemo eft haeres viventis : 
 no man is certain of fucceeding 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 fac- 
 tus : or, in the more accurate phrafeology of our Englifh 
 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 vvhofe hands foever therefore 
 the eftate wafted comes, after a tenant in fee-fimple, 
 though the wafte is undoubtedly damnum y it is damnum 
 abfque injuria. 
 
 ONE fpecies of intereft, which is injured by wafte, is 
 that of a perfon who has a right of common in the place 
 wafted j efpecially if it be common of eftovers^ or a right 
 of cutting and carrying away wood for houfe-bote, plough- 
 bote, &c. Here, if the owner of the wood demolifhes the 
 whole wood, and thereby deftroys all pofiibility of taking 
 eftovcrs, this is an injury to the commoner, amounting to 
 no lefs than a difleifm of his common of eftovers, if he 
 choofes fo to confider it ; for which he has his remedy to 
 recover pofTeflion and damages by affife, if entitled to a 
 freehold in fuch common : but if he has only a chattel in- 
 tereft, then he can only recover damages by an action on the 
 cafe for this waileand deftruclion of the woods, out of which 
 his eftovers were to iffue h . 
 
 &UT the moft ufual and important intereft, that is hurt 
 by this com miilion of wafte, is that of him, who hath the 
 remainder or reveriion 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 wafte at the common law c , or the leflee for life or years, 
 
 b F. N. B. 59. 9 Ren. iia. c a l n ft. 199. 
 
 who
 
 Cli. 14. WRONGS. 22$ 
 
 who was firft made liable by the ftatutes of Marlbridge d and 
 of Glocefter e ) 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 difmember it of it's 
 moft defirable incidents and ornaments, among which timber 
 and houfes may juftly be reckoned the principal. To him 
 therefore in remainder or reverfion the law hath given a 
 remedy ; that is, to him to whom the inheritance appertains 
 in expectancy f . 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 pofieflion, and then he hath fuffered 
 no injury. 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 action 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 
 not feifed in their own right, the writ of wafte (hall not fay, 
 ad exbaeredationem ipjius, as for other tenants in fee-fimple j 
 but ad exhaeredationem ecclefiae^ in whofe right the fee-fimple 
 is holden s . 
 
 II. THE redrefs for this injury of wafte is of two kinds* 
 preventive, and corrective : the former of which is by writ 
 of ejlrepement) the latter by that of wafte. 
 
 I. ESTREPEMENT is an old French word, fignifying the 
 fame as wafte or extirpation : and the writ of ejlrepement lay 
 at the common law, after judgment obtained in any action 
 real h , and before pofleflion was delivered by the iheriff; to 
 flop any wafte which the vanquifhed 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 ejlrepement 
 pending the fuit, well knowing the weaknefs of his title, 
 therefore the ftatute of Glocefter * gave another writ of 
 ejlrepement) pendents placito, commanding the fheriff firmly 
 
 d 52 Hen. III. c. 23. Z Hid, 341. 
 
 e 6 Edw. I. 0.5. h 2 Inft. 318. 
 
 f Co. Litt. 53. i 6 Edw. I. c. 13. 
 
 VOL. Ill, P to
 
 226 PRIVATE BOOK III. 
 
 to inhibit the tenant "ne facial vaflum vel eftrepamentum pen- 
 ** dente placito ditto indifcttjfi k ." And, by virtue of either of 
 thefe writs the flieriff 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 neceffity require, he may take the 
 pqffe comitatus to his afliftance. So odious in the fight of the 
 law is wafte and deftrudtion '. In fuing out thefe two writs 
 this difference was formerly obferved ; that in actions merely 
 pofleflbry, where no damages are recovered, a writ of ejlrepe- 
 ment might be had at any time pendente lite, nay even at 
 the time of fuing out the original writ, or firft procefs : but, 
 in an action where damages were recovered, the demandant 
 could only have a writ of ejlrepement^ if he was apprehenfive 
 of wafte after verdict had ra ; for, with regard to wafte done 
 before the verdict was given, it was prefumed the jury would 
 confider that in aflefling the quantum of damages. But now 
 it feems to be held, by an equitable conftru&ion of the ftatute 
 of Glocefter, and in advancement of the remedy, that a writ 
 of ejlrepement, to prevent wafte, may be had in every ftage, 
 as well of fuch actions wherein damages are recovered, as of 
 thofe wherein only pofleffion is had of the lands : for perad- 
 venture, faith the law, the tenant may not be of ability to 
 fatisfy the demandant his full damages n . And therefore now, 
 in an action of wafte itfelf, to recover the place wafted and 
 alfo damages, a writ of ejlrepement will lie, as well before as 
 after judgment. For the plaintiff cannot recover damages for 
 more wafte than is contained in his original complaint ; 
 neither is he at liberty to 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 juftice, fince he is 
 in his prefent fuit debarred of any farther remedial . If a writ 
 of ejlrepement^ forbidding wafte, be directed and delivered to 
 the tenant himfelf, as it may be, and he afterwards proceeds 
 to commit wafte, an action may be carried on upon the 
 
 k Regift. 77. n lb\d. 6l. 
 
 1 2 Inft. 319. 5 Reg. 115. 
 
 F.N.B. 60, 61. 
 
 founds-
 
 Ch. 14. WRONGS. 
 
 foundation of this writ ; wherein the only plea of the tenant 
 can be, non fecit vajlum centra prokibitionem : and, if upon 
 verdict it be found that he did, the plaintiff may recover cofta 
 and damages P ; or the party may proceed to punifti the de- 
 fendant for the contempt : for if, after the v/rit 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 1. But not fo, if it be directed to the ftieriff, for 
 then it is incumbent upon him to prevent the ejlrepement ab- 
 folutely, even by raifing the poffe comitatus, 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 deftruction, will grant an injunction or order to ftay 
 wafte, until the defendant lhall have put in his anfwer, and 
 the court fhall thereupon make farther order. Which is now 
 become the moft ufual way of preventing wafte. 
 
 2. A WRIT of wafte is alfo an action, partly founded upon 
 the common law and partly upon the ftatute of Glocefter r ; 
 and may be brought by him who hath the immediate eftate of 
 inheritance in reverfion or remainder, againft the tenant fot 
 life, tenant in dower, tenant by the curtefy, or tenant fot 
 years. This action is alfo maintainable in purfuance of 
 ftatute s Weftm. 2. by one tenant in common of the inherit- 
 ance againft another, who makes wafte in the eftate holden 
 in common. The equity of which ^"tute extends to joint- 
 tenants, but not to coparceners : 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 common 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 fhare, or to give fecurity not to commit any farther 
 wafte 1 . But thefe tenants in common and joint-tenants arc 
 
 P Moor. loo. !. 13 Edw. I. c. 22. 
 
 q Hob. 85. t 2 inft. 403, 404, 
 
 * 6 Edw. I. , 5. 
 
 Pa not
 
 PklVATE 
 
 not liable to the penalties of the ftatute of Glocefter, 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 recover 
 in an action of wafte : nam de minimis non curat lex u . 
 
 THIS action of wafte is a mixed action ; 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 j and, if 
 the wafte be proved, the plaintiff fhall recover the thing or 
 place wafted, and alfo treble damages by the ftatute of Glo- 
 cefter. The writ of wafte calls upon the tenant to appear 
 and fhew caufe, why he hath committed wafte and deftruclion 
 in the place named, ad exbaeredationem^ to the diflnherifon, 
 of the plaintiff w . And if the defendant makes default, or 
 does not appear at the day afligned him, then the fheriff 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 j and make a return or report of 
 the fame to the court, upon which report the judgment is 
 founded x . For the law will not fuffer fo heavy a judgment, 
 as the forfeiture and treble damages, to be paffed upon a 
 mere default, without full affurance that the fact is according 
 as it is ftated in the writ. But if the defendant appears to 
 the writ, and afterwards fuffers judgment to go againft him 
 by default, or upon a nibil dicit> (when he makes no anfwer, 
 puts in no plea, in defence) this amounts to a confeflion of 
 the wafte ; fince, having once appeared, he cannot now pre- 
 tend ignorance of the charge. Now therefore the fheriff 
 fliall not go to the place to inquire of the fact, whether 
 any wafte has, or has not, been committed ; for this is 
 already afcertained by the filent confeffion of the defendant : 
 but he fhall only, as in defaults upon other actions, make 
 inquiry of the quantum of damages ?. The defendant, on, 
 
 " F : nch. L. 29. * Poph. 24. 
 
 * F. N.B. 55. y Cro, Eliz. 18. 290. 
 
 the
 
 Ch. 14. WRONGS. 229 
 
 the trial, may give in evidence any thing that proves there 
 was no wafte committed, as that the deftruction happened 
 by lightning, tempeft, the king's enemies, or other inevitable 
 accident 2 . But it is no defence to fay, that a ftranger did 
 the wafte, for againft him the plaintiff hath no remedy : 
 though the defendant is entitled to fue fuch ftranger in art 
 action of trefpafs vi et armis, and flrall recover the damages 
 he has differed in confequence of fuch unlawful aft a . 
 
 WHEN the wafte and damages are thus afcertained, either 
 by confeffion, verdict, or inquiry of the fheriff, judgment is 
 given, in purfuance of the ftatute of Glocefter, c. 5. that the 
 plaintiff fhall recover the place wafted ; for which he has 
 immediately a -writ offeijin, provided the particular eftate be 
 ftill fubfifting, (for, if it be expired, there can be no for- 
 feiture of the land) and alfo that the plaintiff fhall recover 
 treble the damages afTefied by the jury j which he muft obtain 
 in the fame manner as all other damages, in actions perfonal 
 and mixed, are obtained, whether the particular eftate be 
 expired, or ftill in being. 
 
 2 Co. Litt, 53. a Law cf mfi friut, ua. ,
 
 330 PRIVATE BOOK. Ill, 
 
 CHAPTER THE FIFTEENTH. 
 OF SUBTRACTION. 
 
 QUBTRACTION, which is the fifth fpecies of inju- 
 & ries affecting a man's real property, happens, when any 
 perfon who owes any fuit, duty, cuflom, or fervice to ano- 
 ther, withdraws or neglects to perform it. It differs from 
 a difleifin, in that this is committed without any denial of the 
 right, confiding merely in non-performance ; that ftrikes at 
 the very title of the party injured, and amounts to an oufter 
 or actual difpofleffion. Subtraction 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 ratione tenurae-, being the 
 conditions upon which the antient lords granted out their 
 lands to their feudatories : whereby it was ftipulated, that 
 they and their heirs fhould take the oath of fealty or fidelity 
 to their lord, which was the feodal bond or commune vinculum 
 between lord and tenant ; that they fhould do fuit, or duly 
 attend and follow the lord's courts, and there from time to 
 time give their afliftance, by ferving on juries, either to de- 
 cide the property of their neighbours in the court-baron, or 
 correct their mifdemefnors in the court-leet ; and, laftly, 
 that they fhould yield to the lord certain annual ftated re- 
 turns, in military attendance, in provifions, in arms, in 
 matters of ornament or pleasure, in ruftic employments or 
 
 praedial
 
 Ch. 15. WRONGS. 231 
 
 praedial labours, 'or (which is injlar omnium} in money, 
 which will provide all the reft ; all which are comprized un- 
 der the one general name of reditus, return, or rent. And 
 the fubtraction 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 diminifhing and depreciating the value of his 
 feignory. 
 
 THE general remedy for all thefe is by dijlrefs; and it is 
 the only remedy at the common law for the two firft of them. 
 The nature of 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 diftreined upon. And 
 for the moft part it is provided that diftrefles be reafonable 
 and moderate j but, in the cafe of diftrefs for fealty or fuit of 
 court, no diftrefs can be unreafonable, immoderate, or too 
 large b : for this is the only remedy to which the party ag- 
 grieved is entitled, and therefore it ought to be fuch as is 
 fufficiently 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 fatisfaction 
 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 dijlrefs infinite-, which is alfo ufed for fome other 
 purpofes, as in fummoning jurors, and the like. 
 
 OTHER remedies for fubtraction of rents or fervices are, 
 j. By action of debt? for the breach of this exprefs contract, 
 of which enough has been formerly faid. This is the moft 
 ufual remedy, when recourfe is had to any action at all for 
 the recovery of pecuniary rents, to which fpecies of render 
 almoft all free fervices are now reduced, fince the abolition 
 of the military tenures. But for a freehold rent, referved on 
 
 a See pag. 6. 147. b Finch. L. 285, 
 
 P 4 a leafe
 
 232 PRIVATE BOOK III. 
 
 a leafe for life, sV, no a&ion of debt lay by the common law, 
 during the continuance of the freehold out of which it iflued c : 
 for the law would not fuffer a real injury to be remedied by 
 an action that was merely perfonal. However by the ftatutes 
 8 Ann. c. 14. and 5 Geo. III. c. 17. actions of debt may now 
 be brought at any time to recover fuch freehold rents. 2. An 
 aflife of mort d'ance/tor or novel diffeifm will lie of rents as well 
 as of lands d ; if the lord, for the fake of trying the poffeflbry 
 right, will elecl: to fuppofe himfelf oufted or diffeifed thereof. 
 This is now feldom heard of; and all other real adions, being 
 in the nature of writs of right, and therefore more dilatory 
 in their progrefs, are entirely difufed, though not formally 
 abolifhed by law. Of this fpecies however is, 3. The writ 
 de c onfuet udinibus et fervitiis, which lies for the lord agaimt 
 his tenant, who withholds from him the rents and fervices 
 due by cuftom, or tenure, for his land c . This compels a 
 fpecific payment or performance of the rent or fervice ; but 
 there are alfo others, whereby the lord fhall recover the hnd 
 itfelf in lieu of the duty withheld. As, 4. The writ of cef- 
 Javit : which lies, by the ftatutes of Glocefter, 6 Edw. I. 
 c. 4. and of Weftm. 2. 13 Edw. I. c. 21 & 41. when -\ man 
 who holds lands of a lord by rent or other fervices, rv-.jle&s 
 or ceafes to perform his fervices for two years together ; or 
 where a religious houfe hath lands given it, on condition of 
 performing fome certain fpiritual fervice, as reading prayers 
 or giving alms, and neglels it; in either of which cafes, if 
 the cejjer or negledr. have continued for two years, the lord or 
 donor and his heirs fhall have a writ of cejjavit to recover the 
 land itfelf, eo quodtenens in faciendis fervitiis per bienniumjam 
 cejjavit f . And in like manner, by the civil law, if a tenant, 
 (who held lands upon payment of rent or fervices, or as they 
 call it ''jure empbyteutico"} neglected to pay or perform 
 them pertotum triennium^ he might be ejected from fuch em- 
 phyteutic lands s. But by the ftatute of Glocefter, the cejja- 
 vit does not He for lands let upon fee-farm rents, unlefs they 
 have lain frefh and uncultivated for two years, and there be 
 
 < i Roll. Ahr. 595. i Jbld. 208. 
 
 * F. N. E. 195. g Cad. 4. 66. 2. 
 
 f //. Ifl. 
 
 not
 
 Ch. 15. WR o N c s. 233 
 
 not fufHcient diftrefs upon the premifes ; or unlefs the tenant 
 hath fo enclofed the land, that the lord cannot come upon it 
 to diftrein h . For the law prefers the fimple and ordinary 
 remedies, by diftrefs or by the actions juft now mentioned, 
 to this extraordinary one of forfeiture for a cejjavit ; and 
 therefore the fame ftatute of Glocefter has provided farther, 
 that upon tender of arrears and damages before judgment, 
 and giving fecurity for the future performance of the fcrvices, 
 the procefs fhall be at an end, and the tenant (hall retain his 
 land. And to this 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 k 4 Geo. II. c. 28. (which 
 permits landlords who have a right of re-entry for non-pay- 
 ment of rent, to ferve an ejectment on their tenants, when 
 half a year's rent is due, and there is no diftrefs on the pre r 
 mifes) is in fome meafure copied from the antient writ of 
 cejjavit : 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 n Geo. II. c. 19. . 16. which enacts, that where 
 any tenant at rack-rent mail be one year's rent in arrear, and 
 fiiall 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 effect) may give the landlord pofleffion 
 thereof, and thenceforth the leafe fhall be void. 5. There is 
 alfo another very effectual remedy, which takes place when 
 the tenant upon a writ of aflife for rent, or on a replevin, 
 difowns or difclaims his tenure, whereby the lord lofes his 
 verdict : in which cafe the lord may have a writ of right, fur 
 difclaimer, grounded on this denial of tenure; and fhall, 
 upon proof of the tenure, recover back the land itfelf fo 
 holden, as a punifhment to the tenant for fuch his falfe dif- 
 claimer '. This piece of retaliating juftice, whereby the 
 tenant who endeavours to defraud his lord is himfelf deprived 
 of |he eftate, as it evidently proceeds upon feodal principles, 
 
 h F. N. B. 209. 2, Inft, 298. k See F ag. 206. 
 
 2 Inft, 401. 460. 1 Finch. L ft 270, 27^. 
 
 fo
 
 234 PRIVATE BOOK III. 
 
 fo it is exprefsly to be met with in the feodal conftitutions m : 
 " vajallus, qui abnegavit feudum ejufve conditionem^ exfpo- 
 " liabitur." 
 
 A NO, as on the one hand the antient law provided thefe 
 feveral remedies to obviate the knavery and punifh the ingra- 
 titude of the tenant, fo on the other hand is was equally 
 careful to redrefs the oppreflion of the lord ; by furnifhing, 
 I. The writ of ne injujle ve xes n ; 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 - 3 
 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 feifm 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 deveft the lord's poflef- 
 fion, and eftablifh the mere right of property, by afcertaining 
 the fervices, and reducing them to their proper flandard. 
 But this writ does not lie for tenant in tail ; for he may avoid 
 fuch feifm of the lord, obtained from the payment of his an- 
 ceftors, by plea to an avowry in replevin ^. 2. The writ of 
 mefne, de media ; which is alfo in the nature of a writ of right r , 
 and lies, when upon a fubinfeudation the mejne or middle lord s 
 fuffers his under-tenant, or tenant paravail, to be diftreined 
 upon by the lord paramount , for the rent due to him from the 
 mefne lord'. And in fuch cafe the tenant fhall 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 mall be forejudged of his mefnalty, 
 and the tenant fhall hold immediately of the lord paramount 
 himfelf. 
 
 m Feud. I. 2. r. 26. r Booth. 136. 
 
 a F. N T . B. 10. Ste book II. ch. 5. pag. 59, 60. 
 
 c. 10. t F. N. B. 1-5. 
 
 P Booth. 116. z Inft. 374. 
 
 s F. N. C. IT. 2 L.:T. 21. 
 
 II. THUS
 
 Ch. 15. WRONGS. 235 
 
 II. THUS far of the remedies for fubtradtion of rents or 
 other fervices due by tenure. There are alfo other fervices, 
 due by antient cuftom and prefcrlption 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 - t and afterwards 
 any of them go to another mill, and withdraw their fuit, 
 (their fefta, a fequendo] 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 erection of fuch mill by the anceftora of the owner 
 for the convenience of the inhabitants, on condition, that 
 when erected, they mould all grind their corn there only. 
 And for this injury the owner mall have a writ de fetta ad 
 molendinum w , commanding the defendant to do his fuit at that 
 mill, quant ad illud facere debet, et folet, or {hew good caufe 
 to the contrary : in which action the validity of the prefcrip- 
 tion may be tried, and if it be found for the owner, he mall 
 recover damages againft the defendant x . In like manner, 
 and for like reafons, the regifter y will inform us, that a man 
 may have a writ offeffa adfurnum^fefla ad torrale, et ad om- 
 niaalla hujufmodi ; for fuit due to hisfurnum, his public oven 
 or bakehoufe ; or to his torrale, his kiln, or malthoufe ; when 
 a perfon's anceftors have erected a convenience of that fort for 
 the benefit of the neighbourhood, upon an agreement (proved 
 by immemorial cuftom) that all :hc inhabitants mould ufe 
 and refort to it, when erected. But befides thefe fpecial re- 
 medies for fubtractions, to compel the fpecific performance 
 of the fervice due by cuftom ; an action on the cafe will alfo 
 lie for all of them, to repair the party injured in damages. 
 And thus much for the injury of fubtraction. 
 
 v F. N, B. 123. y fol. 153. 
 
 X Co. Entr. 461.
 
 236 PRIVATE BOOK III. 
 
 CHAPTER THE SIXTEENTH, 
 OF DISTURBANCE, 
 
 HE fixth and laft fpecies of real injuries is that of 
 diflurbance ; 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 (hall 
 confider five forts of this injury; viz. I. Difturbance of 
 franchises. 2. Difturbance of common. 3. Difturbance of ways. 
 4. Difturbance of tenure. 5. Difturbance of patronage. 
 
 I. DISTURBANCE of francbifes happens, when a man has 
 the franchife of holding a court-leet, of keeping a fair or 
 market, of free-warren, of taking toll, of feifmg waifs or 
 eftrays, or (infhort) any other fpecies of franchife whatfo- 
 ever ; and he is difturbed or incommoded in the lawful exer- 
 cife thereof. As if another by diftrefs, menaces, or perfuafions, 
 prevails upon the fuitors not to appear at my court : or ob- 
 ftrucls 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 feifmg the waif or eftray, whereby it efcapes 
 or is carried out of my liberty : in every cafe of this kind, 
 which it is impoffible here to recite or fuggeft, there is an 
 injury done to the legal owner j his property is damnified, 
 and the profits arifing from fuch his franchife are diminifhed. 
 To remedy which, as the law has given no other writ, he is 
 
 a Fbch. L. 187.
 
 Ch. 1 6. WRONGS. 237 
 
 therefore entitled to fue for damages by a fpecial action 
 an the cafe : or, in cafe of toll, may take a diftrefs if he . 
 pleafes b . 
 
 II. THE difturbance of common comes next to be confi- 
 dered ; where any act is done, by which the right of another 
 to his common is incommoded or diminifhed. 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 refpective fhares of the 
 pafture. Or if one, who hath a right of common, puts in 
 cattle 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 aftran- 
 ger's cattle into the common j and alfo, by a like prefcrip- 
 tion for common appurtenant, cattle that are not common- 
 able may be put into the common d . 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 
 beafts 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 f : or the com- 
 moner may bring an action on the cafe to recover damages, 
 provided the injury done be any thing confiderable : fo that 
 he may lay his action with &per quod, or allege that thereby he 
 was deprived of his common. But for a trivial trefpafs the 
 commoner has no action ; but the lord of the foil only, for 
 the entry and trefpafs committed %. 
 
 ANOTHER difturbance of common is by fur -charging it ; or 
 putting more cattle therein than the pafture and herbage will 
 luftain, 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 refpective portions, or at lead contract- 
 
 b Cro. Eliz. 558. e Cro. Eliz.876. Cro. Jac. 195, I.utw. IcS. 
 
 c I Roll. Abr. 396, * 9 Rep. 112, 
 
 * Co. Lit:, lit.. Ibid.
 
 238 PRIVATE BOOK lit. 
 
 ing them into a fmaller compafs. This injury by furcharging 
 can properly fpeaking only happen, where the common is 
 appendant or appurtenant h , and of courfe limitable by law j 
 or where, when in grofs y it is exprefsly limited and certain : 
 for where a man hath common in grofs, fans nombre or 
 without Jlint, he cannot be a furcharger. However, even where 
 a man is faid to have common without ftint, ftill there muft 
 be left fufficicnt for the lord's own beafts * : for the law will 
 not fuppofe that, at the original grant of the common, the 
 lord meant to exclude himfelf. 
 
 TH E ufual remedies, for furcharging the common, are ei- 
 ther by diftreining fo many of the beafts as are above the 
 number allowed, or elfe by an a&ion of trefpafs ; both which 
 may be had by the lord : or, laftly, by a fpecial action on 
 the cafe for damages ; in which any commoner may be plain- 
 tiff 11 . But the antient and moft effectual method of pro- 
 ceeding is by writ of admeasurement of pajlure. This lies, ei- 
 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 directed to the fheriff, (vice-comiti) and not 
 to be returned to any fuperior court, till finally executed by 
 him. It recites a complaint, that the defendant hath fur- 
 charged, fuperoneravit, the common : and therefore com- 
 mands the Iheriff 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 fhall be admeafured, as well thofe who 
 have not, as thofe who have, furcharged the common j as 
 well the plaintiff, as the defendant m . The execution of this 
 writ muft be by a jury of twelve men, who are upon their 
 
 h See bcok II. ch. 3. 1 2 Inft. 369. Firuh. L. 314. 
 
 i i Roll. Abr. 399. - F. N. B, 115. 
 
 k Freem. 473. 
 
 caths
 
 Ch. 1 6. WRONGS. 239 
 
 oaths to afcertain, under the fuperintendence of the fheriff, 
 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 fhall not turn more cattle 
 upon the common, than are fufficient to manure and flock 
 the land to which his right of common is annexed ; or, as 
 our antient law expreffed it, fuch cattle only as are levant and 
 couchant upon his tenement n : which being a thing uncertain 
 before admeafurement, has frequently, though erroneoufly 
 occafioned this unmeafured right of common to be called a 
 common without Jlint or fans nonibre j a thing which, though 
 poffible in law, does in fact 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 of fecond furcharge^ de fecunda fuperoneratione, 
 which is given by the ftatute Weftm. 2. 13 Edw. I. c. 8. and 
 thereby the fheriff is directed to inquire by a jury, whether 
 the defendant has in fact 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 fhall pay damages to the plaintiff P. This procefs 
 feems highly equitable : for the firft offence is held to be 
 committed through mere inadvertence ; and therefore there 
 are no damages or forfeiture on the firft writ, which was only 
 to afcertain the right which was difputed : but the fecond 
 ffence is a wilful contempt and injuftice ; and therefore pu- 
 niftied very properly with not only damages, but alfo for- 
 feiture. And herein the right, being once fettled, is never 
 again difputed ; but only the fact is tried, whether there be 
 any fecond furcharge or no : which gives this neglected pro- 
 ceeding a great advantage over the modern method, by action 
 on the cafe, wherein the quantum of common belonging to 
 the defendant muft be proved upon every frefh trial, for every 
 repeated offence. 
 
 n Bro. Abr. t. prefiriftier;, aS. t F. N. B. iz6. a Inft. 370. 
 
 Hardr. 117. 
 
 THERE
 
 240 PRIVATE BOOK III. 
 
 THERE is yet another difturbance of common, when the 
 Owner of the land, or other perfon, fo enclofes or otherwife 
 obftrudts it, that the commoner is precluded from enjoying 
 the benefit, to which he is bylaw entitled. This maybe 
 done, either by creeling fences, or by driving the cattle off 
 the land, or by ploughing up the foil of the common 1. Or 
 it may be done by eredling 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 action againft the owner r . 
 This kind of difturbance does indeed amount to a diflelin, and 
 if the commoner chufes to confider it in that light, the law 
 has given him an aflife of novel dijjeifm, againft the lord, to 
 recover the poffeffion of his common *. Or it has given a 
 writ of quod permittat^ 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 fhall be compelled to permit the plain- 
 tiff to enjoy his common as he ought l . But if the commoner 
 does not chufe to bring a real a&ion to recover feifin, or to 
 try the right, he may (ivhich is theeafterand more ufual way) 
 bring an action on the cafe for his damages, inftead of an a/fife 
 or a quod pfrmittat ". 
 
 THERE are cafes indeed, in which the lord may enclofe 
 and abridge the common ; for which, as they are no injury 
 to any one, fo no one is entitled to any remedy. For it is 
 provided by the ftatute of Merton, 20 Hen. III. c. 4. that 
 the lord may approve^ that is, enclofe and convert to the ufds 
 of hufbandry, (which is a melioration or approvement) any 
 wafte grounds, woods, or paftures, in which his tenant 
 have common appendant to their cftates ; provided he leaves 
 
 q Cro. Eliz. 198. t Finch. L. 175. F. N. B. 123, 
 
 r Cro. Jac. 195. u Cro. Jac. 195. 
 
 s F. N. B. 179. 
 
 fufficient
 
 Ch. 16. WRONGS. 241 
 
 fufficient common to his tenants, according to the proportion 
 of their land. And this is extremely reafonable : for it would 
 be very hard if the lord, vvhofe anceftors granted out thefe 
 eftates to which the commons are appendant, fhould 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. 13 Edw. I. c. 46. extends this liberty of approv- 
 ing, in like manner, againft all others that have common ap- 
 purtenant^ or in grofs, as well as againft the tenants of the 
 lord, who have their common appendant j and farther enacts 
 that no aflife of novel diffeifm^ for common, fhall lie againft 
 a lord for erecting on the common any windmill, fheephoufe, 
 or other neceflary buildings therein fpecified : which, fir Ed- 
 ward Coke fays w , 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 
 fufficient for the commoners. And laftly by ftatutes 29 Geo. 
 II. c. 36. and 31 Geo. II. c. 41. it is particularly enadted, 
 that any lords of waftes and commons, with the confent of 
 the major part, in number and value, of the commoners, 
 may inclofe any part thereof, for the growth of timber and 
 underwood. 
 
 III. THE third fpecies of difturbance, that of ways^ 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 obftrucled by inclofures, 
 or other obftacles, or by ploughing acrofs it ; by which 
 means he cannot enjoy his right of way, or at leaft not in fo 
 commodious a manner as he might have done. If this be a 
 way annexed to his eftate, and the obftru&ion is made by the 
 tenant of the land, this brings it to another fpecies of injury ; 
 for it is then a nufance, for which an aflife will lie, as men- 
 tioned in a former chapter x , But if the right of way, thus 
 obftrucled by the tenant, be only in grofs, (that is, annexed 
 tp a man's perfon and unconnected with any lands or tene- 
 
 ^ Inft. 476. x ch. 13. p. 2iS. 
 
 VOL. III. Q. merits)
 
 PRIVATE BOOK Itt. 
 
 ments) or if the obftru&ion 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 obftru&ion of a way in grofs is no de- 
 triment to any lands or tenements, and therefore does not fall 
 under the legal notion of a nufance, which muft be laid, ad 
 nocumentum tiberi tenementi y ; and the obftrudtion of it by a 
 ftranger can never tend to put the right of way in difpute : 
 the remedy therefore for thefe difturbances is not by affife or 
 any real action, but by the univerfal remedy of action on the 
 cafe to recover damages z . 
 
 IV. THE fourth fpecies of difturbance is that of difturbance 
 of tenure^ 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 aci of a third perfen. The having of an eftate well te- 
 nanted is an advantage that every landlord muft be very fen- 
 fible of ; and therefore the driving away a tenant from off his 
 eftate is an injury of no fmall confequence. If therefore 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 adlion on the cafe. 
 
 V. THE fifth and laft fpecies of difturbance, but by far 
 the moft confiderable, is that of difturbance of patronage ; 
 which is an hindrance or obftruclion of a patron to prefent 
 his clerk to a benefice. 
 
 THIS injury was diftinguimed at common lawfrom another 
 fpecies of injury, called ufurpation; which is an abfoluteoufter 
 or difpoffeflion of the patron, and happens when a ftranger, 
 that hath no right, prefenteth a clerk, and he is thereupon 
 
 y F. N. B. 183. Hal. Annal, c. 40. i Roll. Abr. 
 
 z Hale on F. N. B. ^3. Lutw.ln. 10?, 
 115. 
 
 admitted
 
 Oh. 16. WRONGS. 243 
 
 admitted and inftituted b . In which cafe, of ufurpation, the 
 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 action, viz. a writ of right of advowfon c . The 
 reafon given for his lofmg the prefent turn, and not ejecting 
 the ufurper's clerk, was, that the final intent of the law in 
 creating this fpecies of property being to have a fit perfon to 
 celebrate divine fervice, it preferred the peace of the church 
 (provided a clerk were once admitted and 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 poflef- 
 fion of his advowfon, as much as when by actual entry and 
 oufter he is difleifed of lands or houfes ; fince the only pof- 
 feflion, of which an advowfon is capable, is by actual pre- 
 fentation and admiflion of one's clerk. And therefore, when, 
 the clerk was once inftituted (except in the cafe of the king, 
 where he muft alfo be induced d ,) the church was abfolutely 
 fully and the ufurper became felfed of the advowfon. Which 
 feifin or pofleffion it was impoiiible for the true patron to re- 
 move by any poflefibry a6tion, or other means, during the 
 plenarty or fullnefs of the church ; and when it became void 
 afrefh, he could not prefent, fince another had the right of 
 pofieflion. The only remedy therefore, which the patron had 
 left, was to try the mere right in a writ of right of advowfon ; 
 which is a peculiar writ of right, framed for this fpecial pur- 
 pofe, but in every other refpect correfponding with other 
 writs of right e : and, if a man recovered therein, he regain- 
 ed his advowfon and was entitled to prefent at the next avoid - 
 ance f . But in order to fuch recovery he muft allege a pre- 
 fentation in himfelf or fome of his anceftors, which proves 
 him or them to have been once in pofleflion : for, as a grant 
 of the advowfon, during the fullnefs of the church, conveys 
 
 b Co. Litt. 227. e F. N. B. 30, 
 
 c 6 Sep. 49. f Ibid. 36. 
 
 d Ibid. 
 
 Q.2 no
 
 244 PRIVATE BOOK III. 
 
 no manner of porTeflion for the prefent, therefore a purchafor, 
 until he halh prefented, hath no a&ual feifm whereon to 
 ground a writ of right s . Thus ftood the common law. 
 
 BUT bifhops, 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 poflefiion, it was in fubftance enadted by ftatute 
 Weftm. 2. 13 Edw. I. c. 5. . 2. that if a pofleflbry aclion be 
 brought within fix months after the avoidance, the patron 
 (hall (notwithstanding fuch ufurpation and inftitution) re- 
 cover that very prefentation ; which gives back to him the 
 fcifm of the advowfon. Yet ftill, if the true patron omitted 
 to bring his action within fix months, the feifm was gained 
 by the ufurper, and the patron to recover it was driven to the 
 long and hazardous procefs of a writ of right. To remedy 
 which it was farther ena&ed by ftatute 7 Ann. c. 18. that no 
 ufurpation (hall difplace the eftate or intereft 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 ftands upon this reafonable founda- 
 tion : that if a ftranger ufurps my prefentation, and I do not 
 purfue my right within fix months, I fhall lofe that turn 
 without remedy, for the peace of the church, and as a 
 punimment for my own negligence; but that turn is the 
 only one I fhall lofe thereby. Ufurpation now gains no 
 right to the ufurper, with regard to any future avoidance, 
 but only to the prefent vacancy : it cannot indeed be reme- 
 died 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 
 Jifputable j the clerk, by demanding or obtaining inftitution, 
 
 which
 
 Ch. 1 6. W R o N G s. 245 
 
 which tends to and promotes the fame inconvenience ; and 
 the ordinary, by refilling 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 light : and 
 therefore, if he be not wanting to himfelf, the law (befides 
 the writ of right of advowfon^ which is a final and conciufive 
 remedy-) hath given him two inferior pofTeflbry actions for 
 his relief ; an aflife of darreln prefentment, and a writ of quare 
 jmpedit ; 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 obftructing or refufing the admiflion of his 
 nominee; and not to the clerk, who hath no right in him 
 till inftitution, and of courfe can fuffer no injury. 
 
 I. AN aflife of darreln prefentment, or laft prefentation, 
 lies 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 fhall have this writ h directed to the 
 fheriff to fummon an aflife or jury, to inquire who was the 
 laft patron that prefented to the church now vacant, of whirh 
 the plaintiff complains that he is deforced by the defendant : 
 and, according as the aflife determines that queftion, a writ 
 {hall iflue to the biftiop ; to inftitute the clerk of that patron, 
 in whofe favour the determination is made, and alfo to give 
 damages, in purfuance of iiatute Weftm. 2. 13 Edw. I. c. 5. 
 This queftion, it is to be obierved, was, before the ftatute 
 7 Ann. before-mentioned, entirely conciufive, as between the 
 patron or his heirs and a itranger : for, till then, the full 
 poflefiion of the advowfon was in him who prefented laft and 
 his heirs ; unlefs, fmce that prefentation, the clerk had been 
 evicted 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 impedit, and to recover (if his title be 
 good) notwithftanding the laft prefentation, by whomfoevcr 
 
 F.N.I?. -51. 
 
 Q. 3 made ;
 
 646 PRIVATE BOOK III. 
 
 fnade ; a/Iifes of darrein prcfentment, 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 ation. For the afilfe of darre:n 
 prefentment lies only where a man has an advowfon by def- 
 cent from his anceftors ; but the writ of quare impedit is 
 equally remedial whether a man claims title by defcent or by 
 purchafe '. 
 
 2. I PROCEED therefore, fecondly, to inquire into the 
 nature k of a writ of quare impedit^ now the only a6Hon ufed 
 in cafe of the disturbance of patronage : and {hall firft premife 
 the ufual proceedings previous to the bringing of the writ. 
 
 UPON the vacancy of a living the patron, we know, is 
 bound to prefent within fix calendar months ', otherwife it 
 will lapfe to the bifhop. But if the prefentation be made 
 within that time, the bifhop is bound to admit and inftitute 
 the clerk, if found fufficient 1 "; 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 ecclefiafti- 
 cal law n ; but this the temporal courts pay no regard to, 
 and look upon a caveat as a mere nullity . But if two pre- 
 fentations be offered to the bifhop upon the fame avoidance, 
 the church is then faid to become litigious; and, if nothing 
 farther be done, the bifhop may fufpend the admifllon of 
 either, and fufFer a lapfe to incur. Yet if the patron or clerk 
 on either fide requeft him to award a jus patronatus, he is 
 bound to do it. A jus patronatus is a commiffion from the 
 bifhop, directed 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 
 
 ' 2 In ft. 351;. m See book I. ch. n, 
 
 * See Bofw ell's cafe. 6 Rep. 48. " i Burn. 207. 
 
 i ee book. II. ch. 18. I Roll. Rep. 191. 
 
 rightful
 
 Ch. 16. WRONGS. 247 
 
 rightful patron p ; and if, upon fuch inquiry made and cer- 
 tificate thereof returned by the commiflioncrs, he admits and 
 inftitutes the clerk of that patron whom they return as the 
 true one, the bifliop fecures himfelf at all events from being 
 a difturber, whatever proceedings may be had afterwards in 
 the temporal courts. 
 
 THE clerk refufed by the bifliop may alfo have a remedy 
 againft him in the fpiritual court, denominated & 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 arch-bifliop, or from an arch-bifliop to the delegates : 
 and if the fuperior court adjudges the caufe of refufal to be 
 infufficient, it will grant inftitution to the appellant. 
 
 THUS far matters may go on in the mere ecclefiaftical 
 courfe ; but in coatefted 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 impedit 
 againft the bifliop, for the temporal injury done to his pro- 
 perty, in difturbing him in his prefentation. And, if the 
 delay arifes from the bifliop 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 action ; or it may 
 be brought againft the patron and clerk, leaving out the bi- 
 fliop ; or againft the patron only. But it is moft advifeable 
 to bring it againft all three : for if the bifliop be left out, and 
 the fuit be not determined till the fix months are paft, the 
 bifliop is entitled to prefent by lapfe ; for he is not party to 
 the fuit r : but, if he be named, no lapfe can poiFibly accrue 
 till the right is determined. If the patron be left out, and the 
 writ be brought only againft the bifhop and the clerk, the 
 fuit is of no efFccl, and the writ fliall abate * ; for the right 
 of the patron is the principal queftion in the caufe '. If the 
 
 P i Burn. 16, 17. * Hob. 316. 
 
 q Ib'lt). 113, t y R C p m 2 - m 
 
 r Cio. Jac. 93. 
 
 clerk
 
 24$ PRIVATE BOOK III. 
 
 clerk be left out, and has received inftitution before the action 
 brought (as is fometimes the cafe) the patron by this fuit 
 may recover his right of patronage, but nor 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 againft it. For which reafon it is the fafer way 
 always to infert them, all three in the writ. 
 
 THE writ of quare impedit* commands the difturbers, the 
 bifhop, the 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 patronage ; and which the defendants, as he alleges, 
 do obftrudl: : and unlefs they fo do, then that they appear in 
 court to (hew the reafon why they hinder him. 
 
 IMMEDIATELY on the fuing out of the quare impedit, if 
 the plaintiff fufpe&s 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 w ; which recites the 
 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 a. jure patronatus, then the plaintiff, after 
 he has obtained judgment in the quare impedit^ may remove 
 the incumbent, if the clerk of a ftranger, by writ of fcire- 
 facias * : and fhall have a fpecial adlion againft the bifhop, 
 called a quare incumbravit ; to recover the prefentation, and 
 alfo fatisfaction in damages for the injury done him by in- 
 cumbering the church with a clerk, pending the fuit, and 
 after the ne admittas received *. But if the bifhop has in- 
 cumbered the church by inftituting the clerk, before the ne 
 admittas iffued, no quare Incumbravit lies ; for the bifhop 
 hath no legal notice, till the writ of ne admittas is ferved upon 
 
 >' F. N. B. 32. x 2 Sid. 94. 
 
 w Ibid. 37. y F.N. B. 48. 
 
 him.
 
 Ch. 1 6. WRONGS. 249 
 
 him. The patron is therefore left to his quare vnpedit mere- 
 ly ; which, as was before obferved, now lies (fince the ftatute 
 of Weftm. 2.) as well upon a recent ufurpation within fix 
 months paft, as upon a difturbance without any ufurpation 
 had. 
 
 IN the proceedings upon a quare impedit, the plaintiff 
 muft fet out his title at length, and prove at leaft one pre- 
 fentation in. himfelf, his anceftors, or thofe under whom he 
 claims ; for he muft recover by the ftrength of his own 
 right, and not by the weaknefs of the defendant's z : and he 
 muft alfo mew a difturbance before the action brought 3 . 
 Upon this the bifhop 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 : i. 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 affefs the damages which are directed to be 
 given by the ftatuteof Weftm. 2. 3. In cafe of plenarty upon 
 an ufurpation, whether fix calendar b months have paffed 
 between the avoidance and the time ^f bringing the a6tion : 
 for then it would not be within the ftatute, which permits an 
 ufurpation to be devefted by a quare impedit, brought infra 
 tempus feme/ire. So that plenarty is ftill a fufficient bar in an 
 aft ion of quare impedit^ brought above fix months after the 
 vacancy happens j as it was univerfally by the common law, 
 however early the action was commenced. 
 
 IF it be found that the plaintiff hath the right, and hath 
 commenced his action in due time, then he fhall have judg- 
 
 * Vaugh. 7, g. b 2. Inft. 361. 
 
 1 Hob. 199. 
 
 ment
 
 250 PRIVATE Boo Kill. 
 
 ment to recover the prefentation ; and, if the church be full 
 by inftitution of any clerk, to remove him : unlefs it were 
 filled pendents lite by lapfe to the ordinary, he not being party 
 to the fuit ; in which cafe the plaintiff lofes his prefentation 
 f>ro hac vice, but (hall recover two years' full value of the 
 church from the defendant the pretended patron, as a fatis- 
 faction for the turn loft by his difturbance : or, in cafe of his 
 infolvency, he fhall be imprifoned for two years c . 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, fhall have a writ directed to 
 the bifhop ad admtttendum flericttm\ reciting the judgment 
 of the court, and ordering him to admit and inftitute the clerk 
 of the prevailing party ; and, if upon this order he does not 
 admit him, the patron may fue the bifhop in a writ of qxars 
 non admifit e , and recover ample fatisfaction in damages. 
 
 BESIDES thefe pofleflbry actions, there may be alfo had (as 
 hath before been incidentally mentioned) a writ of right of 
 tidvoiufon, which refembles other writs of right : the only 
 diftinguifhing advantage now attending it, being, that it is 
 more conclufive than a quare 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 than the times of Richard I and Henry III : 
 for by ftatutc i Mar. ft. 2, c. 5. the ftatute of limitations, 
 32 Hen. VIII. c. 2. is declared not to extend to any writ of 
 right of advowfon, quare 'impedit ', or affife of darrein prefent- 
 ?nent, or jus patronatus. And this upon very good reaibn : 
 becaufe it may very eafily happen that the title to an advowfon 
 may not come in queftion, 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 lir 
 Edward Coke f tells us, that there was a parfon of one of his 
 
 c Stat.Weftm. 2. 13 Etlw.-I. c. 5. .3. e Hid. 47. 
 d F, N. B. 38. f I Inft. 11.5. 
 
 churches,
 
 Ch. 16. WRONGS. 251 
 
 churches, that had been incumbent there above fifty years ; 
 nor are instances wanting wherein two fucceffive 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 
 necefTary and unavoidable for the patron, in cafe of a difpute, 
 to have recurred back above a century; in order to have {hewn 
 a clear title and feifm by prefentation and admiffion of the 
 prior incumbent. But though, for thefe reafons, a limitation 
 is highly improper with refpect only to the length of time ; 
 yet, as the title of advowfons is, for want of fome limitation, 
 rendered more precarious than that of any other heredita- 
 ment, it might not perhaps be amifs if a limitation were 
 eftablifhed with refpect to the number of avoidances ; or, 
 rather, if a limitation were compounded of the length of time 
 and the number of avoidances together : for inftance, if no 
 feifm were admitted to be alleged in any of thefe writs of 
 patronage, after fixty years and three avoidances were paft. 
 
 IN a writ of quare impedit, which is almoft the only real 
 action that remains in common ufe, and alfo in /the aflife of 
 darrein frefentment^ and writ of right, the patron only, and 
 not the clerk, is allowed to fue the difturber. But, by vir- 
 tue of feveral acts of parliament h , there is one fpecies of 
 prefentations, in which a remedy, to be fued in the temporal 
 courts, is put into the hands of the clerks prefented, as well 
 as of the owners of the advowfon. I mean the prefentation 
 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 
 proceeding is provided ; viz. that, befides the writs of quare 
 impedit, which the univerfities as patrons are entitled to 
 bring, they, or their clerks, may be at liberty to file a bill 
 
 g The two laft incumbents of the 1650, the latter in 1700, and died in 
 reftory of Chelsfield cum Farnhorough 1751. 
 
 in Kent, continued 101 years ; of h Stat. 3 Jac. I. c. 5. 1 W. & M. 
 whom the former was admitted in c. 26. 12 Ann. ft. 2. c. 14. 11 Ceo, 
 
 II. c, 17. 
 
 in.
 
 252 PRIVATE BOOK III. 
 
 in equity againft any perfon prefenting to fuch livings, and 
 difturbing their right of patronage, or his cejluy que /r/?, or 
 any other perfon whom they have caufe to fufpeft j in order 
 to compel a difcovery of any fecret trufts, for the benefit of 
 papiftsj 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.) 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 prote- 
 ftants, and for a full confideration ; without which requifitcs 
 every fuch grant or conveyance of any advowfon or avoidance 
 is abfolutely null and void. This is a particular law, and 
 calculated for a particular purpofe : but in no inftance but 
 this does the common law permit the clerk himfelf to interfere 
 in recovering a prefentation, of which he is afterwards to 
 have the advantage. For befides that he has (as was before 
 obferved) no temporal right in him till after inftitution and 
 induction j 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 function. 
 For it looks upon the cure of fouls as too arduous and im- 
 portant a tafk to be eagerly fought for by any ferious clergy- 
 man ; 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 pofleffion of the benefice, 
 the law gives him the fame poflefTory remedies to recover 
 his glebe, his rents, his tithes, and other ecclefiaftical dues, 
 by writ of entry, affife, ejectment, debt, or trefpafs, (as 
 the cafe may happen) which it furniflies to the owners 
 of lay property. Yet he fhall not have a writ of right, nor 
 fuch other fimilar writs as are grounded upon the mere 
 right ; becaufe he hath not in him the entire fee and right 1 : 
 but he is entitled to a fpecial remedy called a writ of juris 
 in^ which is fometimes ftiled the parfon's writ of right k , 
 
 1 F. X. E, 49. k Booth. 221. 
 
 bein:
 
 Ch. l6. W R O K G S. 253 
 
 being the higheft writ which he can have '. This lies for a 
 parfon or a prebendary at common law, and for a vicar by 
 ftatute 14 Edw. III. c. 17. and is in the nature of an 
 aflife, to inquire whether the tenements in queftion are 
 frankalmoign belonging to the church of the demandant, or 
 elfe the lay fee of the tenant m . 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 ; or which were recovered againft him by verdict, 
 confeffion, or default, without praying in aid of the patron 
 and ordinary; or on which any perfon has intruded fince 
 the predeceflbr's death n . But fince the reftraining ftatute of 
 !3Eliz. c. 10. whereby the alienation of the predeceflbr, or 
 a recovery fuffered by him of the lands of the church, is de- 
 clared to be abfolutcly void, this remedy is of very little ufe, 
 unlefs where the parfon himfelf has been deforced for more 
 than twenty years ; for the fucceffor, at any competent 
 time after his acceflion to the benefice, may enter, or bring 
 an ejectment. 
 
 1 F.N.B. 48. a F.N. B. 48,49. 
 
 m Regiftr. 32. Booth, ztr.
 
 254 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 fubjecl to another, all of which are redrefled by the 
 command and authority of the king, fignified by his original 
 writs returnable in his feveral courts of juftice, which thence 
 derive a jurifdidtion of examining and determining the 
 complaint ; I proceed now to inquire of the mode of re- 
 drafting thofe injuries to which the crown itfelf is a party : 
 which injuries are either where the crown is the aggreflbr, 
 and which therefore cannot without a folecifm admit of the 
 fame kind of remedy a ; or elfe is the fufferer, and which 
 then are ufually remedied by peculiar forms of procefs, ap- 
 propriated to the royal prerogative. In treating therefore of 
 thefe, we will confider firft, the manner of redreljjng thole 
 wrongs or injuries which a fubjecl may fuffer from the crown, 
 and then of redrefling thofe which the crown may receive 
 from a fubjecl. 
 
 I. THAT the king can do no wrong, is a neceflary and 
 fundamental principle of the Englifh conftitution : meaning 
 only, as has formerly been obferved b , that, in the firft place, 
 whatever may be amifs in the conduit of public affairs is not 
 
 a Bro. Mr. t. petition. la. t. prerogative,,!, *> Book I. ch, 7. pag. 243246. 
 
 charge-
 
 Ch. 17. WRONG s. 255 
 
 chargeable perfonally on the king ; nor is he, but his rni- 
 nifters, accountable for it to the people : and, fecondly, 
 that the prerogative of the crown extends not to do any inju- 
 ry j for, being created for the benefit of the people, it cannot 
 be exerted to their prejudice c . Whenever therefore it hap- 
 pens, that, by mifinformation or inadvertence, the crown 
 hath been induced to invade the private rights of any of it's 
 fubjects, though no action will lie againft the fovereign d , 
 (for who fhall command the king* ?) yet the law hath fur- 
 nifhed the fubjecl: with a decent and refpectful mode of re- 
 moving that invafion, by informing the king of the true {rate 
 of the matter in difpute : and, as it prefumes that to know of 
 any injury and to redrcfs it are infeparable in the royal breaft, 
 it then iflues 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 fubjedts is fuch 
 that it rarely can happen, that any perfonal injury can imme- 
 diately and directly proceed from the prince to any private 
 man : and, as it can fo feldom happen, the law in decency 
 fuppofes that it never will or can happen at all ; becaufe it 
 feels itfelf incapable of furnifliing any adequate remedy, 
 without infringing the dignity and deftroyingthe fovereignty 
 of the royal perfon, by letting up fome fuperior power with 
 authority to call him to account. The inconveniency there- 
 fore of a mifchief that is barely pofliWe, is (as Mr Locke 
 has obCerved f ) well recompenfed by the peace of the public 
 and fecurity of the government, in the perfon of the chief 
 magifrrate being fet out of the reach of coercion. But inju- 
 ries to the rights of 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 refpect or delicacy, 
 but furnifties various methods of detecting the errors or mif- 
 conducr, of thofe agents, by whom the king has been deceiv- 
 ed, and induced to do a temporary injuftice. 
 
 Plowd. 487. e Finch. L. 83. 
 
 Jenkins. 78. f on Gov. p. a. . 205. 
 
 THE
 
 256 PRIVATE BOOK III. 
 
 THE common law methods of obtaining pofTeffion or ref- 
 titution from the crown, of either real or perfonal property, 
 are, i. By petition de droit ^ or petition of right, which is faid 
 to owe it's original to king Edward the firft ? . 2. By monjlrans 
 de droit, manifeftation or plea of right : both of which may 
 be preferred or profecuted either in the chancery or exchequer 11 . 
 The former is of ufe, where the king is in full pofTeflion of 
 the hereditaments or chattels, and the party fuggefts fuch a 
 right as controverts the title of the crown, grounded on facts 
 difclofed in the petition itfelf ; in which cafe he muft be care- 
 ful to ftate truly the whole title of the crown, otherwife the 
 petition (hall abate J : and then, upon this anfwer being en- 
 dorfed or underwritten by the king, foit droit fait al partie 
 (let right be done to the party i) a commiflion (hall iflue 
 to inquire of the truth of this fuggeftion k : after the return 
 of which, the king's attorney is at liberty to plead in bar ; 
 and the merits fhall be determined upon iflue or demurrer, 
 as in fuits between fubjet and fubjecr.. Thus, if a difleifor 
 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 poflefiion is caft on him either by inqueft of 
 office, or by at of law without any office found ; now the 
 difleifee fhall have remedy by petition of right, fuggefting 
 the tit'e of the crown, and his own fuperior right before the 
 difleifin made '. But where the right of the party, as well as 
 the rit>ht of the crown, appears upon record, there the party 
 fhall have monjlram de dro'ii, which is putting in a claim of 
 right grounded on fats already acknowleged and cftablim- 
 ed, and praying the judgment of the court, whether upon 
 thofe facts the king or the fubjet hath the right. As if, in 
 the cafe before fuppofed, the whole fpecial matter is found 
 by an inqueft of office, (as well the difleifin, as the dying 
 without any heir) the party grieved fhall have monjlrans de 
 droit at the common law In . But as this feldom happens, and 
 
 g Bro. Air. t.frercg. ^, Fitih. Air. j State Tr. vii. 134. 
 
 t. error. 8. k Skin. 608. Raft. Entr. 461. 
 
 > Skin. 09. ! "RtQ.Abr. t.feiliien.zo. 4 Rep. 58. 
 
 1 Finch. L.Z5<5t ra 4 Rep. 55. 
 
 the
 
 Ch. 17. WRONG s. 257 
 
 the remedy by petition was extremely tedious and expenfive, 
 that by monjlrans was much enlarged and rendered almoft 
 univerfal by feveral ftatutes, particularly 36 Edw. III. c. 13. 
 and 2 & 3 Edw. VI. c. 8. which alfo allow inquifitions of of- 
 fice to be traverfed or denied, wherever the right of a fubject 
 is concerned, except in a very few cafes n . Thefe proceed- 
 ings are had in the petty bag office in the court of chancery : 
 and, if upon either of them the right be determined againft 
 the crown, the judgment is, quod manus domini regis amove- 
 antur et poffijfio rejlituatur petenti^ falvo jure domini regis ; 
 which laft claufe is always added to judgments againft the 
 king p , to whom no laches is ever imputed, and whofe right 
 (till fome late ftatutes "J) was never defeated by any limita- 
 tion or length of time. And by fuch judgment the crown is 
 inftantly out of pofieilion r j fo that there needs not the inde- 
 cent interpofition of his own officers to transfer the feifin 
 from the king to the party aggrieved. 
 
 II. THE methods of redreffing fuch injuries as the crown 
 may receive from a fubje6t, are, 
 
 I. BY fuch ufual common law actions, as are confiftenfi 
 with the royal prerogative and dignity. As therefore the king, 
 by reafon of his legal ubiquity, cannot be difleifed or difpof- 
 feffed of any real property which is once verted in him, he 
 can maintain no action which fuppofes a difpofleflion of the 
 plaintiff; fuch as an affife or an ejecltr^'at s : but he may bring 
 a quare impedit*, which always fuppofes the complainant to be 
 feifed or poflelfed of the advowfon : and he may profecute this 
 writ, like every other by him brought, as well in the king's 
 bench u as the common pleas, or in whatever court he pleafes. 
 So too he may bring an aclion of trefpafs for taking away his 
 goods; but fuch actions are not ufual (though in ftriclnefs 
 maintainable) for breaking his clofe, or other injury done 
 upon his foil or poileffion w . It would be equally tedious 
 
 n Skin. 608. s Bro. dbr. t, prerogative. 89. 
 
 2lnft.695. Raft. Entr. 463. ' F. N. B. 32. 
 
 P Fis.ch. L. 460. u Dyverftte de courtes. c. bar.k lerty. 
 
 1 aijac.l. c.2. 9 Ceo. III. c, 16. * Bro. dbr. t.fnrog.i^o^ F.N.B. 90. 
 
 r Ibid. 459. Yearbook. 4 Hen. IV. 4. 
 
 VOL. III. R and
 
 258 PRIVATE BOOK III. 
 
 and difficult, to run through every minute diftin&ion that 
 might be gleaned from our antient books with regard to this 
 matter ; nor is it in any degree neccflary, as much eafier and 
 more effectual remedies are ufually obtained by fuch preroga- 
 tive modes of procefs, as are peculiarly confined to the crown. 
 
 2. SUCH is that of inquifitlon or inqueji of cffice : which is 
 an inquiry made by the king's officer, his meriff, 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 x . 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 ; 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 :he lands. Thefe 
 inquefts of office were more frequently in practice 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 inquifitio 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, wardfhip, relief, primer-feifin> or other advantages, 
 as the circumftances of the cafe might turn out. To fuper- 
 intend and regulate thefe inquiries the court of wards and 
 liveries was inftituted by ftatute 32 Hen. VIII. c. 46. which 
 was abolifhed at the reftoration of king Charles the fecond, 
 together with the oppreffive tenures upon which it was 
 founded. 
 
 * Fincb. L. 323, 4, 5. 
 
 WITH
 
 Ch. 17. WRONGS. 259 
 
 WITH regard to other matters, the inquefts of office ftill 
 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 man for treafon or felony, every coroners 
 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 
 interefts, in all refpedts an inqueft of office : and if they 
 find the treafon or felony, or even the flight of the party ac- 
 cufed (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 ; without which he in general can neither take, nor part 
 from, any thing Y . For it is a part of the liberties of Eng- 
 land, and greatly for the fafety of the fubject, that the king 
 may not enter upon or feife any man's pofleffions upon bare 
 furmifes without the intervention of a jury z . It is however 
 particularly enacted by the ftatute 33 Hen. VIII. c. 20. that, 
 in cafe of attainder for high treafon, the king fhall have the 
 forfeiture inftantly, without any inquifition of office. And, 
 as the king hath no title at all to any property of this fort be- 
 fore office^found, therefore by the ftatute 18 Hen. VI. c. 6. 
 it was enacted, that all letters patent or grants of lands and 
 tenements before office found, or returned into the exchequer, 
 lhall 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 perfons before 
 conviction (which is here the inqueft of office) are illegal and 
 void ; which indeed was the law of the land in the reign of 
 Edward the third a . 
 
 T Finch. L. 82. z Inft. 48, 
 
 a GUb. Jiift. exch, 132, Hob, 347. 
 
 R 2 WITH
 
 260 PRIVATE BOOK III. 
 
 WITH regard to real property, if an office be found for 
 the king, it puts him in immediate pofleffion, without the 
 trouble of a formal entry, provided a fubject in the like cafe 
 would have had a right to enter ; and the king (hall receive 
 all the mefne or intermediate profits from the time that his 
 title accrued b . As on the other hand, by the articuli fuper 
 tartas c 9 if the king's efcheator or fheriff feife lands into the 
 king's hand without caufe, upon taking them out of the 
 king's hand again, the party (hall have the mefne profits re- 
 ftored to him. 
 
 IN order to avoid the pofleffion of the crown, acquired by 
 the finding of fuch office, the fubjet may not only have his 
 petition of right, which difclofes new fads not found by the 
 office, and his monjlrans de droit^ which relies on the fa&s as 
 found ; but alfo he may (for the moft part) traverfe or deny 
 the matter of fact itfelf, and put it in a courfe of trial by the 
 common law procefs of the court of chancery : yet ftill, in 
 fome fpecial cafes, he hath no remedy left but a mere peti- 
 tion of right d . Thefe traverfes, as well as the monjlrans de 
 droitj were greatly enlarged and regulated for the benefit of 
 the fubjeft, by the ftatutes before-mentioned, and others e . 
 And in the traverfes thus given by ftatute, which came in the 
 place of the old petition of right, the party traverfing is con- 
 fidered as the plaintiff' ; and muft therefore make out his 
 own title, as well as impeach that of the crown, and then (hall 
 have judgment quod manus dominl regis amoveantur^ &c. 
 
 3. WHERE the crown hath unadvifedly granted any thing 
 by letters patent, which ought not to be granted g , or where 
 the patentee hath done an aft that amounts to a forfeiture of 
 
 b Finch. L. 325, 326. c Stat. 34Edw. III. c. 13 
 
 c 28 Edw. I. ft. 3. c. 19. III. c. 13. 2&3Edw.VI. c. 8 
 
 ^ Finch. L. 324, f Law of nifi prius, 201, aoa, 
 
 6 See book II. ch. at.
 
 Ch. 17. WRONGS. 261 
 
 the grant h , the remedy to repeal the patent is by writ of fcirt 
 facias in chancery *. This may be brought either on the part 
 of the king, in order to refume the thing granted ; or, if the 
 grant be injurious to a fubjedr, the king is bound of right to 
 permit him (upon his petition) to ufe his royal name for 
 repealing the patent in a. fcire facias k . And fo alfo, if, upon 
 office untruly found for the king, he grants the land over to 
 smother, he who is grieved thereby, and traverfes the office 
 itfelf, is entitled before iffue joined to a fcire facias againft the 
 patentee, in order to avoid the grant ! . 
 
 4. AN information N 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- 
 tisfaction in damages for any perfonal wrong m committed in 
 the lands or other poffeffions of the crown. It differs from 
 an information filed in the court of king's bench, of which 
 we mall treat in the next book ; in that this is instituted to 
 redrefs a private wrong, by which the property of the crowa 
 is affected, that is calculated to punifh fome public wrong, 
 or heinous mifdemefnor in the defendant. It is grounded on 
 no writ under feal, but merely on the intimation of the king's 
 officer the attorney- general, who " gives the court to under- 
 " ftand and be informed of" the matter in queftion ; upon 
 which the party is put to anfwer, and trial is had, as in fuits 
 between fubjedt and fubje6r. The moft ufual informations 
 are thofe of intrufion and debt: intrufwn^ for any trefpafs com- 
 mitted on the lands of the crown n , as by entering thereon 
 without title, holding over after a leafe is determined, taking 
 the profits, cutting down timber, or the like j and debt^ upon 
 any contract for monies due to the king, or for any forfeiture 
 due to the crown upon the breach of a penal ftatute. This is 
 moft commonly ufed to recover forfeitures occafioned by tranf- 
 greffing thofe laws, which are enacted for the eftablifhment 
 
 h Dyer. 198. n Moor, 375. 
 
 i 3 Lev. 220. 4 Iml. 2S. n Cro.Jac. 212. I Leon, 48. SaviJ. 
 
 k a Ventr. 344. 49. 
 
 1 Bro, dbr. t. fcire faciai. 69, 185. 
 
 R 3 and
 
 262 PRIVATE BOOK III. 
 
 and fupport of the revenue : others, which regard mere mat- 
 ters of police and public convenience, being ufually left to 
 be inforced by common informers, in the qui tarn informa- 
 tions or actions, 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 officer for his ufe. Upon fuch feifure an 
 information was ufually filed in the king's exchequer, 'and 
 thereupon a proclamation was made for the owner (if any) 
 to come in and claim the effects; and at the fame time there 
 ifTued a commiffion of appraifement to value the goods in the 
 officer's hands : after the return of which, and a fecond pro- 
 clamation had, if no claimant appeared, the goods were fup- 
 pofed derelict, and condemned to the ufe of the crown 1. 
 And when, in later times, forfeitures of the goods themfelves, 
 as well as perfonal penalties on the parties, were inflicted by 
 act of parliament for tranfgreffions againft the laws of the 
 cuftoms and excife, the fame procefs was adopted in order to 
 fecure fuch forfeited goods for the public ufe, though the of- 
 fender himfelf had efcaped the reach of juftice. 
 
 5. A WRIT of quo warranto is in the nature of a writ of 
 right for the king, againft him who claims or ufurps any 
 office, franchife, or liberty, to inquire by what authority he 
 fupports his claim, in order to determine the right r . It lies 
 alfo in cafe of non-ufer or long neglect of a franchife, or 
 mif-ufer or abufe of it; being a writ commanding the de- 
 fendant to ihew by what warrant he exercifes fuch a fran- 
 chife, having never had any grant of it, or having forfeited 
 it by neglect or abufe. This was originally returnable before 
 the king's jufticcs at Weftminfter s ; but afterwards only 
 
 See pag. 160. r Finch. L. 322. 2 Inft. 282. 
 
 P Hard. 201. s Old Nat. Brev.fd. 107. edit. 15341 
 
 1 Gilb. hift. of cxch. ch. 13. 
 
 before
 
 Ch. 17. WRONG s. 263 
 
 before the juftices in eyre, by virtue of the ftatutes of quo 
 warranto^ 6 Edw. I. c. i. and 18 Edw. I. ft. 2. ' but fmce 
 thofe juftices have given place to the king's temporary com- 
 mifiioners of affife, the judges on the feveral circuits, this 
 branch of the ftatutes hath loft it's effe u ; and writs of quo 
 ivarranto (if brought at all) muft now be profecuted and de- 
 termined before the king's juftices at Weftminfter. And in 
 cafe of judgment for the defendant, he (hall have an allow- 
 ance of his franchife; 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 fliall pleafe j 
 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 w . 
 
 THE judgment on a writ of quo warranto (being in the 
 nature of a writ of right) is final and conclufive even againft 
 the crown x . 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, 
 by information filed in the court of king's bench by the attor- 
 ney general, in the nature of a writ of quo warrantor wherein 
 the procefs is fpeedier, and the judgment not quite fo decifive. 
 This is properly a criminal method of profecution, as well 
 to punifh 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 oufting 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 among 
 other things thought expedient to new-model moft of the cor- 
 poration towns in the kingdom ; for which purpofe many of 
 
 1 zlnft. 498. Raft. Entr. 540. * i Sid. 86. .a Show. 47. iz Mod. 
 
 2 Inft.49?. 2 j 5 . 
 
 w Cro. Jac. 259. i Show. a8o. 
 
 R 4 thof*
 
 264 PRIVATE BOOK III. 
 
 thofe bodies were perfuaded to furrender their charters, and 
 informations in the nature of quo warrants were brought 
 againft others, upon a fuppofed, or frequently a real, for- 
 feiture of their franchifes by neglect or abufe of them. And 
 the confequence was, that the liberties of moft of them were 
 feifed into the hands of the king, who granted them frefh 
 charters with fuch alterations as were thought expedient; 
 and, during their ftate of anarchy, the crown named all their 
 magistrates. This exertion of power, though perhaps in 
 fummojure it was for the moft part ftrictly legal, gave a great 
 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 enadts, that 
 the franchifes of the city of London mail never be forfeited 
 again for any caufe whatfoever. 
 
 THIS proceeding is however now applied to the decifion 
 of corporation difputes between party and party, without any 
 intervention of the prerogative, by virtue of the ftatute 9 Ann. 
 c. 20. which permits an information in nature of quo war- 
 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 directs that, if the defendant be convicted, 
 judgment of oufter (as well as a fine) may be given againft 
 him, and that the relator mail pay or receive cofts according 
 to the event of the fuit. 
 
 6. THE writ of mandamus y is alfo made by the fame ftatute 
 9 Ann. c. 20. a moft full and effectual remedy, in the firft 
 place, for refufal of admiflion where a perfon is entitled to 
 an office or place in any fuch corporation ; and, fecondly, 
 for wrongful removal, when a perfon is legally pcflefTed. 
 
 y See tag. no. 
 
 Thefe
 
 Ch. 17. WRONGS. 265 
 
 Thefe are injuries, for which though redrefs for the party in- 
 terefted may be had by affife, or other means, yet as the fran- 
 chifes concern the public, and may affect the adminiftration 
 of juftice, this prerogative writ alfo iflues from the court of 
 king's bench j commanding, upon good caufe fhewn 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 ifTue, or demur, and the fame pro- 
 ceedings may be had, as if an action on the cafe had been 
 brought, for making a falfe return : and, after j udgment ob- 
 tained for the profecutor he fhal! have a peremptory writ of 
 mandamus to compel his admiffion or reftitution j which lat- 
 ter in cafe of an action) is effected by a writ of reftitution z . 
 So that now the writ of mandamus^ in cafes within this fta- 
 tute, is in the nature of an action : whereupon the party 
 applying and fucceeding may be entitled to cofts, in cafe it 
 be the franchife of a citizen, burgefs, or freeman a ; and alfo, 
 in general, a writ of error may be had thereupon b . 
 
 THIS writ of mandamus may alfo be iffued, in purfuance 
 of the ftatute i j Geo. I. c. 4. in cafe within the regular time 
 no election fliall be made of the mayor or other chief officer 
 of any city, borough, or town corporate, or (being made) 
 it fhall afterwards become void ; to ~quire the electors to 
 proceed to election, and proper courts to be held for admitting 
 and fwearing in the magiftrates fo refpedtively chofen. 
 
 WE have now gone through the whole circle of civil in- 
 juries, and the redrefs which the laws ofc England have 
 anxioufly provided for each. ' In which the ftudent cannot 
 but obferve, that the main difficulty which attends their dif- 
 cuflion arifes from their great variety, which is apt at our firrfc 
 acquaintance to breed a confufion of ideas, and a kind of 
 diftraction in the memory ; a difficulty not a little increafed 
 
 z 1 1 Rep. 79. b iP.Wnw. 351. 
 
 Stat. iz Geo. III. c. 21. 
 
 by
 
 266 PR i VATJE Bo OK III. 
 
 by the very immethodical arrangement, too juftly complained 
 of in our antient writers ; but which will infenfibly wear 
 away when they come to be re-confidered, and we are a little 
 familiarized to thofe terms of art in which the language of 
 our anceftors has obfcured them. Terms of art there will 
 unavoidably be in all fciences ; the eafy conception and tho- 
 rough comprehenfion of which muft depend upon frequent 
 ufe : and the more fubdivided any branch of fcience is, the 
 more terms muft be ufed to exprefs the nature of thefe feveral 
 fubdivifions, and mark out with fufficient precifion the ideas 
 they are meant to convey. This difficulty therefore, however 
 great it may appear at firft view, will fhrink to nothing upon 
 a nearer approach ; and be rather advantageous than of any 
 diflervice, by imprinting a clear and diftincl: notion of the 
 nature of thefe feveral remedies. And, fuch as it is, it arifes 
 principally from the excellence of our Englifh laws; which 
 adapt their redrefs exactly to the circumftances of the injury, 
 and do not furnifli one and the fame action for different 
 wrongs, which are impoffible to be brought within one and 
 the fame defcription : whereby every man knows what fatif- 
 facHon he is entitled to expedt from the courts of juftice, and 
 as little as pofEble is left in the breaft of the judges, whom 
 the law appoints to adminifter, and not to prefcribe the re- 
 medy. And I may venture to affirm, that there is hardly a 
 poflible injury, that can be offered either to the perfon or pro- 
 perty of another, for which tht party injured may not find a 
 remedial writ, conceived in fuch terms as are properly adapted 
 to his own particular grievance. 
 
 I N the feveral perfonal actions which we have curforily 
 explained, as d*bt, trefpafs, detinue, action on the cafe, and 
 the like, it is eafy to obferve how plain, perfpicuous, 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 adions is fomewhat more 
 complex and difficult, and attended with fome delays. And 
 fcnce, in order to obviate thofe difficulties, and rtrench thofe 
 
 delays.
 
 Ch. 17. WRONGS. 267 
 
 delays, we have permitted the rights of real property to be 
 drawn into queftion in mixed or perfonal fuits, we are (it 
 muft be owned) obliged to have recourfe to fuch arbitrary 
 fictions and expedients, that unlefs we had developed their 
 principles, and traced out their progrefs and hiftory, our 
 preferit fyftem of remedial jurifprudence ( in refpect of landed 
 property) would appear the moft intricate and unnatural, 
 that ever was adopted by a free and enlightened people. 
 
 BUT this intricacy of our legal procefs will be found, when 
 attentively confidered, to be one of thofe troublefome, but 
 not dangerous, evils which have their root in the frame of 
 our conftitution, 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 
 a gradual change of manners have deftroyed the original 
 ideas, on which the laws were devifed and eftabliflied, the 
 prince by his edict may promulge a new code, more fuited 
 to the prefent emergencies. But when laws are to be framed 
 by popular afiemblies, even of the reprefentative kind, it is 
 too Herculean a tafk to begin the work of legiflation afrefh, 
 and extract 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 juftic* ; and evil betide that prefump- 
 tuous fubject who queftions it's wifdom or utility. But 
 who, that is acquainted with the difficulty of new-modelling 
 any branch of our ftatute laws (though relating but to roads 
 or to parifh-fettlements) will conceive it ever feafible to alter 
 any fundamental point of the common law, with ail it's ap- 
 pendages and confequents, and fet up another rule in it's 
 ftead ? 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 ftructure 
 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 
 
 more
 
 268 PR i VAT i BOOK III. 
 
 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 
 eftablifhed forms, which might have been productive of con- 
 fequences more numerous and extenfive than the moft pene- 
 trating genius could forefee ; but left them as they were, to 
 languifh in obfcurity and oblivion, and endeavoured by a fe- 
 ries of minute contrivances to accommodate fuch perfonal 
 actions, 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 
 fenfe would have prompted them, they left an opening for 
 the more liberal and enterprizing judges, who have fate in 
 our courts of equity, to fhew them their error by fupplying 
 the omiffions of the courts of law. And, fince the new ex- 
 pedients have been refined by the practice of more than a 
 century, and are fufficiently known and underftood, they in 
 general anfwer the purpofe of doing fpeedy and fubftantial 
 juftice, much better than could now be effe&ed by any great 
 fundamental alterations. The only difficulty that attends 
 them arifes from their fictions and circuities : but, when once 
 we have difcovered the proper clew, that labyrinth is eafily 
 pervaded. We inherit an old Gothic caftle, erected in the 
 days of chivalry, but fitted up for for a modern inhabitant. 
 The moated ramparts, the embattled towers, and the trophied 
 halls, are magnificent and venerable, but ufelefs. The in- 
 ferior apartments, now converted into rooms of convenience, 
 are chearful and commodious, though their approaches are 
 winding 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 actions, as well as of perfonal remedies. And this 
 not only becaufe 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 corrections called 
 out again into common ufe; but alfo becaufe, as a fenfible 
 
 writer
 
 Ch. 17. WRONG s. 
 
 writer has well obferved z , " whoever conflders how great a 
 " coherence there is between the feveral parts of the law, 
 ' and how much the reafon of one cafe opens and depends 
 " upon that of another, will I prefume be far from thinking 
 " any of the old learning ufelefs, which will fo much 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 inftance, entirely pafled over the direct and 
 obvious remedies by affifes and writs of entry, and only laid 
 before him the modern method of profecuting a -writ of 
 ejectment. 
 
 z Hawk. Abr. Co. Litt, pref.
 
 270 PRIVATE BOOK III. 
 
 CHAPTER THE EIGHTEENTH. 
 OF THE PURSUIT OF REMEDIES BY 
 
 ACTION; AND FIRST, OF THE ORI- 
 GINAL WRIT. 
 
 HAVING, under the head of redrefs byfuit in touris, 
 pointed out in the preceding pages, in the firft place, 
 the nature and feveral fpecies of courts of juftice, wherein 
 remedies are adminiftered for all forts of private wrongs ; and, 
 in the fecond place, fhewn to which of thefe courts in par- 
 ticular application muft be made for redrefs, according to 
 the diftin&ion of injuries, or, in other words, what wrongs 
 are cognizable by one court, and what by another ; I pro- 
 ceeded, under the title of injuries cognizable by the courts of 
 common law, to define and explain the fpecifical remedies by 
 action, provided for every poflible degree of wrong or injury j 
 as well fuch remedies as are dormant and out of ufe, as thofc 
 which are in every day's pra&ice, 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- 
 medies are purfued and applied, by ation in the courts of 
 common law ; to which I fhall afterwards fubjoin a brief ac- 
 count of the proceedings in courts of equity. 
 
 IN
 
 Ch. iS. WRONGS, 
 
 IN treating of remedies by aftion at common law, I mall 
 Confine myfelf to the modern method'of pra&ice in our courts 
 of judicature. For, though I thought it neceflary to throw 
 out a few obfervations on the nature of real a&ions, how- 
 ever at prefent difufed, in order to demonftrate the coherence 
 and uniformity of our legal conftitution, and that there was 
 no injury fo obftinate and inveterate, but which might in 
 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 actions ; which are frequently mere 
 pofitive eftablimmerrts, the forma et 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 expect 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 pkas 
 at'Weftminfter j that being the court originally conftituted 
 for the profecution of all civil a&tons. It is true that the 
 courts of king's bench and exchequer, in order, without in- 
 trenching upon antient forms, to exf-nd their remedial in- 
 fluence to the neceffities of modern times, have now obtained 
 a concurrent jurifdi&ion and cognizance of civil fuits : but, 
 as caufes are therein conducted by much the fame advocates 
 and attorneys, and the feveral courts and their judges have 
 an entire communication with each other, the methods and 
 forms of proceeding are in all material refpe<Sts the fame in 
 all of them. So that, in giving an abftradt or hiftory a of 
 the progrefs of a fuit through the court of common pleas, we 
 
 a In deducing this biftory the ftudent of law, as from experience and attend- 
 jnuft not expect authorities to be con- ance on the courts. The compiler mud 
 ftantly cited ; as pradical knowledge is therefore be frequently obliged to rely up- 
 ot fo much to be learned from any books on his own obfervations j whkh in ge- 
 
 neral
 
 272 PRIVATE BOOK III. 
 
 fhall at the fame time give a general account of the proceed- 
 ings of the other two courts ; taking notice however of any 
 confiderable difference in the local practice of each. And 
 the fame abftract: will moreover afford us fome general idea 
 of the conduct of a caufe in the inferior courts of common 
 law, thofe in cities and boroughs, 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 fome ftage or other, re- 
 moved. 
 
 THE moft natural and perfpicuous way of confidering the 
 fubjecT: before us, will be (I apprehend) to purfue it in the 
 order and method wherein the proceedings themfelves follow 
 each other ; rather than to diftracT: 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 iflue 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 worth his while to de- 
 mand a fatisfadtion for it, he is to confider with himfelf, or 
 take advice, what redrefs the law has given for that injury; 
 
 eral he hath been ftudious to avoid, as they are called, are all pretty much 
 
 where tbofe of any other might be had. on a level, in point of compofition and 
 
 To accompany and Uluftrate thefe re- folid inftruftion ; fo that that which 
 
 marks, fuch gentlemen as are defigncd bears the lateft edition is ufually the beft. 
 
 for the profeflion will find it neceflary to ZutGilberfsbiJlory and praflicc of the court 
 
 perufe the books of entries, antient and ofccmtnon pitas, is a book of a very diffe- 
 
 modern ; which are tranfcripts of pro- rent ftamp : and though (like the reft 
 
 ceedings that have been had in fome parti- of his pofthumous works) it has fuffered 
 
 i ular actions. A book or two of" technical moft grofsly by ignorant or carelefs tran- 
 
 Jearning will alfo be found very conveni- fcribers, yet it has traced out the reafon 
 
 ent; from which a man of a liberal edu- of many parts of our modern practice, 
 
 cation and tolerable under.landing may from the feodal institutions and the pri- 
 
 gkan fro re r.ata as much as is Efficient mitive construction of our courts, in 2 
 
 for his purpofe. Thefe bnks cffrafiice, moft clear and ingenious maaner. 
 
 and 

 
 Ch. : 18. WRONG s; 
 
 and thereupon is to make application or fuit to the crown, 
 the fountain of all juftice, for that particular fpecific remedy 
 which he is determined or advifed to purfue. As, for money 
 due on bond, an action of debt ; for goods detained without 
 force, an action of detinue or trover ; or, if taken with force, 
 an action oftrefpafs vi et armis j or, to try the title of lands, 
 a writ of entry or action of trefpafs in ejeftment ; or, for any 
 confequential injury received, a fpecial action on the cafe. To 
 this end he is to fue out, or purchafe by paying the ftated 
 fees, an original or original writ, from the court of chancery, 
 which is the officina jujlitiae^ the {hop 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 b , 
 and directed to the fheriff of 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 againft him. Whatever the fheriff does in 
 purfuance of this writ, he muft return or certify to the court 
 of common pleas, together with the writ itfelf : which is the 
 foundation of thejuriidiction 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 fhould be no proceedings in common pleas before 
 the king's juftices without his origin-1 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 c . However, 
 in fmall actions, below the value of forty millings, which, 
 are brought in the court-baron or county court, no royal 
 writ is neceflary; but the foundation of fuch fuits continues 
 to be (as in the times of the Saxons) not by original wr/V, 
 but by faint d ; that is, by a private memorial tendered in 
 open court to the judge, wherein the party injured lets forth 
 his caufe of action : and the judge is bound of common 
 right to adminifter juftice therein, without any fpecial man- 
 
 b Finch. L. 237. d Mirr, c, a, . 3. 
 
 e Flet. /. 2. f. 34. 
 
 VOL. III. S date
 
 274 PRIVATE BOOK III. 
 
 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 y nulli negabimus^ out 
 <c differ emus juftitiam vei reftum." 
 
 ORIGINAL Writs are either optional or peremptory ; or, in, 
 the language of our law, they are either a praecipe^ or a Ji 
 te fecerit fecurum* . The praecipe is in the alternative, com- 
 manding the defendant to do the thing required, or {hew the 
 reafon wherefore he hath not done it f . The ufe of this writ 
 is where fomething certain is demanded by the plaintiff^ 
 which is in the power of the defendant himfelf to perform ; 
 as, to reftore the poffeflion of land, to pay a certain liqui- 
 dated debt, to perform a fpccific covenant, to render an ac- 
 count, and the like : in all which cafes the writ is drawn up 
 in the form of a praecipe or command, to do thus or fhew 
 caufe to the contrary j giving the defendant his choice, to 
 redrefs the injury or ftand the fuit. The other fpecies of 
 original writs is called zfefecerit tefecurum^ from the words 
 of the writ ; which directs the fheriff to caufe the defendant 
 to appear in court, without any option given him, provided 
 the plaintiff gives the fheriff fecurity effectually to profecute 
 his claim s . This writ is in ufe, where nothing is fpecifically 
 demanded, but only a fatisfaction in general ; to obtain 
 which and minifter complete redrefs, the intervention of fome 
 judicature is neceflary. Such arc writs of trefpafs, or on the 
 cafe, wherein ho debt or other fpecific thing is fued for ip 
 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 profs- 
 cuting his claim. Both fpecies of writs are te/?/d, or wit- 
 neffed, in the king's own name ; " vvitnefs ourfelf at Weft- 
 ** minfter," or wherever the chancery may be held. 
 
 c Finch. L. X57. g Append. N. II. . r. 
 
 < Append. N. III. . i.
 
 Ch. i8. WRONCS. 275 
 
 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 ftanding pledges 
 for this purpofe. The antient ufe of them was to anfwer for 
 the plaintiff, who in cafe he brought an action without caufe, 
 or failed in the profecution of it when brought, was liable 
 to an amercement from the crown for raifmg a falfe accufa- 
 tion ; and fo the form of the judgment ftill is h . In like 
 manner, as by the Gothic conftitutions no perfon was per- 
 mitted to lay a complaint againfl another, " niji fub ferip- 
 *' tura aut fpecificatione trium tejlium^ quod aflionem vellet per- 
 " fequi ' :" and, as by the laws of Sancho I, king of Portu- 
 gal, damages were given againft a plaintiff who profecuted a 
 ground lefs a&ion k . 
 
 THE 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 
 Weftminfter. And it is always made returnable at the dif- 
 tance of at leaft fifteen days from the date or tejle^ that the 
 defendant may have lime to come up to Weftminfter, even 
 from the moft remote parts of the kingdom ; and upon fome 
 day in one of the four terms, in which the court fits for the 
 difpatch of bufmefs. 
 
 THESE terms are fuppofed by Mr Selden 1 to Tiave been 
 iuftituted 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 ao other than thofe leifure feafons of the year, which 
 were not occupied by the great feftivals or fafts, or which 
 were not liable to the general avocations of rural bufmefs. 
 
 h Finch. L. 189. 252. k Mod. Un. Hift. xxii. 45. 
 
 - S f 'crp. dejure Golbcr. I. 3. f, 7. 1 y<- <dg' ' 2 - 9 
 
 S a Through-
 
 276 PRIVATE BOOK III.' 
 
 Throughout all chriftendom, in very early times, the whole 
 year was one continual term for hearing and deciding caufes* 
 For the chriftian magiftrates, to diftinguifh themfelves from 
 the heathens, who were extremely fuperftitious in the obfer- 
 vation of their dies fajli et nefajli^ went into a contrary ex- 
 treme, and adminiftered juftice upon all days alike. Till at 
 length the church interpofed and exempted certain holy fea- 
 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 ; the time of lent and carter, 
 which created that in the fpring ; the time of pentecoft, 
 which produced the third ; 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 j, which was 
 eftablifhed by a canon of the church, A. D. 517. and was 
 fortified by an imperial conftitution of the younger Theodo- 
 Cus, comprized in the Theodofian code m . 
 
 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 o6tave of the epiphany, from 
 feptuagefima to the o&ave of eafter, from the afcenfion to the 
 octave of pentecoft, and from three in the afternoon of all 
 faturdays till monday morning, the peace of God and of 
 holy church fhall be kept throughout all the kingdom. And 
 fo extravagant was afterwards the regard that was paid to 
 thefe holy times, that though the author of the mirror 
 mentions only one vacation of any confiderable length, con- 
 taining the months of Auguft and September, yet Britton is 
 exprefs p , that in the reign of king Edward the firft no 
 fecular plea could be held, nor any man fworn on the 
 
 *> Spelman of the terms. c, 3. . 8. 
 
 " t . 3. di temptribui tt diebui f>*cls+ t c, 53. 
 
 evange-
 
 Ch. 18. WRONGS. 277 
 
 evangelifts % in the times of advent, lent, pentecoft, harveft 
 and vintage, the days of the great litanies, and all folemn 
 feftivals. But he adds, that the bifhops and prelates did never- 
 thelefs grant difpenfations, (of which many are preferved in 
 Rymer's foedera of the time of king Henry the third) that 
 affifes and juries might be taken in fome of thefe holy fea- 
 fons upon reafonable occafions. And foon afterwards a ge- 
 neral difpenfation was eftabliflied in parliament, by ftatute 
 Weftm. i. 3 Edw. I. c. 51. which declares, that " forafmuch 
 " as it is great charity to do right unto all men at all times 
 " when need (hall be, by the aflent of all the prelates it was 
 "provided, that affifesof novel dijjeifin, mart d' anceftor^ and 
 " darrein presentment fliould be taken in advent, feptuageflma, 
 " and lent, even as well as inquefts may be taken; 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 fome feftival or faint's day that immediately preceded 
 their commencement, were denominated the terms of St Hi- 
 lary, of Eafter, of the holy Trinity, and of St Michael : 
 which terms have been fmce regulated and abbreviated by 
 feveral a6ts of parliament; particularly Trinity term by fta- 
 tute 32 Hen. VIII. c. 2. and Michaelmas term by ftatute 
 1 6 Car. I. c. 6. and again by ftatute 24660. II. c. 48. 
 
 THERE are in each of thefe terms ftated days called days 
 in bank, dies in banco ; that is, days of appearance in the 
 court of common pleas, called ufually bancum, or commune 
 lancum, to diftinguifti it from bancum regis or the court of 
 king's bench. They are generally at the diftance of about 
 a week from each other, and regulated by fome feftival of the 
 -church. On fome one of thefe days in bank all original 
 writs muft be made returnable ; and therefore they are gene- 
 rally called the returns of that term : whereof every term 
 has more or lefs, faid by the mirror r to have been originally 
 fixed by king Alfred, but certainly fettled as early as the 
 ftatute "of 51 Henry III, ft. 2. But though many of the 
 
 1 See p.i. 58. r c. 5. , 108, 
 
 S 3 return
 
 PRIVATE , BOOK IIL 
 
 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 had, or judgment can be given, or 
 iuppofed to be given, on the funday '. 
 
 THE firft return in every term is r properly fpeaking, the 
 firft day in that term; as, for inftance, the octave of St Hi- 
 lary, or the eighth day inclufive after the feaft of that faint ; 
 which falling on the thirteenth of January, the octave there- 
 fore or firft day of Hilary term is the twentieth of January. 
 And thereon the court fits to take ejjbigns^ or excufes for fuch 
 as do not appear according to the fummons of the writ : 
 wherefore this is ufually called the ejjoign day of the term. 
 But the perfon fummoned has three days of grace, beyond 
 the return of the writ, in which to make his appearance; 
 and if he appears on the fourth day inclufive, quarto die pojl^ 
 it is fufficient. For our fturdy anceftors held it beneath the 
 condition of a freeman to be obliged to appear, or to do any 
 other adr., at the precife time appointed or required. The 
 feodal law therefore always allowed three diftincl: days of ci- 
 tation, before the defendant was adjudged contumacious for 
 not appearing u : preferving in this refpecT: the German cuf- 
 tom, of which Tacitus thus fpeaks w , " illud ex libertate vi~ 
 *' tium, quod nonfimul nee jujji conveniunt ; fed et alter et ter- 
 " tius dies cunftatione coeuntium abfumitur." And a fimilar 
 indulgence prevailed in the Gothic conftitution, " illud enim 
 " nimiae libertatis indicium^ concejju toties impunitas nan pa- 
 *' rendi ; nee enim trinis judicii confejfibus poenam perditae 
 tl caufae cimtumax meruit*" Therefore, at the beginning of 
 each term, the court does not fit for difpatch of bufinefs till 
 the fourth day, as in Hilary term on the twenty third of Ja- 
 nuary ; and in Trinity term, by ftatute 32 Hen. VIII. c. 21. 
 not till the fixtb day; which is therefore ufually called and 
 fet down in the almanacs as the firft day of the term. 
 
 s Regiftr.ig. Sa!k.627. 6Mod.25o. u Feud. I. z. t. zz. 
 1 I Jon. 156. Swann & Brcome. .R. w de mor.Germ. c.w. 
 
 Mich, 5 Ceo. III. tt in Dim, Proc. 1766, * Stiernb. de jure Cotb, I, I. c. 6.
 
 Ch. 19. WRONGS. 279 
 
 CHAPTER THE NINETEENTH 
 
 
 
 OF PROCESS. 
 
 TH E next flep for carrying on the fuit, after fuing out 
 the original, is called the procefs j being the means 
 of compelling the defendant to appear in court. This is 
 fometimes called original procefs, being founded upon the 
 original writ j and alfo to diftinguim it from mefne or inter- 
 mediate procefs, which ifiues, pending the fuit, upon fome 
 collateral interlocutory matter ; as to fummon juries, wit- 
 nefles, and the like a . Mefne procefs is alfo fometimes put 
 in contradiftinlion to final procefs, or procefs of execution ; 
 and then it fignifies all fuch procefs as intervenes between the 
 beginning 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 {heriff's meflengers called fummoners, either in perfon or 
 left at his houfe or land b : in like manner as in the civil law 
 the firft procefs is by perfonal citation, in jus vocando* . This 
 warning on the land is given, in real actions, by ere&ing a 
 white ftick or wand on the defendant's grounds d ; (which 
 ftick or wand among the northern nations is called the baculus 
 
 a Finch. L. 436. c Ff. z. 4. I. 
 
 b Ibid. 344. 352. <1 Dalt. of iher, c, 31. 
 
 S 4 nvncia-
 
 280 P R I VAT E BOOK III. 
 
 nunciatorius ') and by ftatute 31 Eliz. c. 3. the notice muft 
 alfo be proclaimed on fome funday before the door of the 
 parifh church. 
 
 IF the defendant difobeys this verbal monition, the next 
 procefs is by writ of attachment, or pone, fo called from the 
 words of the writ f , "pone per vadium et falvos plegios, put 
 " by gage and fafe pledges A. B. the defendant, &c." This 
 is a writ, not ifluing out of chancery, but out of the 
 court of common pleas, being grounded on the non-appear- 
 ance of the defendant at the return of the original writ j and 
 thereby the (herifF is commanded to attach him, by taking 
 gage, that is, certain of his goods, which he (hall forfeit if 
 he doth not appear ; or by making him find fafe pledges or 
 fureties, who fhall be amerced in cafe of his non-appearance h . 
 This is alfo the firft and immediate procefs, without any 
 previous fummons, upon actions of trefpafs vi et armis^ or 
 for other injuries, which though not forcible are yt trefpafles 
 againft the peace, as deceit and confpiracy l ; where the vio- 
 lence of the wrong requires a more fpeedy remedy, and 
 therefore the original writ commands the defendant to be at 
 once attached, without any precedent warning j. 
 
 IF, after attachment, the defendant neglects to appear, he 
 not only forfeits this fecurity, but is moreover to be farther 
 compelled by writ of dijlringas k , or di/lrefe, infinite ; which 
 is a fubfequent procefs ifluing from the court of common 
 pleas, commanding the {herifF to diftrein the defendant from 
 time to time, and continually afterwards, by taking his goods 
 and the profits of his lands, which are called ijjues, and 
 which he forfeits to the king if he doth not appear '. But 
 the imaes may be fold, if the court fhall fo direct, in order 
 to defray the reafonable cofts of the plaintiff :n . In like 
 
 Sternh. de ]urt Succti. I. \. c, 6. \ Append. N. II. . r. 
 
 f Appeid. N. ILL . 2. k Append. N 3 . III. . 2. 
 
 1-inch. L. 345. Lord Raym. 278. ' Finch. L. 352. 
 
 h Dalt. flier, c. 31. Stat. 10 Geo. III. c. 50. 
 > Finch. L. 305. 352. 
 
 manner
 
 Ch. 19, WRONGS. 281 
 
 manner by the civil law, if the defendant abfconds, fo that 
 the citation is of no effect, " mittitur adverfarius in poj/ejfio- 
 " nem bonorum ejus n ." 
 
 AND here by the common, as well as the civil, law the 
 procefs ended in cafe of injuries without force : the defend- 
 ant, if he had any fubftance, being gradually ftripped of it 
 all by repeated diftrefles, till he rendered obedience to the 
 king's writ ; and, if he had no fubftance, the law held him 
 incapable of making fatis faction, 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 deprived of his perfonal fervices. But, in cafes of injury 
 accompanied with force, the law, to punifti 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 ; fubjecting his 
 body to imprifonment by the writ of capias ad refpondendum . 
 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, t.o arreft the perfon, in actions of account, though 
 no breach of the peace be fuggefte'd, by the ftatutes of Marl- 
 bridge, 52 Hen. III. c. 23. and Weftm. 2. 13 Edw. I. c. n. 
 in actions of debt and detinue, by ftatute 25 Edw. III. c. 17. 
 and in all actions on the cafe, by ftatute 19 Hen. VII. c. 9. 
 Before which laft ftatute a practice had been introduced of 
 commencing the fuit by bringing an original writ of trefpafs 
 quare claufum fregit, for breaking the plaintiff's clofe, vi ef 
 armis ; which by the old common law fubjected 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 other lefs forcible injury. This 
 practice (through cuftom rather than necefllty, and for faving 
 fome trouble and expenfe, in fuing out a fpecial original 
 
 a Ff. 2. 4. 19. 3 Rep. 12. 
 
 adapted
 
 282 PRIVATE BOOK III. 
 
 adapted to the particular injury) ftill continues in almoft all 
 cafes, except in actions of debt ; though now, by virtue of 
 the ftatutes 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 neglects to appear ; or if the fheriff re- 
 turns a nihily or that the defendant hath nothing whereby he 
 may be fummoned, attached, or diftreined ; the capias now 
 ufually iffues P : being a writ commanding the meriff 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 plea of debt, or trefpafs, &c 9 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 tejleti^ not in the king's name, but in that of 
 the chief juftice only. And thefe feveral writs being grounded 
 on the fheriff's return, muft refpectively bear date the feme 
 day on which the writ immediately preceding was returnable. 
 
 THIS is the regular and orderly method of procefs. Bat 
 it is now ufual in practice, to fue out the capias in the firft 
 inftance, upon a fuppofed return of the ftieriff; efpecially if 
 it be fufpected that the defendant, upon notice of the action, 
 will abfcond : and afterwards a fictitious original is drawn 
 up, with a proper return thereupon, in order to give the 
 proceedings a colour of regularity. When this capias is de- 
 livered to the fheriff, he by his under- Iheriff grants a warrant 
 to his inferior officers, or bailiffs, to execute it on the de- 
 fendant. And, if the fheriff of Oxford/hire (in which 
 county the injury is fuppofed to be committed and the actioh 
 is laid) cannot find the defendant in his jurifdiction, he 
 
 , N\ III. , z. 
 
 returns
 
 Ch. 19. WRONGS. 283 
 
 returns that he is not found, non ejl inventus, in his baili- 
 wick : whereupon another writ ifTucs, called a tejlatum capias^^ 
 directed to the flier iff of the county where the defendant is 
 fuppofed to refide, as of Berkfhire, reciting the former writ, 
 and that it Is teftified, tejlatum eft, that the defendaat lurks or 
 wanders in his bailiwick, wherefore he is commanded to take 
 him, as in the former capias. But here alfo, when the action 
 is brought in one county and the defendant lives in another, 
 it is ufual, for faving trouble, time, and expenfe, to make 
 out a tejlatum capias at the firft ; fuppofing not only an ori- 
 ginal, but alfo a former capias, to have been granted, which 
 in fact never was. And this fiction, being beneficial to all 
 parties, is readily acquiefced in and is now become the fettled 
 practice; being one among many inftances to illuftrate that 
 maxim of law, that in fittione juris conjijlit 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 capias. And if 
 the fheriff cannot find the defendant upon the firft writ of 
 capias, and returns a non ejl inventus, there iffues out an alias 
 writ, and after that a plurus, to the fame effect as the for- 
 mer r : only after thefe words " we command you," this 
 claufe is inferted, " as we have formerly," or, " as we have 
 *' often, commanded you ;" "find alias," or, "ficut pluries, 
 " praecepimits" And, if a non eft "inventus is returned upon r.ll 
 of them, then a writ of exigent or exigi facias may he fued 
 out 3 , which requires the (heriff to caufe the defendant to be 
 proclaimed, required, or exacted, 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 exaclus, he lhall 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 
 or another county than that wherein the exigent is fued out, 
 
 q Append. N, III. . 2. Hid, 
 
 r JW4
 
 284 PRIVATE BOOK III. 
 
 a writ of proclamation ' (hall iflue out at the fame time with 
 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 fhall take place. 
 Such outlawry is putting a man out of the protection of the 
 law, fo that he is incapable to bring an action for redrefs of 
 injuries ; and it is alfo attended with a forfeiture of all one's 
 goods and chattels to the king. And therefore, till fomc 
 time after the conqueft, no man could be outlawed but for 
 felony ; but in Bracken's time, and fomewhat earlier, pro- 
 cefs of outlawry was ordained to lie in all actions for trefpafies 
 vi et armis*. And fince, by a variety of ftatutes (the fame 
 which allow the writ of capias before- mentioned) procefs of 
 outlawry doth lie in divers actions that are merely civil ; 
 provided they be commenced by original and not by bill w . If 
 after outlawry the defendant appears publicly, he may be 
 arrefted by a writ of capias utlagatum x , and committed till 
 the outlawry be reverfed. Which reverfal may be had by the 
 defendant's appearing perfonally in court (and in the king's 
 bench without any perfonal appearance, fo that he appears 
 by attorney, according to ftatute 4&5W. & M. c. 18.) 
 and any plaufible caufe, however flight, will in general be 
 fufficient to reverfe it, it being coniidered only as a procefs 
 to compel an appearance. But then the defendant muft pay 
 full cofts, and put the plaintiff in the fame condition, as if 
 he had appeared before the writ of exigi facias was 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 actions of ejedment and tref- 
 pafs, by original writ, with attachment and capias thereon y ; 
 returnable, not at Weftminfter, where the common pleas are 
 now fixed in confequence of magna carta, but " ubicunque 
 " fuerimus tn Anglia" wherefoever the king fhall then be in 
 
 * Append. NO. III. .2. . x Append. N. III. . 2. 
 
 " Co. Litt. iz8. V Rid. N. II. . i. 
 
 w i Sid. 159. 
 
 England j
 
 Ch. 19- WRONG s. 
 
 England ; the king's bench being removeable into any part 
 of England at the pleafure and discretion 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 
 Middlefex; and therefore fo entitled, becaufe the court now 
 fits in that county ; for if it fate in Kent, it would then be a 
 bill of Kent z . For though, as the juftices-of this court have, 
 by it's fundamental conftitution, power to determine all 
 offences and trefpafTes, 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 adminiftjration of juftice 
 by the general commiflions of eyre and of oyer and terminer b y 
 a procefs of it's own became neceffary, 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 trefpafs 
 quare daufumfregit, entered on the records of the court d ) is 
 a kind of capias, directed to the fheriff of that county, and 
 commanding him to take the defendant, and have him before 
 our lord the king at Weftminfter 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 jurifdidion 
 in other civil caufes, as was formerly obferved j 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 
 jurifdi&ion, it is not neceffary that the defendant be actually 
 the mar/hall's prifoner j for, as foon as he appears, or puts 
 in bail, to the procefs, he is deemed by fo doing to be in fuch 
 cuftody of the marfhal, as will give the court a jurifdi&ion 
 to proceed e . And, upon thefe accounts, in the bill or pro- 
 
 z Thus, when the court fate at Ox- b tm.jArjt.jvriffi8ian.fi6, 3 Inft.z?, 
 
 ford, by rtafcn of the plague, Mich. 1665. c Append. N. III. .3. 
 
 the procefs was by bill of Oxfardfh'irt. d Tryc's^/i Filtxjar, 98. 
 
 Trye's Jus FUixar. 101. e 4 Inft. 71. 
 
 Bro. ,<fr. t, cyer t& dtterntimr, 8^ 
 
 cefs
 
 286 PRIVATE BOOK III. 
 
 cefs a complaint of trefpafs is always fuggefted, whatever elfc 
 may be the real caufe of adtion. This bill of Middlefex muft 
 be ierved on the defendant by the fheriff, if he finds him in 
 that county : but, if he returns " non eft inventus" then 
 there iffues out a writ of latitat f , to the fheriff of another 
 county, as Berks ; which is fimilar to the teftatum capias in 
 the common pleas, and recites the bill of Middlefex and the 
 proceedings thereon, and that it is teftified that the defendant 
 " latitat et difcurrit" lurks and wanders about in Berks ; and 
 therefore commands the fheriff to take him, and have his 
 body in court on the day of the return. But, as in the com- 
 mon pleas the teftatum capias may be fued out upon only a 
 fuppofed, and not an actual, preceding capias ; fo in the 
 king's bench a latitat is ufually fued out upon only a fuppofed, 
 and not an actual, bill of Middlefex. So that, in fadr,, a la- 
 titat may be called the firft procefs in the court of king's 
 bench, as the teftatum capias is in the common pleas. Yet, 
 as in the common pleas, if the defendant lives in the county 
 wherein the action is laid, a common capias fuffices ; fo in 
 the king's bench likewife, if he lives in Middlefex, the pro- 
 cefs muft ftill be by bill of Middlefex only. 
 
 IN the exchequer the firft procefs is by writ of quo minus t 
 in order to give the court a jurildiction over pleas between 
 party and party. In which writ g 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 fufficiens exiftit^ 
 by which .he is the lefs able, to pay the king his rent, or 
 debt. And upon this the defendant may be arrefted as upon 
 a capias from the 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 
 of king's bench and exchequer to hold plea in fubje&s caufes, 
 which by the original Confutation of Weftminfter-hall they 
 were' not empowered to do. Afterwards, when the caufe is 
 once drawn iato the refpeftive courts, the method of purfu- 
 ing it is pretty much the fame in all of them. 
 
 f Append. N. III. . 3. E Hid. . 4. 
 
 IF
 
 Ch. 19, W II D N G S. 287 
 
 If the fheriff 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 
 action might be. For, not having obeyed the original fum- 
 mons, he had (hewn a contempt of the court, and was no 
 longer to be trufted at large. But when the fummons fell 
 into difufc, and the -capias became in fact the firft procefs, it 
 was thought hard to imprifon a man for a contempt which 
 was only fuppofed : and therefore in common cafes by the 
 gradual indulgence of the courts (at length authorized by 
 ftatute 12 Geo. I. c. 29. which was amended by ftatute 
 5 Geo. II. c. 27. and made perpetual by ftatute 21 Geo. II. 
 c. 3.) the fheriffor his 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 
 this ation ; which in effecY reduces it to a mere fummons. 
 And if the defendant thinks proper to appear upon this no- 
 tice, his appearance is recorded, and he puts in fureties for his 
 future attendance and obedience ; which fureties are called 
 common bail, being the fame two imaginary perfons that were 
 pledges for the plaintiff's profecution, John Doe and Richard 
 Roe. Or, if the defendant does not appear upon the return 
 of the writ, or within four (or in fome cafes, eight) days 
 after, the plaintiff may enter an appearance for him, as if he 
 had really appeared ; and may file common bail in the de- 
 fendant's name, and proceed thereupon as if the defendant 
 ijad done it himfelf. 
 
 BUT if the plaintiff will make affidavit, or affert upon 
 oath, that the caufe of a&ion amounts to ten pounds or up- 
 wards, then in order to arreft the defendant, and make him 
 put in fubftantial fureties for his appearance, called fpcclal 
 bail, it is required by ftatute 13 Car. II. ft. 2. c. 2. that the 
 true caufe of action mould be exprefled in the body of the 
 writ or procefs : elfe no fecurity can be taken in a greater 
 Cum than 40 /. This ftatute (without any finch intention 
 in the makers) had like to 'have oufted the king's bench of 
 
 all
 
 288 PRIVATE BOOK III. 
 
 all it's jurifdiction over civil injuries without force : for, as 
 the bill of Middlefex was framed only for actions of trefpafs, 
 a defendant could not be arrefted and held to bail thereupon 
 for breaches of civil contracts. 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 etiam to the ufual 
 complaint of t&efpafs j the bill of Middlefex commanding 
 the defendant to be brought in to anfwer fhe plaintiff of a 
 plea of trefpafs, and alfo to a bill of debt f : 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 
 etiam might be alfo added to the writ of capias, containing 
 the true caufe of action ; as, " that the faid Charles the de- 
 " fendant may anfwer to the plaintiff of a plea of trefpafs in 
 " breaking his clofe : and alfo, , ac etiam^ may anfwer him, 
 " according to the cuftom of the court, in a certain plea of 
 " trefpafs upon the cafe, upon promifes, to the value of 
 " twenty pounds, &c g ." The fum fworn to by the plaintiff 
 is marked upon the back of the writ j and the fheriff, or his 
 officer the bailiff, is then obliged actually to arreft or take 
 into cuftody the body of the defendant, and, having fo done, 
 to return the writ with a cepi corpus endorfed thereon. 
 
 AN arreft muft 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 j but muft watch his opportunity to arreft 
 him. For every man's houfe is looked upon by the law to be 
 his caftle of defence and afylum, wherein he fhould fuffer 
 no violence.* 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 h . Peers of the realm, members 
 
 f Trye's Jus Filixar. ioz, Append. B Lilly praft. Reg. t.atetiam, North's 
 N* 3. . 3. life of lord Guilford. 99. 
 
 h Ff, 2.4. 1821. 
 
 Of
 
 th. 19.' WRONG s." 289 
 
 of parliament, and corporations., are privileged from arrefts ; 
 and of courfe from outlawries '. And againft them the procefs 
 to inforce an appearance muft be by fummons and diftrefs 
 infinite k , inftead of a capias. Alfo clerks, attorneys, and 
 all other perfons attending the courts of juftice (for attorneys, 
 being officers of the court, are always fuppofed to be there 
 attending) are not liable to be arrefted by the ordinary procefs 
 of the court, but muft be fued by bill (called ufually a bill of 
 privilege) as being perfonally prefent in court '. Clergymen 
 performing divine fervice, and not merely flaying in the 
 church with a fraudulent defign, are for the time privileged 
 from arrefts, by ftatute 50 Edw. III. c. 5. and i Ric. II. 
 c. 16. as likewife members of convocation actually attending 
 thereon, by ftatute 8 Hen. VI. c. i. Suitors, witnefles, and 
 other perfons, neceflarily attending any courts of record upon 
 bufinefs, are not to be arrefted during their actual attend- 
 ance, which includes their necefTary coming and returning. 
 And no arreft can be made in the king's prefence, nor within 
 the verge of his royal palace, nor in any place where the 
 king's juftices are actually fitting. The king hath moreover 
 a fpecial prerogative, (which indeed is very feldom exerted" 1 ) 
 that he may by his writ of proteftion privilege a defendant 
 from all perfonal, and many real, fuits for one year at a time, 
 and no longer ; in refpecl: of his being engaged in his fervice 
 out of the realm ". And the king alfo by the common law 
 might take his creditor into his-'prote&ion, 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. 
 protection, another creditor may proceed to judgment againft 
 
 > V/hitelock of parl. 206, 207. "in her fervice, that was fubjeft to 
 
 * See pa.:e 280. "other mens a&ionsj left fhe might 
 
 I Bro. Akr. t.bllle. 29. izMod. 163. "bethought to delay juftice." But 
 
 *> Sir Edward Coke informs us, king William, in 1691, granted one to 
 
 (i Inft. 131.) th.it herein "he could lord Cults, to protect him from being 
 
 "Yay nothing of his own experience ; outlawed by his taylor: (3 Lev. 332.) 
 
 " for albeit queen Elizabeth maintained which is the laft that appears upon our 
 
 " many wars, yet (he granted few or no books. 
 
 " protections : and her reafon was, that Finch. L. 454. 3 Lev. 332. 
 " be was no fit fubjeft to be employed F. N, B. 18. Co, Litt. 131. 
 
 VOL. IIL T him,
 
 PRIVATE BOOK III. 
 
 him, with a ffay of execution, till the king's debt be paid ; 
 unlefs fuch creditor will undertake for the king's debt, and 
 then he {hall 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 r felony, or breach of the 
 peace. 
 
 WHEN the defendant is regularly arrefted, he muft either 
 go to prifon, for fafe cuftody j or put in fpecial bail to the 
 JherifF. 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 fheriff detains his perfon, 
 or takes fufficient fecurity for his appearance, called bail 
 (from the French word, bailler, to deliver) becaufe the de- 
 fendant is bailed, or delivered, to his fureties, upon their 
 giving fecurity for his appearance j and is fuppofed to con- 
 tinue in their friendly cuftody inftead of going to gaol. The 
 method of putting in bail to the fheriff is by entering into a 
 bond or obligation, with one or more fureties (not fictitious 
 perfons, as in the former cafe of common bail, but real, 
 fubftantial, refponfible bondfmen) to infure the defendant's 
 appearance at the return of the writ ; which obligation is 
 called the bail bond 9 . The fheriff, if he pleafes, may let the 
 defendant go without any fureties j but that is at his own 
 peril : for, after once taking him, the fheriff is bound to- 
 keep him fafely, fo as to be forthcoming in court j. otherwife 
 an action lies againft him for an efcape. But, on the other 
 hand, he is obliged, by ftatute 23 Hen. VI. c. 10. to take 
 (if it be tendered) a fufficient bail-bond : and, by ftatute 
 12 Geo. I. c. 29. the fherifffhall 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, 
 the defendant muft appear according to the exigency of the 
 writ. This appearance is effected by putting in and juftifying 
 bail to the aftion ; which is commonly called putting in bail 
 ebove* If this be not done, and the bail that were taken by 
 
 P Append. N, III. .. 5. 
 
 the
 
 Ch. 19. WRONG s. 291 
 
 the fheriff below are refponfible perfons, the plaintiff may 
 take an alignment from the fheriff of the bail-bond (under 
 the ftatute 4 & 5 Ann. c. 16.) and bring an aclion thereupon 
 againft the fheriff's bail. But if the bail, fo accepted by the 
 fheriff, be infolvent perfons, the plaintiff may 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 fufficient bail to be put in above, he will himfelf be 
 refponfible to the plaintiff. 
 
 THE bail abcve^ or bail to the affion, muft be put in either 
 in open court, or before one of the judges thereof j or elfe, 
 in the country, before a commiffioner 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, whereby they do jointly 
 and feverally undertake, that if the defendant be condemned 
 in the action he (hall pay the cofts and condemnation, or 
 render himfelf a prifoner, or that they will pay it for him : 
 which recognizance is tranimitted to the court in a flip of* 
 parchment entitled a bail piece'. And, if required, the bail 
 muft jujiify themfelves in court, or before the commiflioner 
 in the country, by fwearing themfelves houfe-keepers, and 
 each of them to be worth double the Aim for which they are 
 bail, after payment of all their debts. This anfwers in fome 
 meafure to the Jllpulatio or fatifdatto of the Roman laws % 
 which is mutually given by each litigant party to the other : 
 by the plaintiff, that he will profecute his fuit, and pay the 
 cofts if he lofes his caufe ; in like manner as our law ftill 
 requires nominal pledges of profecution from the plaintiff: 
 by the defendant, that he fhall continue in court, and abide 
 the fentence of the judge, much like our fpecial bail ; but 
 with this difference, that the fidejujjores were there abfblutely 
 bound judicatum folvergy to fee the cofts and condemnation 
 
 1 Append. N. 111. . 5. Jnjt. /. 4. M I. Ff./.z, t, 8. 
 
 au. 
 
 T 2 paid
 
 292 PRIVATE BOOK III. 
 
 paid at all events : whereas our fpecial bail may be difcharg- 
 cd, 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 apprehend him l . 
 
 SPECIAL bail is required (as of courfe) only upon actions 
 of debt, or actions on the cafe in trover or for money due, 
 where the plaintiff can fwear that the caufe of action amounts 
 to ten pounds : but in actions where the damages are preca- 
 rious, being to be aflefled ad libitum by a jury, as in actions 
 for words, ejectment, or trefpafs, it is very feldom poflible 
 for a plaintiff" to fwear to the amount of his caufe of action ; 
 and therefore no fpecial bail is tSjken thereon, unlefs by a 
 judge's order or the particular directions of the court, in 
 fome peculiar fpecies of injuries, as in cafes of mayhem or 
 atrocious battery; or upon fuch fpecial circumftances, as 
 make it abfolutely necefTary that the defendant fhould be 
 kept within the reach of juftice. Alfo in actions againft 
 heirs, executors, and adminiftrators, for debts of the de- 
 ceafed, fpecial bail is not demandable ; for the action is not 
 fo properly againft them in perfon, as againft the effects of 
 the deceafed in their pofleffion. But fpecial bail is required 
 even of them, in actions for a devajiavit^ or wafting the 
 goods of the deceafed ; 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 fliall confider at large 
 in the next chapter. 
 
 t 2 Show, zoa, Mod, 251,
 
 PI. 20; JV K. o N c s,; 293 
 
 CHAPTER THE TWENTIETH. 
 
 OF PLEADING. 
 
 PLEADINGS are the mutual altercations between 
 the plaintiff and defendant; which at prefent are fet 
 down and delivered into the proper office in writing, though 
 formerly they were ufually put in by their counfel oretenus^ or 
 viva voce, in court, and then minuted down by the chief 
 clerks, or prothonotaries ; whence in our old law French 
 the pk-adings are frequently denominated the paral. 
 
 THE firft of thefe is the declaration^ narratio or count, 
 antiently called the talc*; in which the plaintiff fets forth 
 his caufe of complaint at length : being indeed only an am- 
 
 & O O J 
 
 plification or expofition of the original writ upon which his 
 action is founded, with the additional circumftances of time 
 and place, when and where the injury was committed. But 
 we may remember b 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 jurifdicYion, 
 the plaintiff may declare in whatever action, 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 foalfo, in order to have the benefit of 
 a capias to fecure the defendant's perfon, it was the antient 
 practice and is therefore flill warrantable in the common 
 
 Append. N. II. . 2. N. III. ^ 6. b See nag. 285. 488. 
 
 T 3 pleas,
 
 294 PRIVATE BOOK III. 
 
 pleas, to fue out a writ of trefpafs quare claufum freglt^ for 
 breaking the plaintiff's clofe: and when the defendant is once 
 brought in upon this writ, the plaintiff declares in whatever 
 action the nature of his actual injury may require ; as an 
 action of covenant, or on the cafe for breach of contract, or 
 other lefs forcible tranfgreflion e : unlefs, by holding the de- 
 fendant to bail on a fpecial ac ftiam, he has bound himfelf to 
 declare accordingly. 
 
 IN local actions, where poffeflion of land is to be recovered, 
 or damages for an aclual trefpafs, or for wafte, sV, 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 ; but in tranfitory actions, 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 in that county in which 
 the declaration is laid. Though if the defendant will make 
 affidavit, that the caufe of action, if any, arofe not in that 
 but in another county, the court will direct a change of the 
 venue or vifne, (that is, the vicinia or neighbourhood in 
 which the injury is declared to be done) and will oblige the 
 plaintiff to declare in the proper county. For the ftatute 
 6 Ric. II. c. 1. having ordered all writs to be laid in their 
 proper counties, this, as the judges conceived, impowered 
 them to change the iienue^ if required, and not to infift ri- 
 gidly on abating- the writ : which practice began in the reign 
 of James the firft d , And this power is difcretionally exer- 
 cifed, fo as not to caufe but prevent a defect of juftice. 
 Therefore the court will not change the venue to any of the 
 four northern counties, previous to the fpring circuit; be- 
 caufe there the aflifes are holder, only once a year, at the time 
 of the fumriier circuit. And it will fometimes remove the 
 venue from the proper jurifdiction, (efpecially of the narrow 
 and limited kind) upon a fuggeftion, duly fupported, that a 
 fair and impartial trial cannot be had therein . 
 
 c 2 Ventr. 259. e Stra. 8-4. Mylcck v. Saladinc. 
 
 * 2 Salk. 670. Triii. 4 Ceo. III. B. R. 
 
 IT
 
 Ch. 20. WRONGS, 295 
 
 IT is generally ufual in actions upon the cafe to fet forth fe- 
 veral cafes, by different counts in the fame declaration j fo that 
 if the plaintiff fails in the proof of one, he may fucceed in 
 another. As, is an action on the cafe upon an affiimpfit for 
 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 twenty pounds : ami 
 left he fhould fail in the proof of this, he counts likewifeupon 
 a quantum valebant ; 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 fourdifferent fhapes ; and at laft concludes 
 with declaring, that the defendant had refufed to fulfil 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 proportionable 
 damages. This declaration always concludes with thefe 
 words, " and thereupon he brings fint^ &c. " inde producit 
 *' feftani) &c." By which words, fuit orfetta, (afequendo) 
 were antiently underftood the witneffes or followers of the 
 plaintiff f . For in former times the law would not put the de- 
 fendant to the trouble of anfwering the charge, till the plaintiff 
 had made out at leaft a probable cafe s. But the actual produc- 
 tion of the fuit, ihefefla, or 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 plaintiffs 
 common pledges of profecution, John Doe and Richard Roe y 
 which, as we before obferved h , are now mere names of form ; 
 though formerly they were of ufe to anfwer to the king for 
 the amercement of the plaintiff, in cafe he were nonfuited, 
 barred of his action, or had a verdict and judgment againft 
 him \ For, if the plaintiff neglects to deliver a declaration 
 for two terms after the defendant appears, or is guilty of other 
 delays or defaults againft the rules of law in any fubfequent 
 
 f Seld. on Forfeit, c. ai. h See pag. a? 5. 
 
 g Brad. 400. Flct. /. ^. c. C, ' 3 Bulftr. 275, 4lnft, 189. 
 
 T 4 foge
 
 PRIVATE BOOK III. 
 
 ftage of the a&ion, he is adjudged not to follow or purfue his 
 remedy as he ought to do, and thereupon a nonfuit, or non 
 profequitur, is entered ; and he is faid to be nonprof'd. And 
 for thus deferring his complaint, after making a falfe claim or 
 complaint (pro falfe clamor e fuo) he fhall not only pay cofts 
 to the defendant, but is liable to be amerced to the kin?. A 
 
 O 
 
 retraxit differs from a non-fuit, in that the one is negative, and 
 the other pofttive : the nonfuit is a 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 lofes his a&ion. A dif-continuance is fomewhat fimilar to 
 a nonfuit : for when a plaintiff 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 
 ppocefs, by fuing out a frefh writ from the fucceffor ; the virtue 
 of the former writ being totally gone, and the defendant no 
 longer bound to attend in confequence thereof: but, to pre- 
 vent the expenfe as well as delay attending this rule of law, 
 the ftatute i Edw. VI. c. 7. enacts, that by the death of the 
 king no adlion {hall be difcontinued ; but all proceedings, 
 lhall ftand good as if the fame king had been living. 
 
 the plaintiff hath ftated his cafe in the declaration, 
 it is incumbent on the defendant within a reafonable time to 
 make his defence and to put in a pica; or elfe the plaintiff will at 
 once recover judgment by default^ oinihildicit of thedefendant. 
 
 DEFENCE, init'strue legal fenfe, fignifies not a juftification, 
 protection, or guard, which is nowit ; s popular fignification; 
 but merely an oppofmg or denial (from the French verb defender) 
 of the truth or validity of the complaint. It is the contejlatio- 
 Jitisof the civilians : a general affertion that the plaintiff hath 
 no ground of action, which aflertion is afterwards extended 
 
 and
 
 Ch. 20. WRONG s. 297 
 
 and maintained in his plea. For it would be ridiculous to 
 fuppofe that the defendant comes and defends (or, in the vul- 
 gar acceptation, juftifies) the force and injury, in one line, 
 and pleads that he is not guilty of the trefpafs complained of, 
 in the next. And therefore in actions of dower, where the 
 demandant does not count of any injury done, but merely de- 
 mands her endowment 11 , and in affifes of land, where alfo 
 there is no injury alleged, but merely a queftion of right ftated 
 for the determination of the recognitors or jury, the tenant 
 makes no fuch defence '. In writs of entry m , where no injury 
 is ftated in the count, but merely the right of the demandant 
 and the defective title of the tenant, the tenant comes and 
 defends or denies his right, jus fuum that is (as I underftand 
 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 fuggefted 
 by the count of the demandant. And in writs of right "the 
 tenant always comes and defends the right of the demandant 
 and his feifm, jus praedifti S. et feifinam ipfius , (or elfe the 
 feifin 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 counts?. 
 All which is extremely clear, if we underftand by defence an 
 oppofition or denial, but is otherwife inexplicably difficult 9. 
 
 THE courts were formerly very nice and curious with ref- 
 pe6t to the nature of the defence, fo that if no defence was 
 made, though a fufHcient plea was pleaded, the plaintiff fhould 
 recover judgment r : and therefore the book, entitled novae 
 nnrrationes or the new talys*, at the end of almoft every count, 
 narratio, or tale, fubjoins fuch defence as is proper for the de- 
 fendant to make. For a general defence or denial was not 
 prudent in every fituation, fmce 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 
 
 11 Raflal. entr. 234. 1 The true reafon of this, fays Booth, 
 
 ' Euoth of real actions, 118. (on real actions. 94. uz ) I could never 
 
 m Vol. II. append. N". V. . 2, yet find. 
 
 Append. N. I, . 5. r Co. Litt. 127. 
 
 * Co. Entr. iSz. <r<&. $534, 
 
 f -^Vw. Narr. 230. edit, 1554. the
 
 298 PRIVATE BOOK III. 
 
 the defendant waved all pleas of mifnofmer 1 ; by defending 
 the damages, all exceptions to the perfon of the plaintiff ; 
 and by defending either one or the other when and where it 
 fliould behove him, he acknowleged the jurifdi&ion of the 
 court u . But of late years thefe niceties have been very de- 
 fervedly difcountenanced w ; though they ftill feem to be law, 
 if infifted on 1 . 
 
 BEFORE defence made, if at all, cognizance of the fuit muft 
 be claimed or demanded ; when any perfon or body corporate 
 hath the franchife, not only of holding pleas within a particu- 
 lar limited jurifdi&ion, but alfo of the cognizance of pleas : 
 and that, either without any words exclufive of other courts, 
 which entitles the lord of the franchife, whenever any fuit 
 that belongs to his jurifdiction is commenced in the courts 
 at Weftminfter, to demand the cognizance thereof; or with 
 fuch exclufive words, which alfo entitle the defendant to 
 plead to the jurifdiclion of the court * '. Upon this claim of 
 cognizance, if allowed, all proceedings fhall ceafe in the fu- 
 perior court, and the plaintiff is left at liberty to purfue his 
 remedy in the fpecial jurifdiclion. As, when a fcholar or 
 other privileged perfon of the univerfities of Oxford or Cam- 
 bridge is impleaded in the courts at Weftminfter, for any 
 c;iu!e of action whatibever, unlefs upon a queftion of free-, 
 hold z . In thefe cafes, by the charter of thofe learned bo-- 
 dies, confirmed by act of parliament, the chancellor or vice- 
 chancellor may put in a claim of cognizance ; which, if made 
 in due time arid form, and with due proof of the facts alleged, 
 is regularly allowed by the courts *. It muft be demanded 
 before full defence is made h or imparlance prayed ; for thefe 
 are a fubmiffion to the jurifdiction of the fuperior court, and 
 the delay is a laches in the lord of the franchife : and it will 
 Hot be allowed if it occafions a failure of juftice c , or if an 
 
 4 Theloal. dig. /. 14. c, i.fag. 357. mijire cu trier lour fie. (Mdd.ter.end.cur. 
 
 En la defence font iij chafes enten* 408. edit. 1534 J See alfoCo. Litt. 117. 
 
 dantz. '. ft:r tant qu\l defends tort et force, w Salk.ai7. Lord Raym. 281. 
 
 borne doyt entendre quit ft excufe de tort a * Carth. 230. Lord Raym. 1 1 7. 
 
 luy furmys fcr counts, et fait fe partie 7 z Lord. Raym. 836. 10 Mod. 126, 
 
 el pie ; et per tant qml dcfende les dama- z See pag. 83. 
 
 get, il affirm, If parte able dejtre reffondu \ a Hardr. 505. 
 
 et per taut qu'i! d< finds ou et quant il de- b Raft. Entr. iz8, V. 
 
 il accefle la faiar de ceurle de - c 2 Ventr, 363, action.
 
 Ch. 20. WRONGS. 299 
 
 adion be brought againft the perfon himfelf who claims the 
 franchife, unlefs he hath alfo a power in fuch cafe of making 
 another judge d . 
 
 AFTER defence made, the defendant muft put in his plea. 
 But, before he defends, if the fuit is commenced by capias 
 or latitat, without any fpecial original^ he is entitled to de- 
 mand one importance % or licentia lo^uendi ; and may, before 
 he pleads, have more granted by corifent of the court ; to fee 
 if he can end the matter amicably without farther fuit, by 
 talking with the plaintiff: a practice, which is f fuppofed to 
 have arifen from a principle of religion, in obedience to that 
 precept of the gofpel, " agree with thine adverfary quickly, 
 " whilft thou art in the way with him e ." And it may beob- 
 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 
 they were in the way^ or going to the praetor j in via, rem 
 uti pacunt orato. There are alfo many other previous fteps 
 which may be taken by a defendant before he puts in his plea. 
 He may, in real adtions, demand a view of the thing in quef- 
 tion, in order to afcertain it's identity and other circum- 
 ftanccs. He may crave oyer h of the writ, or of the bond, or 
 other fpecialty upon which the action is brought j that is to 
 bear it read to him ; the generality of defendants in the times 
 of antient fimpl'city being fuppofed incapable to read it them- 
 felves : whereupon the whole is entered verbatim upon the 
 record, and the defendant may take advantage of any condition 
 or other part of it, not ftated in the plaintiff's declaration. 
 
 d Hob Sy. Yearbook, M. 8 Htn. VI. et il dit, " judica me;" et Hi Jifcyent, 
 
 IO. In this latter cafe the chancellor of " non foj/lmiu, yuia cafue ecclefiae j 
 
 Oxford claimed cognizance of an aclion "judica teipfian :" ct /'apt/Id' dit, "ju- 
 
 of trefpafs brought againft hiinfelfj '* dico me cremari f et fuit combujlut\ 
 
 which was dif.i'lowed, bccaufe he fliould et apres fuit vnfaincl. Et in ceo cat il 
 
 not be judge in his own caufe. The ar- fi.lt fin juge demene, et ijjint nefl pas in- 
 
 gument ufed by ferjeantRolfe, on behalf convenient queun home foil juge dlmd'.s. 
 
 of the cognizance, is curious and wcrth e Append. N. III. . 6. 
 
 tranfcribing. "Jeo -vous dirai un fable. f Gilb. Hift. Com. PI. 35. 
 
 En afc:;n temps fuit un f'ipe, et a-vcit g Matth. v. 25. 
 
 fait un grand offence, et le cardinals i:\n- h ^ppfnd, N. III. 6. 
 drtnt e lnj et diftynt a luy, " pecca/li; " 
 
 In
 
 $00 PRIVATE BOOK III. 
 
 In real actions alfo the tenant may pray in aid, or call for af- 
 fiftance of another, to help him to plead, becaufe of the fee- 
 blenefs or imbecillity of his own eftate. Thus a tenant for 
 life may pray in aid of him that hath the inheritance in re- 
 mainder or revcrfion ; and an incumbent may pray in aid of 
 the patron and ordinary : that is, that they fhall be joined in 
 the action and help to defend the title. Voucher alfo is the 
 calling in of fome perfon to anfwer the action, that hath 
 warranted the title to the tenant or defendant. This we ftill 
 make ufe of in the form of common recoveries *, which are 
 grounded on a writ of entry j a fpecies of action that we may 
 remember relies chiefly on the weaknefs of the tenant's title, 
 who therefore vouches another perfon to warrant it. K the 
 vouchee appears, he is made defendant inftead of the voucher: 
 but, if he afterwards makes default, recovery fhall be had 
 againft the original defendant j and he fhall recover over an 
 equivalent in value, againft the deficient vouchee. In aflifes 
 indeed, where the principal queftion is whether the demand- 
 ant or his anceftors were or were not in pofleflion till the oufter 
 happened, and the title of the tenant is little (if at all) dif- 
 cufied, there no voucher is allowed ; but the tenant may 
 bring a writ of ivarrantia chartae againft the warrantor, to 
 compel him to affift him with a good plea or defence, or elfe 
 to render damages and the value of the land, if recovered 
 againft the tenant k . In many real actions alfo ', brought by 
 or againft an infant under the age of twenty one years, and 
 alfo in actions of debt brought againft him, as heir to any de- 
 ceafed anceftor, either party may fuggeft the nonage of the in- 
 fant, and pray that the proceedings may be deferred till his 
 full age, or in our legal phrafe that the infant may have his 
 age, and that the parol may demur, that is, that the pleadings 
 may be ftaid ; and then they (hall not proceed till his full age, 
 unlefs it be apparent that he cannot be prejudiced thereby" 1 . 
 But, by the ftatutes of Wcftm. i. 3 Edw. I. c. 46. and of 
 Glocefter 6 Edw. I. c. 2. in writs of entry fur dijjeifm in 
 fome particular cafes, and in actions aunceftrel brought by 
 
 i Vol. II. append. N. V. . a. ' Dyer. 137. 
 
 k F. N. B. 135. n Finch. L. 360. 
 
 an
 
 Ch. 20. WRONGS, got 
 
 an infant, the parol {hall not demur : otherwife he might l>e 
 deforced of his whole property, and even want a maintenance, 
 till he came of age. So likewife in a writ of dower the heir 
 (hall not have his age ; for it is neceflary that the widow's 
 claim be immediately determined, elie fhe may want a pre- 
 fent fubfiftence n . Nor {hall an infant patron have it in a 
 quare impedit , fince the law holds it neceflary and expedient, 
 that the church be immediately filled. 
 
 WH E N thefe proceedings are over, the. defendant mult 
 then put in his excufe or plea. Pleas are of two forts ; di- 
 latory pleas, and pleas to the aflion. Dilatory pleas are fuch 
 as tend merely to delay or put off" the fuit, by queftioning 
 the propriety of the remedy, rather than by denying the in- 
 jury : pleas to the action are fuch as difpute the very caufe 
 of fuit. The former cannot be pleaded after a general im- 
 parlance, which is an acknowlegement of the propriety of 
 the action. For imparlances are either general^ of which we 
 have before fpoken, and which are granted of courfe ; or 
 fpecial, with a faving of all exceptions to the writ or count, 
 which may be granted by the prothonotary ; or they may be 
 ftill more fpecial^ with a faving of all exceptions whatfoever, 
 which are granted at the difcretion of the court p . 
 
 i. DILATORY pleas are, i. To the jurifdi&ion of the 
 court : alleging, that it ought not to hold plea of this in- 
 jury, it arifing in Wales or beyond fea j or becaufe the land 
 in queftion is of antient demefne, and ought only to be de- 
 manded in the lord's court, &c. 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 praetnunire, net 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 
 
 n i Roll. Abr. 137, P ia Mod. $1$, 
 
 JM, 138, 
 
 writ
 
 302 PRIVATE Boo Kill, 
 
 writ, or the count, for fome defect in one of them ; as by 
 mifnaming the defendant, which is called a niifnofmer ; giving 
 him a wrong addition, as ejquire inftead of knight ; or other 
 want of form in any material refpect. Or, it may be, that 
 the plaintiff is dead ; for the death of either party is at once 
 an abatement of the fuit. And in actions merel, perfonal, 
 arifing ex deliElo^ for wrongs actually done or committed by 
 the defendant, as trefpafs, battery, and {lander, the rule is 
 that aiio perfonalis moritur cum ferfonai j and it never fhall 
 be revived either by or againft the executors or other repre- 
 fentatives. For neither the executors of the plaintiff have 
 received, nor thofe of the defendant have committed, in their 
 own perfonal capacity, any manner of wrong or injury. But 
 in actions arifing ex contraRu^ by breach of promife and the 
 like, where the right defcends to the reprefentatives of the 
 plaintiff, and thofe of the defendant have affets to anfwer 
 the demand, though the fuits fhall abate by the death of the 
 parties, yet they may be revived againft or by the executors r ; 
 being indeed rather actions againft the property than the per- 
 fon, in which the executors have now the fame intereft that 
 their teftator had before. 
 
 THESE pleas to the jurifdiction, to the difability, or in 
 abatement, were formerly very often ufed as mere dilatory 
 pleas, without any foundation of truth, and calculated only 
 for delay ; but now by ftatute 4 & 5 Ann. c. 16. no dilatory 
 plea is to be admitted, without affidavit made of the truth 
 thereof, or fome probable matter {hewn to the court to induce 
 them to believe it true. And with refpect to the pleas them- 
 felves, it is a rule, that no exception fhall be admitted againft 
 a declaration or writ, unlefs the defendant will in the fame 
 plea give the plaintiff a better s ; that is, fhew him how it 
 might be amended, that there may not be two objections 
 upon the fame account. 
 
 1 4 Inft. 315. s firownl. 139. 
 
 1 Mar. 14. 
 
 ALL
 
 Ch, 20. WRONG s. 303 
 
 ALL pleas to the jurifdi&ion conclude to the cognizance 
 of the court j praying *' judgment, whether the court will 
 *' have farther cognizance of the fuit :" pleas to the difabi- 
 lity conclude to the perfon j by praying " judgment, if the 
 " faid A the plaintiff ought to be anfwered :" 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," cajjetur^ 
 made void, or abated : but, if the action 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 jrifdi6tion ; 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 r , or to amend and 
 new frame his declaration. But when on the other hand 
 they are overruled as frivolous, the defendant has judgment 
 of refpondeat oujler^ or to anfwer over in fome better manner. 
 It is then incumbent on him to plead 
 
 2. A PLEA to the aftion ; that is, to anfwer to the merits 
 of the complaint. This is done by confeffing 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 cre- 
 ditor haraffes his debtor with an action, it then becomes ne- 
 ceflary for the defendant to acknowlege the debt, and plead 
 the tender ; adding that he has always been ready, tout temps 
 prijl^ and ftill is ready, uncore priji^ to difcharge it : for a 
 tender by the debtor and refufal by the creditor will in all 
 cafes difcharge the cofts v , but not the debt itfelf j though in 
 fome particular cafes the creditor will totally lofe his money u . 
 
 t Co. Entr. 271. u Lift. . 338. Co. Litt. 209. 
 
 v i Vent, a i. 
 
 But
 
 '304 PRIVATE BOOK III; 
 
 But frequently the defendant confefles one part of the com- 
 plaint (by a cognovit aftionem in refpect thereof) and traverfes 
 or denies the reft : in order to avoid the expenfe of carrying 
 that part to a formal trial, which he has no ground to liti- 
 gate. A fpecies of this fort of confeflion is the payment of 
 money into court : which is for the moft part neceffary 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^ (the perfect tenfe of the verb affido] being 
 a voluntary oath before fome judge or officer of the court, to 
 evince the truth of certain facts, upon which the motion is 
 grounded : though no fuch affidavit is neceflary for payment 
 of money into court. If, after the money paid in, the 
 plaintiff proceeds in his fuit, it is at his own peril : for, if 
 he does not prove more due than is fo paid into court, he fhall 
 be nonfuited and pay the defendant cofts ; but he fhall ftill 
 have the money fo paid in, for that the defendant has acknow- 
 leged to be his due. In the French law the rule of practice 
 'Is grounded upon principles fomewhat fimilar to this; for 
 there, if a perfon be fued for more than he owes, yet he lofes 
 his caufe if he does not tender fo much as he really does owe w . 
 To this head may alfo be referred the practice of what is 
 called a fet-cff: whereby the defendant acknowleges the juf- 
 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 \izpleads fuch fet-off, 
 muft pay the remaining ballance into court. This anfwers 
 
 * Sp. L. b. 6. c. 4. 
 
 very
 
 Ch. 20. WRONG s." 305 
 
 very nearly to the compenfatio, orftoppage, of the civil law *, 
 and depends on the ftatutes 2 Geo. II. c. 22. and 8 Geo. II. 
 c. 24. which ena&, that, where there are mutual debts be- 
 tween the plaintiff and defendant, one debt may be fet againft 
 the other, and either pleaded in bar, or given in evidence 
 upon the general iffue at the trial ; which fhall operate as 
 payment, and extinguifh fo much of the plaintiff's demand. 
 
 PLEAS, that totally deny the caufe of complaint are either 
 the general iffue, or a fpecial plea, in bar. 
 
 i. THE general iffue, or general plea, is what traverfes, 
 thwarts, and denies at once the whole declaration ; without 
 offering any fpecial matter whereby to evade it. As in tref- 
 pafs either vi et armis^ or on the cafe, non culpability not 
 guilty y ; in debt upon contract, nikildebet, he owes nothing; 
 in debt on bond, non eft facJum^ it is not his deed ; on an 
 ajjumpfity non ajjumpfit, he made no fuch promife. Or in real 
 actions, nul tort, no wrong done ; nul dijjeifin^ no diffeifm ; 
 and in a writ of right, the mife or iffue 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 ; by 
 which we mean a facl 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 diftinguifh away or palliate the 
 charge, it was always ufual to fet forth the particular fats in 
 what is called a^>m'tf/plea; which was originally intended 
 to apprize the court and the adverfe party of the nature and 
 circumftances of the defence, and to keep the law and the 
 fact diftincl:. And it is an invariable rule, that every defence, 
 which cannot be thus fpecially pleaded, may be given in evi- 
 dence, upon the general iffue at the trial. But, the fcience 
 
 x Ff. 16. 2. i. y Appendix, N e . TI. '. 4. 
 
 VOL. III. U of
 
 306 PRIVATE Boo Kill. 
 
 of fpecial pleading having been frequently perverted to the 
 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 facl, 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 mould feem as if much confufion and uncertainty 
 vould follow from fo great a relaxation of the ftriftnefs 
 antiently obferved, yet experience has fhcvvn it to be other- 
 ujfe ; efpecially with the aid of a new trial, in cafe either 
 party be unfairly furprized by the other. 
 
 2. SPECIAL pleas, in bar of the plaintiff's demand, are 
 very various, according to the circumftances of the defend- 
 ant's cafe. As, in real actions a general releafe or a fine, 
 both of which may deftroy and bar the plaintiff's title. Or, 
 in perfonal actions, an accord, arbitration, conditions per- 
 formed, nonage of the defendant, or fome other fact which 
 precludes the plaintiff from his action z . A jiiftification is 
 likewife a fpecial plea in bar; as in actions of affault and 
 battery, fan affault demejne, 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 adion of {lander, that the plaintiff is 
 really as bad a man as the defendant faid he was. 
 
 ALSO a man may plead the ftatutes of limitation a in bar ; 
 or the time limited by certain acts of parliament, beyond 
 which no plaintiff can lay his caufe of action. This, by the 
 ftatute of 32 Hen. VIII. c. 2. in a writ of right is Jixty years : 
 in affifes, writs of entry, or other poffeffory actions real, of 
 the feifm of one's anceftors, in lands ; and either of their 
 feifin, or one's own, in rents, fuits, and fervicesj fifty years: 
 and in actions real for lands grounded upon one's own feifin 
 or poffeffion, fuch pofleffion 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 
 
 A;pc!id. N.m. .6, a Seepag. i8S. 
 
 fertner 
 
 .,
 
 Ch. 20. WRONGS. 307 
 
 former chapter b . But by the ftatute 21 Jac. I. c. 2. a time 
 of limitation was extended to the cafe of the king ; viz* 
 fixty years precedent to 19 Feb. 1623 c : but, this becoming 
 ineffectual by efflux of time, the fame date of limitation was 
 fixed by ftatute 9 Geo. III. c. 16. to commence and be 
 leckoned backwards, from the time of bringing any fuit or 
 other procefs, to recover the thing in queftion ; fo that a 
 poflefjion forjixty years is now a bar even againft the preroga- 
 tive, in derogation of the antient maxim " nullum tempus ac- 
 " currlt regi." By another ftatute, 21 Jac. I. c. 16. 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 ejedtment ; for no ejectment can be brought, un- 
 lefs where the leffor of the plaintiff is entitled to enter on the 
 lands d , 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 actions of trefpafs, (quare claufumfregit > 
 or otherwife) detinue, trover, replevin, account, and cafe, 
 (except upon accounts between merchants) debt on fimple 
 ccntra6t, or for arrears of rent, are limited by the ftatute laft 
 mentioned to fix years after the caufe of action commenced : 
 and actions of aflault, menace, battery, mayhem, and im- 
 prifonment, muft be brought within four years, and actions 
 for words within two years, after the injury committed. And 
 by the ftatute 31 Eliz. c. 5. all fuits, indictments, and infor- 
 mations, upon any penal ftatutes, where any forfeiture is to 
 the crown, fhall be fued within two years, and where the for- 
 feiture is to a fubjet, within one year, after the offence com- 
 mitted ; unlefs where any other time is fpecially limited by 
 the ftatute. Laftly, by ftatute 10 W. III. c. 14. no writ of 
 error, fcire facias, or other fuit, fhall be brought to reverfe 
 any judgment, fine, or recovery, for error, unlefs it be pro- 
 fecuted within twenty years. The ufe of thefe ftatutes of li- 
 mitation is to preferve the peace of the kingdom, and to pre- 
 vent thofe innumerable perjiries which might enfue, if a man 
 were allowed to bring an action for any injury committed at 
 any diftance of time. Upon both thefe accounts the law 
 
 fc See pag. 250, d See pag. ao6, 
 
 < 3 Inft. 189. 
 
 U 2 there-
 
 308 PRIVATE BOOK III. 
 
 therefore holds, that " interejl reipuUicae tit fit finis litium :" 
 and upon the fame principle the Athenian laws in gene- 
 ral prohibited all actions, where the injury was committed 
 five years before the complaint was made e . If therefore 
 in any fuit, the injury, or caufe of action, happened earlier 
 than the period exprefsly limited by law, the defendant may 
 plead the ftatutes of limitations in bar : as upon an aj/iimpfit 9 
 or promife to pay money to the plaintiff, the defendant 
 may plead non ajjumpfit infra fex annos', he made no fuch 
 promife within fix years j which is an effectual bar to the 
 complaint. 
 
 AN ejlopfel is likewife a fpecial plea in bar : which hap- 
 pens where a man hath done fome act, or executed fome deed, 
 which eftops or precludes him from averring any thing to 
 the contrary. As if tenant for years (who hath no freehold) 
 levies a fine to another perfon. Though this is void as to 
 ftrangers, yet it mail work as an eftoppel to the cognizor ; 
 for, if he afterwards brings an action to recover thefe lands, 
 jmd his fine is pleaded againft him, he mall 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 doctrine of eftoppels, will alfo hold equally, mutatis 
 mutandis i with regard to other parts of pleading) are, i. That 
 it be fmgle and containing only one matter ; for duplicity 
 begets confufion. But by ftatute 4 & 5 Ann. c. 16. a man 
 with leave of the court may plead two or more diftinct mat- 
 ters or fingle pleas ; as in an action of affault and battery, 
 thefe threej not guilty, fen affault demefne^ and the ftatute of 
 limitations. 2. That it be direct and pofitive, and not argu- 
 mentative. 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 
 le be capable of trial. 
 
 c Pott. Ant. b. i. c. 21, 
 
 SPECIAL
 
 Ch. 20. ' WRONGS. 309 
 
 SPECIAL pleas are ufually in the affirmative, fometimes 
 in the negative, but they always advance fome new fact not 
 mentioned in the declaration ; and then they muft be averred 
 to be true in the common form : " and this he is ready to 
 " verify." This is not neceifary in pleas of the general iffue ; 
 thofe always containing a total denial of the facts before ad- 
 vanced 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 iffue, or 
 a total denial of the charge ; but in fuch cafe he fhall be 
 driven to plead the general iffue in terms, whereby the whole 
 queftion is referred to a jury. But if the defendant, in an 
 aflife or r.clion 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 net 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, nul tort^ nul 
 diffetftn^ in afiife, or not guilty in an action 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 ; 
 and may then refer himfelf to the judgment of the court which 
 of thefe two titles is the beft in point of law f . 
 
 WHEN the plea of the defendant is thus put in, if it does 
 not amount to an iflue or total contradiction of the declara- 
 tion but only evades it, the plaintiff may plead again, and 
 reply to the defendant's plea : either traverling it, that is, 
 totally denying it; as if on an action of debt upon bond the 
 defendant pleads folvlt ad diem, that he paid the money when 
 
 f Dl & Sti:d. Z. C, 53. 
 
 U 3 due,
 
 PRIVATE BOOK III. 
 
 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 contradiction to the defendant's plea ; 
 as when the defendant pleads no award made^ the plaintiff" 
 may reply, and fct forth an adlual award, and affign a 
 breach 8; or the replication may confefs and avoid the plea, by 
 fome new matter or diftin&ion, confiftent with the plaintiff's 
 former declaration ; as, in an aclion for trefpaffing 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 plaintiff may either 
 traverfe and totally deny the fat of the defcent j or he may 
 confefs and avoid it, by replying, that true it is that fuch 
 clefcent happened, but that fince 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 anfwer the re- 
 joinder by a fur-rejoinder ; upon which the defendant may 
 rebut; and the plaintiff anfwer him by a fur-rebutter. Which 
 pleas, replications, rejoinders, fur- rejoinders, rebutters, and 
 fur-rebutters anfwer to the exceptio^ replicatio^ duplicatio^ 
 triplicatio^ and quadruplicatio of the Roman laws h . 
 
 THE whole of this procefs is denominated the pleading; 
 in the feveral (rages of which it muft be carefully obferved, 
 not to depart or vary from the title or defence, which the 
 party has once infifted on. For this (which is called a de- 
 parture in pleading) might occafion endlefs altercation. 
 Therefore the replication muft fupport the declaration, and 
 the rejoinder muft fupport the plea, without departing out of 
 it. As in the cafe of pleading no award made, in confequence 
 of a bond of arbitration, to which the plaintiff replies, fet- 
 ting forth an actual award; now the defendant cannot rejoin 
 that he hath performed this award, for fuch rejoinder would 
 be an entire departure from his original plea, which alleged 
 that no fuch award was made : therefore he has now no other 
 
 g Append. N 5 . III. . 6. 1> //?. 4. 14, Brad. /. 5. tr. 5. c. i. 
 
 choice,
 
 Ch. 20. WRONGS. gu 
 
 choice, but to traverfe the fact of the replication, or elfe to 
 demur upon the law of it. 
 
 YET in many actions the plaintiff, who has alleged in his 
 declaration a general wrong, may in his replication, after an 
 evafive plea by the defendant:, reduce that general wrong to 
 a more particular certainty, by affigning the injury afrefh 
 with all it's fpecific circumftances in fuch manner as clearly 
 to afcertain and identify it, confiftently with his gencraf 
 complaint ; which is called a new or novel ajjignment. As, if 
 the plaintiff in trefpafs declares on a breach of his clofe in D ; 
 and the defendant pleads that the place where the injury is 
 laid to have happened is a certain clofe of pafture in D, 
 which defcended to him from B hisfather, 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 J '. 
 
 IT hath previoufly been obferved k that duplicity in plead, 
 ing muft be avoided. Every plea muft be fimple, entire, con- 
 netted, and confined to one fmgle point : it muft never be 
 entangled with a variety of diftint independent anfwers to 
 the fame matter ; which muft require as many different re- 
 plies, and introduce a multitude of iffues upon one and the 
 fame difpute. For this would often embarrafs the jury, and 
 fometimes the court itfelf, and at all events would greatly 
 enhance the expenfe of the parties. Yet it frequently is ex- 
 pedient to plead in fuch a manner, as to avoid any implied 
 admiffion of a fat, which cannot with propriety or fafety be 
 pofitively affirmed or denied. And this may be done by what 
 is called a proteftation j whereby the party interpofes an ob- 
 lique allegation or denial of fome fact, protefting (by the 
 gerund, proteftando] that fuch a matter does or does not exift j 
 and at the fame time avoiding a dire<St affirmation or denial. 
 Sir Edward Coke hath defined J a proteftation (in the pithy 
 dialect of that age) to be " an exclufion of a conclufion." 
 
 Bro. dbr. t, trefpaff, 205. 284, ' i Jnft, 124. 
 
 * pag, 308. 
 
 U For
 
 3i2 PRIVATE BOOK III. 
 
 For the ufe of it is, to fave the party from being concluded 
 with refpedt to fome fa(5t or circumftance, which cannot be 
 directly affirmed or denied without falling into duplicity of 
 pleading; and which yet, if he did not thus enter his proteft, 
 he might be deemed to have tacitly waived or admitted. 
 Thus, while tenure in villenage fubfifted, if a villein had 
 brought an action againft his lord, and the lord was inclined 
 to try the merits of the demand, and at the fame time to 
 prevent any conclufion againft himfelf that he had waived 
 his figniory ; he could not in this cafe both plead affirma- 
 tively that the plaintiff was his villein, and alfo take iffue 
 upon the demand ; for then his plea would have been double, 
 as the former alone would have been a good bar to the adlion : 
 but he might have alltged the villenage of the plaintiff, by 
 way of proteftation, and then have denied the demand. By 
 this means the future vaffalage of the plaintiff was faved to 
 the defendant, in cafe the iflue was found in his (the defend- 
 ant's) favour" 1 : for the proteftation prevented that conclufion, 
 which would otherwife have refulted from the reft of his de- 
 fence, that he had enfranchifed the plaintiff" j fmce no villein 
 could maintain a civil action againft his lord. So alfo if a 
 defendant, by way of inducement to the point of his de- 
 fence, alleges (among other matters) a particular mode of 
 feifm or tenure, which the plaintiff is unwilling to admit, 
 and yet defires to take iflue on the principal point of the de- 
 fence, he muft deny the feifm or tenure by way of protefta- 
 tion, and then traverfe the defenfive matter. So, laftly, if 
 an award be fet forth by the plaintiff, and he can allign a 
 breach in one part of it (viz. the non-payment of a fum of 
 money) and yet is afraid to admit the performance of the reft 
 of the award, or to aver in general a non-performance of any 
 part of it, left fomething fhould appear to have been per- 
 formed ; he may fave to himfelf any advantage he might 
 hereafter make of the general non-performance, by alleging 
 tbat by proteftation ; and plead only the non-payment of the 
 money . 
 
 ra Co. Litt. 126. o Append. N. III. . 6. 
 
 > See buck II. ch. 6. pag. 94. 
 
 IN
 
 Ch. 20. WRONGS. 313 
 
 IN any ftage of the pleadings, when either fide advances or 
 affirms any new matter, he ufually (as was faid) avers it to 
 be true ; " and this he is ready to verify." On the other 
 hand, when either fide traverfes or denies the facts pleaded 
 by his antagonift, he ufually tenders an iffue, as it is called ; 
 the language of which is different according to the party by 
 whom the iffue 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 himfelf to the judgment of his peers p : but if the 
 traverfe lies upon the plaintiff, he tenders the ifTue or prays 
 the j udgment 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 fpecial negative plea, not traverfing or denying any thing 
 that was before alleged, but difclofing fome new negative 
 matter ; as where the fuit is on a bond, conditioned to per- 
 form an award, and the defendant pleads, negatively, that 
 no award was made, he tenders no iflue upon this plea ; be- 
 caufe it does not yet appear whether the fact will be difputed, 
 the plaintiff not having yet aflerted the exiftence of any 
 award ; but when the plaintiff replies, and fets forth an 
 actual 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 iffue to the plaintiff. For when in 
 the courfe of pleading they come to a point which is affirm- 
 ed on one fide, and denied on the other, they are then faid 
 to jbe at iffue ; all their debates being at laft contracted into 
 a fmgle point, which muft now be determined either in fa- 
 vour of the plaintiff or of the defendant. 
 
 P Append, NP. II. <. 4.
 
 314 PRIVATE BOOK III. 
 
 CHAPTER THE TWENTY FIRST. 
 OF ISSUE AND DEMURRER, 
 
 ISSUE, exitus, being the end of all the pleadings, is the 
 fourth part or ftage of an action, and is either upon mat- 
 ter of law, or matter of fatt. 
 
 AN iffue upon matter of law is called a demurrer : and it 
 confefles the facts to be true, as ftated by the oppofite party ; 
 but denies that, by the law arifing upon thofe facts, 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, demoratur^ refts or abides upon the point in queftion. 
 As, if the matter of the plaintiff's complaint or declaration 
 be inefficient in law, as by not afiigning any fufficient tref- 
 pafs, then the defendant demurs to the declaration : if, on 
 the other hand, the defendant's excufe or plea be invalid, as 
 if he pleads that he committed the trefpafs by authority from 
 a ftranger, without fetting out the ftranger's right ; here the 
 plaintiff may demur in law to the plea : and fo on in every 
 other part of the proceedings, where either fide perceives any 
 material objection in point of law, upon which he may reft 
 his cafe. 
 
 THE form of fuch demurrer is by averring the declaration 
 qr plea, the replication or rejoinder, to be infufficient in 
 
 law
 
 Ch. 21. WRONGS. 315 
 
 law to maintain the action or the defence ; and therefore 
 praying judgment for want of fufficient matter alleged a . 
 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 demurring muft by 
 ftatute 27 Eliz. c. 5. and 4 & 5 Ann. c. 16. fet forth the 
 caufes of his demurrer, or wherein he apprehends the de- 
 ficiency to confrft. And upon either a general, or fuch a 
 fpedal demurrer, the oppofite party avers it to be fufficient, 
 which is called a joinder in demurrer b , and then the parties 
 are at iflue in point of law. Which iflue in law, or demur- 
 rer, the judges of the court before which the action is 
 brought muft determine. 
 
 AN iffue of fact is where the fact only, and not the law, 
 is difputed. And when he that denies or traverfes the fact 
 pleaded by his antagonift has tendered the iflue, thus, " and 
 " this he prass 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 fact in queftion c . And this iflue, of 
 fact, muft generally fpeaking be determined, not by the 
 judges of the court, but by fome other method ; the princi- 
 pal of which methods is that by the country, per pais, (in 
 Latin, per patriam] that is, by jury. Which eftablifliment, 
 of different tribunals for determining thefe different iflues, is 
 in fome meafure agreeable to the courfe of juftice in the Ro- 
 man republic, where the judices ordinarii determined only 
 queftions of fact, but queftions of law were referred to the 
 decifions of the centumviri d . 
 
 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 necefiary 
 
 a Append. N. Ill, . 6. c Append. N. II. . 4. 
 
 6 MJ* d Ci. tie Orator. 1. I. (. 3 S. 
 
 'that
 
 316 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 prefence 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 neglects to put in his de- 
 claration, plea, replication, rejoinder, and the like, within 
 the times allotted by the ftanding rules of the court, the 
 plaintiff, if the omiflion be his, is faid to be nonfat, or not 
 to follow and purfue his complaint, and fhall 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 de- 
 fault. And, after iffue 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 require. 
 The giving of this day is called the continuance, becaufe 
 thereby the proceedings are continued without interruption 
 from one adjournment to another. If thefe continuances are 
 omitted the caufe is thereby difcontinued, and the defendant 
 is difchargedyfrz* die, without a day, for this turn : for by his 
 appearance in court he has obeyed the command of the 
 king's writ ; and, unlefs he be adjourned over to a day cer- 
 tain, he is no longer bound to attend upon that fummons j 
 but he muft be warned afrefh, and the whole muft 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 plaintiff, being a feme-fole, 
 is fince married, or that fhe has given the defendant a re- 
 leafe, and the like : here, if the defendant takes advantage 
 of this new matter, as early as he poiTibly can, viz. at the 
 day given for his next appearance, he is permitted to plead it 
 in what is called a plezpuis darrein continuance, or fince the 
 laft adjournment. For it would be unjuft to exclude him 
 
 from.
 
 Ch. 21. WRONGS. 317 
 
 from the benefit of this new defence, which it was not in his 
 power to make when he pleaded the former. But it is dan- 
 gerous to rely on fuch a plea, without due confideration ; for 
 it confefles the matter which was before in difpute between 
 the parties e . And it is not allowed to be put in, if any con- 
 tinuance has intervened between the arifing of this frefh mat- 
 ter and the pleading of it : for then the defendant is guilty of 
 neglect, or laches^ and is fuppofed to rely on the merits of 
 his former plea. Alfo it is not allowed after a demurrer is 
 determined, or verdicl: given; becaufe then relief may be had 
 in another way, namely by writ of audita querela y of which 
 hereafter. And thefe pleas puis darrein continuance^ when 
 brought to a demurrer in law or iflue of fac\ fhall be de- 
 termined in like manner as other pleas. 
 
 WE have faid, that demurrers, or queftions concerning the 
 fufficiency 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-books^ are delivered to the judges to perufe. The re- 
 cord'' is a hiftory of the moft material proceedings in the 
 caufe, entered on a parchment roll, and continued down to 
 the prefent time ; in which muft be {rated the original writ 
 and fummons, all the pleadings, the declaration, view or 
 oyer 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. 
 
 TH E s E were formerly all written, as indeed all public 
 proceedings were, in Norman or law French, and even the 
 arguments of the counfel and decifions of the court were in 
 the fame barbarous dialect. An evident and fhameful badge, 
 it muft be owned, of tyranny and foreign fervitude ; being 
 
 * Cro. Eliz. 49. f Append. NO. II. . 4. N: III. . 6. 
 
 intro-
 
 3i 8 PRIVATE BOOK III. 
 
 introduced under the aufpices of William the Norman, and 
 his fons : whereby the obfervation of the Roman fatyrift was 
 once more verified, that *' Gallia caufidicos docuit facunda 
 " Britannos g ." This continued till the reign of Edward 
 III ; who, having employed his arms fuccefsfully in fubdu- 
 ing the crozun of France, thought it unbefeeming the dignity 
 of the victors to ufe any longer the language of a vanquished 
 country. By a ftatute therefore, pafled in the thirty fixth 
 year of his reign h , it was enacted, that for the future all 
 pleas fliould be pleaded, fhewn, defended, anfwered, debated, 
 and judged in the Englifti tongue ; but be entered and en- 
 rolled in Latin. In like manner as dort Alonfo X, king of 
 Caftile (the great-grandfather of our Edward III) obliged 
 his fubjecls 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 k . And perhaps if our 
 legislature had then directed that the writs themfelves, which 
 are mandates from the king to his fubjeds to perf rm certain 
 a6b or to appear at certain places, fhould have been framed 
 in the Englifh 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 pradlifers however, being 
 ufed to the Norman language, and therefore imagining they 
 could exprefs their thoughts more aptly and more concifely 
 in that than in any other, ftill continued to take their notes 
 in law French ; and of courfc when thofe notes came to be 
 published, under the denomination of reports, they were 
 printed in that barbarous dialed! j which, joined to the addi- 
 tional terrors of a Gothic black letter, has occafioned 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 j which differs in it's grammar 
 
 S Juv. xv. in. fc Ibid. xxix. 235. 
 
 b c. 15. > Mirr. .4. . 3, 
 
 * Mod.Un.Hift. xx. 211. 
 
 and
 
 Ch. 21. WRONGS. 
 
 and orthography as much from the modern French, as the 
 di&ion of Chaucer and Gower does from that of Addifon 
 and Pope. Befides, as the Englifh and Norman languages 
 were concurrently ufed by our anceftors for feveral centuries 
 together, the two idioms have naturally afiimilated, and 
 mutually borrowed from each other : for which reafon the 
 grammatical conftru&ion of each is fo very much the fame, 
 that I apprehend an Englifhman (with a week's preparation) 
 would underftand the laws of Normandy, collected in their 
 grand couftumier^ 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 Englifh (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 Englifh 
 words. Whereas in reality it is a very universal dialect, 
 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 exa<3> 
 nefs and precifion. 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 moft eafily under- 
 ftood, where ftrength and perfpicuity, not harmony or ele- 
 gance of expreffion, have been principally confulted in com- 
 piling them. Thefe northern nations, or rather their legif- 
 lators, 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 fubje&s than their own 
 Teutonic diale&s, yet (either through choice or neceflity) 
 have frequently intermixed therein fome words of a Gothic 
 original j which is, more r lefs, .the cafe in every country 
 
 of
 
 320 PRIVATE BOOK III. 
 
 of Europe, and therefore not to be imputed as any peculiar 
 blemifh in our Englifh legal latinity m . The truth is, what 
 is generally denominated law-latin is in reality a mere tech- 
 nical language, calculated for eternal duration, and eafy to 
 be apprehended both in prefent and future times ; and on 
 thofe accounts beft fuited to preferve thofe memorials which 
 are intended for perpetual rules of action. The rude pyra- 
 mids of Egypt have endured from the earlieft ages, while the 
 more modern and more elegant ftru&ures of Attica, Rome, 
 and Palmyra have funk beneath the ftroke of time. 
 
 As to the objection 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, underftand the rudiments of Latin. And befides 
 
 O * 
 
 it may be obferved of the law-latin, as the very ingenious fir 
 John Davis n obferves of the law-french, " that it is fo very 
 " eafy to be learned, that the meaneft wit that ever came to 
 " the ftudy of the law doth come to underftand it almoft 
 " 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 
 <e fqueamifh ftomachs, who would rather chufe to live in 
 " ignorance of things the moft ufeful and important, than to 
 c< 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 unavoidably 
 happen when things of modern ufe, of which the Ro- 
 mans had no idea, and confequently no phrafes to exprefs 
 
 m The following fjntence, " fi quii flamp, in the laws of the Eurgundij.ns 
 
 " ad battalia curte jua rxierit, if any one on the continent, before the end of the 
 
 e goes out of his own court to fight," fifth century. (Add. i. c, 5, . z.) 
 SV. may raiie a fmile in the ftudent as " Pref. Rep. 
 a ti.irr.ing modern angiicifra: but he may Pref. ad Eadtner. 
 tneet.\vi;h it, among others of the iin;c 
 
 them, '
 
 Ch. 21.' WRONGS. 321 
 
 them, come to be delivered in the Latin tongue. It would 
 puzzle the moft claffical fcholar to find an appellation, in his 
 pure latinity, for a conftable, a record, or a deed of feoff- 
 ment : it is therefore to be imputed as much to neceffiy, as 
 ignorance, that they were ftiled in our forenfic dialed!: confta- 
 bulariuS) fecordum, and fecffamentum. Thus again, another 
 uncouth word of our antient laws (for I defend not the ridi- 
 culous barbarifms fometimes introduced by the ignorance of 
 modern praclifers) the fubftantive murdrum^ or the verb 
 murdrare^ however harfli and unclafllcal it may feem, was 
 neceffarily framed to exprefs a particular offence ; fince no 
 other word in being, occidere, interficere^ necare, or the like, 
 was fufficient to exprefs the intention of the criminal, or quo 
 animo the acl: was perpetrated ; and therefore by no means 
 came up to the notion of murder at prefent entertained by 
 our law ; viz. a killing with malice aforethought. 
 
 A SIMILAR neceffity to this produced a fimilar effect 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 
 no fcruple to tranflateyfc&z commiffarios^ <pifa*ipfHfiqtf*\ cu~ 
 biculum, Kula^iM i ; .flium-familias, 9*4&*-f#fu*MK T ; repu- 
 dium, fiirxhov* ; C9mpraanffian t xa/^e^ias-ov l j reverentia et ob~ 
 fequiuni) fatprrt* xuj otrs>iisio B j and the like. They ftudied 
 more the exaft and precife import of the words, than the 
 neatnefs and delicacy of their cadence. And my academical 
 readers will excufe me for fuggefting, that the terms of the 
 law are not more numerous, more uncouth, or more difficult 
 to be explained by a teacher, than thofc of logic, phyflcs, 
 and the whole circle of Ariftotle's philofophy, nay even of 
 the politer arts of architecture and it's kindred ftudies, or the 
 fcience of rhetoric itfelf. Sir Thomas More's famous legal 
 queftion w contains in it nothing more difficult, than the de- 
 
 P Nov. i. c, i. t Nm. 82. c. ii. 
 
 q Nov. 8. edifl. Conjientiiiep. N<n> 78. c. a. 
 
 * Nov. 117. c. i. w See pag. 14.9. 
 Ibid. c. 8. 
 
 VOL. III. W definition
 
 322 PRIVATE BOOK III; 
 
 finition which in his time the philofophers currently gave of 
 their materia prima^ the groundwork of all natural know- 
 lege ; that it is " nnque quid y ntque quantum, neque quaie, nc- 
 " que aliquid eorum quibus ens determinate j" or it's fubfe- 
 quent explanation by Adrian Heereboord, who aflures us * 
 that " materia prinia non eft corpus^ neque per for mam corporei- 
 " tatis, neque per fimplicem ejfintiam : eft tamen ens y et quident 
 " fubjlantia, licet incompleta ; habetque affum ex fe entitativum^ 
 " et fimul eft poientia fubjeftiva" The law therefore, with 
 regard to it's technical phrafes, ftands upon the fame foot- 
 ing with other ftudies, and requefts only the fame in- 
 dulgence. 
 
 THIS technical Latin continued in ufe from the time of 
 it's firft introduction, till the fubverfion of our antient con- 
 ftitution under Cromwell ; when, among many other inno- 
 vations in the law, fome 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, thfs 
 novelty was no longer countenanced ; the pra&ifers finding 
 it very difficult to'exprefs themfelves fo concifely or fignifi- 
 cantly 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 pro- 
 ceedings at law fhould be done into Englifh, and it was ac- 
 cordingly fo ordered by ftatute 4 Geo. II. c. 26. This was 
 done, in order that the common people might have know- 
 ledge and underftanding of what was alleged or done for and 
 againft them in the procefs and pleadings, the judgment and 
 entries in a caufe. Which purpofe I know not how well it 
 has anfwered ; but am apt to fufpedt that the people are now, 
 after many years experience, altogether as ignorant in matters 
 of law as before. On the other hand, thefe inconvenience* 
 have already arifen from the alteration ; that now many 
 clerks and attorneys are hardly able to read, much lefs to un- 
 derftand, a record even of fo modern a date as the reign of 
 George the fii-ft. And it has much enhanced the expenfe of 
 
 . natural, c, r. . 28, V;
 
 Ch : . 2i. WRONGS. 323 
 
 all legal proceedings : for fmce the pra&ifers are confined (for 
 the fake of the ftamp duties, which are thereby confiderably 
 increafcd) to write only a ftated number of words in a iheet ; 
 a'nd as the Englifli language, through the multitude of it's 
 particles, is much more verbofe than the Latin ; it follows 
 that the number of ftieets muft be very much augmented by 
 the change ^. The tra'nflation alfo of techmcal phrafes, and 
 the names of writs and other procefs, were found to be fa 
 very ridiculous (a Writ of nifi prius, quare impedh, fieri facias* 
 habeas corpus, and the reft, not being capable of an EnglHh 
 drefs with any degree of ferioufnefs) that in two years time a 
 new act was obliged to be made, 6 Geo. II. c. 14 ; which 
 allows all technical words to continue in the ufual language, 
 and has thereby almoft defeated every beneficial 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 refpeclt 
 to the prohibition of ufmg the antient immutable court hand 
 in writing the records or other legal proceedings ; where- 
 by the reading of any record that is forty years old is 
 now become the objecl: of fcience, and calls for the help 
 of an antiquarian. But that branch of it, which forbids 
 the ufe of abbreviations, feems to be of more folid advantage, 
 in delivering fuch proceedings from obfcurity : according to 
 the precept of Juftinian z ; " ne per fcripturam aliqua fiat in 
 ** pojlerum dubitatio, jubemus non perfiglorum captiones et ctim- 
 " pendiofa enigmata ejufdem codicis textum confer ibi, fed per li- 
 *' terarum confequentiam explanari concedimus" But, to re- 
 turn to our v 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 j and judg- 
 
 y For inftance, thefe three words, converted into feven, " according to the 
 * [ecundum fsrmam ftatuti" are now " form of the ftatute." 
 
 * dt concept, dlgtjl, . J j. 
 
 W 2 merit
 
 324. PRIVATE BOOK IIL 
 
 raent is thereupon accordingly given. As, in an a&ion of 
 trefpafs, if the defendant in his plea confeffes the fa&, but 
 juftifies it caufa venationis, for that he was hunting; and to 
 this the plaintiff demurs, that is, he admits of the truth of 
 the plea, but denies the juftification to be legal : now, on ar- 
 guing this demurrer, if the court be of opinion, that a man 
 may not juftify 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. 
 
 AN iflue of fa& takes up more form and preparation to 
 fettle it ; for here the truth of the matters alleged muft be 
 fblemnly examined in the channel prefcribed by law. To 
 which examination, of fails, the name of trial is ufually 
 confined, which will be treated of at large in the two fuc- 
 eeeding chapters.
 
 Ch. 22. W R O N G S> 325 
 
 CHAPTER THE TWENTY SECOND, 
 
 OF THE SEVERAL SPECIES OF 
 
 TRIAL, 
 
 THE uncertainty of legal proceedings is a notion fo ge- 
 nerally 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 difcernmant himfelf, or elfe meant to impofe 
 upon others. Yet it may not be amifs, before we enter 
 upon the feveral modes whereby certainty is meant to be ob- 
 tained in our courts of juftice, to inquire a little wherein this 
 uncertainty, fo frequently complained of, confifts 3 and to 
 what caufes it owes it's original. 
 
 IT hath fometimes 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 
 fentiments or caprice of fucceflive legiflatures and judges have 
 happened to vary. The fat, of multiplicity, is allowed ; and 
 that thereby the refearches of the ftudent are rendered more 
 difficult and laborious : but that, with proper induftry, the 
 refult of thofe 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- 
 riety for con fufion, and complicated cafes for contradi&ory. 
 
 a See the preface to fir John Davies's reports : wherein many of the following 
 tojxics *K difcufled more at Jaige. 
 
 W 3 They
 
 326 PRIVATE BOOK III. 
 
 They bring us the examples of arbitrary governments, of 
 Denmark, Mufcovy, and Pruffia; of wild and uncultivated 
 nations, the favages of Africa and America ; or of narrow 
 domeftic republics, in antient Greece and modern Switzer- 
 land -, and unreasonably 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, mu : depend upon his will and pleafure. 
 Hence there can be but few legal determinations relating to the 
 property, the defcent, or the conveyance of real eftates ; and 
 the fame holds in a ftronger degree with regard to goods and 
 chattels, and the contracts 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; 
 or at leaft women are treated as fuch: no laws can be there- 
 fore expected 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, 
 viz. the 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 contemplation of 
 thefe boafted legiflators) incapable of either right or injury, 
 and of confequence are entitled to no redrefs. We may fee, 
 in thefe arbitrary ftatcs, how large a field of legal contefts is 
 already rooted up and deftroyed. 
 
 AGAIN ; were we a poor and naked" people, as the favages of 
 America are, ftrangers. to fcience, to commerce, and the arts 
 as well of convenience as of luxury, we might perhaps be 
 content, as fome of them are faid to be, to refer all difputes 
 to the next man we meet upon the road, and fo put a fhort end 
 
 to
 
 Ch. 22. W R O TNT G S. 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 fturcly 
 fliepherds 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 fwelled to that amazing bulk which if now occupies, 
 though fucceflively pruned and retrenched by the emperors 
 Theodofius and Juftinian. 
 
 IN like manner we may laftly obferve, that, in petty (rates 
 and narrow territories, much fewer laws will fuffice than in 
 large ones, becaufe there are fewer objects upon which the 
 Jaws can operate. The regulations of a private family are 
 fhort and well-known ; thofe of a prince's houfhold are 
 neceflarily more various and diffufe. 
 
 THE caufes therefore of the multiplicity of the Englifh 
 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 fubje6t. Thefe will naturally 
 produce an infinite fund -of difputes, which muft be termi- 
 nated in a judicial way : and it is eflential to a free people, 
 that thefe determinations be publifhed and adhered to ; that 
 their property may be as certain and fixed as the very confti- 
 tution of their ftate. For though in many other countries 
 every thing is left in the breaft of the judge to determine, yet 
 with us he is only to declare and pronounce, not to make or 
 new-model^ the law. Hence a multitude of decifions, or cafes 
 ajudged, will arife ; for feldom will it happen that any one 
 rule will exactly fuit with many cafes. And in proportion 
 as the decifions of courts of judicature are multiplied, the law 
 will be loaded with decrees, that may fometimes (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 ; or 
 becaufe the fame arguments did not occur formerly as at pre- 
 
 W 4 fent;
 
 328 PRIVATE BOOK III. 
 
 fent ; or, In fine, becaufe of the natural imbecillity and im- 
 perfection that attends all human proceedings. But wher- 
 ever this happens to be the cafe in any material point, the le- 
 giflature is ready, and from time to time both may, and fre- 
 quently does, 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 contradiction or un- 
 certainty may have been gleaned from our records, or reports, 
 muft be imputed to the defedts of human laws in general, 
 and are not owing to any particular ill conftrution of the 
 Englifli fyflem. Indeed the reverfe is moft ftridly true. The 
 Englifh law is lefs embarraffed with inconfiftent refolutions 
 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 collected by Juftinian and his 
 agents, is extremely voluminous and diffufe ; but the idle 
 comments, obfcure gloffes, and jarring interpretations graft- 
 ed thereupon by the learned jurifts, are literally without num- 
 ber. And thefe gloffes, which are mere private opinions of 
 fcholaftic doctors (and not like our books of reports, judicial 
 determinations of the court) are all of authority fufficient to 
 be vouched and relied on; which muft needs breed great dif- 
 tra&ion and confufion in their tribunals. The fame may be 
 faid of the canon law ; though the text thereof is not of half 
 the antiquity with the common law of England; and though 
 the more antient any fyftem of laws is, the more it is liable 
 to be perplexed with the multitude of judicial decrees. When 
 therefore a body of laws, of fo high antiquity as the Englifh, 
 is in general fo clear and perfpicuous, it argues deep wif- 
 dom and forefight in fuch as laid the foundations, and 
 great care and circumfpe&ion, in fuch as have built the 
 fuperftruclure. 
 
 BUT is not (it will be afked) the multitude of lawfuits, 
 which we daily fee and experience, an argument againft the 
 clearnefs and certainty of the law itfelf ? By no means : for 
 
 among
 
 Ch. 22. WRONGS. 329 
 
 among the various dtfputes 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 aftion fhall feldom be heard of, 
 to determine a queftion of inheritance, unlefs the fa<t of the 
 defcent be controverted. But the dubious points, which are 
 ufually agitated in our courts, arife chiefly from the difficulty 
 there is of afcertaining the intentions of individuals, in their 
 folemn difpofitions of property ; in their contracts, convey- 
 ances, and teftaments. It is an object indeed of the utmoft 
 importance in this free and commercial country, to lay as few 
 reftraints as pofftble upon the transfer of pofTeffions from hand 
 to hand, or their various defignations marked out by the pru- 
 dence, convenience, or neceflities, or even by the caprice, of 
 their owners : yet to inveftigate 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 are 
 frequently puzzled to find out the meaning of others. Thus 
 the powers, the interefr, 'the privileges, and properties of 
 a tenant for life, and a tenant in tail, are clearly diftinguifh- 
 ed and precifely fettled by law : but, what words in a will 
 fhall conftitute this or that eftate, has occafionally been dif- 
 puted for more than two centuries paft ; and will continue 
 to be difputed as long as the careleflhefs, the ignorance, or 
 fingularity of teftators fhall continue to cloath their inten- 
 tions in dark or new-fangled expreffions. 
 
 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 number to thofe which are founded upon the difho- 
 nefty, and difingenuity of the parties: by either their fuggeft- 
 ing complaints that are falfe in fa6r, and thereupon bringing 
 groundlefs actions; or by their denying fuch far.s as are true, 
 in fetting up unwarrantable defences. Exfafto oriturjus: if 
 therefore the fact be perverted or mif-reprefented, the law 
 which arifes from thence will unavoidably be unjuft or partial. 
 
 And,
 
 33 PRIVATE BOOK IIF. 
 
 And, in order to prevent this, it is neceflary to fet right the 
 fat, and eftablifh the truth contended for, by appealing to 
 fbme mode of probation or trial y which the law of the coun- 
 try has ordained for a criterion of truth and falfliood. 
 
 Tnssp modes of probation or trial form in every civilized 
 country the great object of judicial decifions. And experi- 
 ence will abundantly ihew, that above a hundred of our law- 
 fuits arife from difputed facts, for one where the law is 
 doubted of. About twenty days in the year are fufficient, 
 in Weftminfter-hall, to fettle (upon folemn argument) every 
 demurrer or other fpecial point of law that arifes throughout 
 the nation : but two months are annually fpent in deciding 
 the truth of facts, before fix diftinct tribunals, in the feveral 
 circuits of England ; exclufive of Middlefex and London, 
 which afford a fupply of caufes much more than equivalent 
 to any two of the largeft circuits. 
 
 TRIAL then is the examination of the matter of fact in 
 iffue ; of which there are many -different fpecies, according 
 to the difference of the fubjedt, or thing to be tried : of all 
 which we will take a curfory view in this and the fubfequent 
 chapter. For the law of England fo 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 facts according to the nature of the fats 
 themfelves : this being the one invariable principle purfued, 
 that as well the beft method of trial, as the beft evidence upon 
 that trial, which the nature of the cafe affords, and no other, 
 fliall be admitted in the Englilh courts of juftice. 
 
 THE fpecies of trials in civil cafes are feven. By record; 
 by infyeftior^ or examination ; by certificate ; by witneffes j by 
 wager of battel; by wager of law ; and by jury. 
 
 I. FIRST then of the trial by record. This is only ufed in 
 -one particular inftance ; and that is where a matter of record 
 
 is
 
 Ch. 22. WRONG ,s. 331 
 
 is pleaded in any action, as a fine, a judgment, or the like ; 
 ^ind the oppofite party pleads, " mil tie! record," that there is 
 no fuch matter of record exifting : upon this, iflue is tender- 
 <j and joined in the following form, " and this he prays may 
 " be inquired of by the record, and the other doth the like ;" 
 and hereupon the party pleading the record has a day given 
 him to bring it in, and proclamation is made in court for him 
 to " bring forth the record by him in pleading alleged, or 
 " elfe he {hall be condemned ;" and, on his failure, his aij- 
 tagonift fhall have judgment to recover. The trial therefore 
 of this iflue is m.erely by the record ; for, as fir Edward Coke b 
 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 c . 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 J . And alfo, whether a manor be held in antient de^ 
 inefne or not, {hall be tried^by the record of domefday in the 
 king's exchequer. 
 
 II. TRIAL by infpeftion, or examination^ is when for the 
 greater expedition of a caufe, in fome point or iflue being 
 either the principal queftion, or arifing collaterally out of it, 
 but being evidently the object of fenfe, the judges of the court, 
 upon the teftimony of their own fenfes, fhall decide the point 
 in difpute. For, where the affirmative or negative of a 
 queftion is matter of fuch obvious determination, it is not 
 thought neceflary to fummon a jury to decide it ; who are 
 properly called in to inform the confcience of the court in 
 refpel of dubious fats : and therefore when the fait, from it's 
 nature, muft be evident to the court either from ocular de- 
 monftration or other irrefragable proof, there the law departs 
 
 b 1 1nft. 117. a6o. d 9 Rep. 31. 
 
 c 6 Rep. 53. 
 
 from
 
 33 2 PRIVATE BOOK III. 
 
 from it's ufual refort, the verdict of twelve men, and relies 
 on the judgment of the court alone. As in cafe of a fuit to 
 reverfe a fine for non-age of the cognizor, or to fet afide a 
 ftatute or recognizance entered into by an infant; here, and 
 in other cafes of the like fort, a writ fhall iffue to the fhe- 
 riff* ; commanding him that he conftrain 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 ; " ut 
 " per afpeftum corporh fui conjlare poterit jujliciarm no/Iris^ Ji 
 " praediftus A Jit plenae etatis necne V If however the court 
 has, upon infpe&ion, any doubt of the age of the party, 
 (as may frequently be the cafe) it may proceed to take proofs 
 of the fa&j and, particularly, may examine the infant him- 
 felf upon an oath of voir dire^ veritatem dicere, that is, to 
 make true anfwer to fuch queftions as the court fhall demand 
 of him : or the court may examine his mother, his god- 
 father, or the like , 
 
 IN like manner if a defendant plead-s 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 fhall determine by infpe&ion and examination, 
 whether he be the plaintiff or not h . 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 
 his friends, to be infpecSted and examined, whether idiot or 
 not : and if, upon fuch view and inquiry, it appears he is 
 not fo, the verdict of the jury, and all the proceedings 
 thereon, are utterly void and inftantly of no effecT: *. 
 
 ANOTHER inftance in which the trial by infpection may 
 be ufed, is when, upon an appeal of maihem, the iflue joined 
 is whether it be maihem or no maihem, this fhall be decided 
 by the court upon infpe&ion, for which purpofe they may 
 
 * 9 Rep. 37. though now it is tried by inspection. 
 
 ' This qucftion of non-age was for g a Roll. Abr. 573. 
 mcily, according to Glanvil, (/. 13. c. n 9 Rep. 30. 
 15.) tried by a jury of eight men; > Hid. 31. 
 
 call
 
 Ch. 22. WRONG s. 
 
 call in the afliftance of furgeons j. And, by analogy to this, 
 in an a&ion of trefpafs for maihem, the court, (upon view 
 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 k j as may alfo be the cafe 
 upon view of an atrocious battery ! . But then the battery 
 muft likewife be alleged fo certainly in the declaration* that 
 it may appear to be the fame with the battery infpe&ed. 
 
 ALSO, to afcertain any circumftances relative to a particu- 
 lar day paft, it hath been tried by an infpeUon of the alma- 
 nac by the court. Thus, upon a writ of error from an in- 
 ferior court, that of Lynn, the error afligned was that the 
 judgment was given on a funday, it appearing to be on 
 26 February, 26 Eliz. and upon infpeftion of the almanacs 
 of that year it was found that the 26th of February in that 
 year actually fell upon a funday : this was held to be a fuffi- 
 cient trial, and that a trial by a jury was not neceflary, al- 
 though it was an error in fact ; and fo the judgment was re- 
 verfed m But, in all thefe cafes, the judges, if they conceive 
 a doubt, may order it to be tried by jury. 
 
 . III. THE trial by certificate is allowed in fuch cafes, where 
 the evidence of the perfon certifying is the only proper crite- 
 rion of the point in difpute. For, when the fat in queftion 
 lies out of the cognizance of the court, the judges mft rely 
 on the folemn averment or information of perfons in fuch a 
 ftation, 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 fave trouble 
 and circuity, permits the faclt to be determined upon fuch 
 certificate merely. Thus, I. If the iflue be whether A was 
 abfent with the king in his army out of the realm in time of 
 war, this fhall be tried n by the certificate of the marefchall of 
 
 j a Roll. Abr. 57?. n> Cro. Elia. 227. 
 
 * i Sid. 108. n Litt. 5>. 101. 
 
 i Hwdr. 408. 
 
 the
 
 334 PRIVATE Boo it III 
 
 the king's hoft in writing under his feal, which fhall 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 
 mare, at Roultiea'ux, or in the fervice of the mayor of Bour- 
 deaux, this mould have been tried by the certificate of the 
 mayor ; and the like of the captain of Calais . But, whefl 
 this was law P, thofe towns Were under the dominion of the 
 crown of England. And therefore, by a parity of reafon, it 
 fhould now hold that in fimilar cafes, arifmg atjamaica or Mi- 
 norca, the trial fhould be by certificate from the governor of 
 thofe iflands. We alfo find 1 that the certificate of the queen's 
 meffenger, fent to fummon home a peerefs of the realm, wasr 
 formerly held a fufficient trial of the contempt in refufing to 
 obey fuch fummons. 3. For matters within the realm j the 
 cuftoms of the city of London fhall be tried by the certificate 
 of the mayor and aldermen, certified by the mouth of their 
 recorder 1 "; upon a furmife from the party alleging it, that the 
 cuftom ought to be thus tried : elfe it muft be tried by the 
 country 8 . 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 another; if any of thefe, or other 
 fimilar points come in iffue. 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 fhall be determined 
 by a jury, and not by the mayor and aldermen, certifying by 
 the mouth of their recorder e . 4. In fome cafes, the fheriff 
 of London's certificate fhall 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. Bro, Abr> t. trlil.pl. 96. 
 
 P 2. Roll. Abr. 583. ' Hob. 85. 
 
 1 Dyer. 176, 177. * Co. Lift. 74. 
 
 r Co. Litt. 74. 4 Burr, 248. 
 
 privileged
 
 Ch. 22: WRONGS; 335 
 
 privileged perfon. In this cafe, the charters, confirmed by* 
 aft of parliament, direct the trial of the queftion, whether a 
 privileged perfon or no, to be determined by the certificate 
 and notification of the chancellor under feal j to which it 
 hath alfo been ufual to add an affidavit of the fact: but if the 
 parties be at ifTue between themfelve's, whether 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, 11 : be- 
 caufe the charters direct only that the privilege be allowed on 
 the chancellor's certificate, when the claim of cognizance is 
 made by him, and not where the defendant h'i'mfelf pleads his 
 privilege : fo that this muft be left to the ordinary courfe of 
 determination. 5. In matters of ecclefiaftical jurifdiction, as 
 marriage^ and of courfe general baftardy ^ and alfo excommuni- 
 cation, and orders, thefe, and other like matters, (hall be tried 
 by the bimop's certificate w . As if it be pleade'd in abate- 
 ment, that the plaintiff is excommunicated, and ifTue is join- 
 ed thereon j or if a man claims a.n eftate by defcerit, and the 
 tenant alleges the demandant to be a baftard ; or if on a writ 
 of dower the heir pleads no marriage ; or if the iffue in a 
 quare impedit be, whether or no the church be full by infti- 
 tution j all thefe being matters of mere ecclefiaftical cogni- 
 zance, mail be tried by certificate from the ordinary. But 
 in an action on the cafe for calling a man baftard, the de- 
 fendant having pleaded in justification that the plaintiff was 
 really fo, this was directed to be tried by a jury * : becaufe, 
 whether the plaintiff be found either a general or fpecial baf- 
 tard, the j uftification will be good ; arid no queftion of fpe- 
 cial baftardy mail be tried by the biftiop's certificate, but by 
 a jury y . For a fpecial baftard is one born before marriage, of 
 parents who afterwards intermarry: which is baftardy by our 
 law, though not by the ecclefiaftical. It would therefore be 
 improper to refer the trial of that queftion to the bifhopj who, 
 whether the child be born before or after marriage, will be 
 
 " z Roll. Abr. 583. * Hob. 179 
 
 *' Co. Litt. 74. y Dyer. 79. 
 
 fure
 
 336 PRIVATE BOOK III. 
 
 fure to return or certify him legitimate *. Ability of a clerk 
 preferred % admiffvtn, injlitution^ and deprivation of a clerk, 
 fhall alfo be tried by certificate from the ordinary or metropo- 
 litan, becaufe of thefe he is the moft competent judge b : but 
 induction fhall be tried by a jury, becaufe it is a matter of 
 public notoriety c , and is likewife the corporal inveftiture of 
 the temporal profits. Reftgnation of a benefice may be tried 
 in either way d ; but it feems moft properly to fall within the 
 bifhop's cognizance. 6. The trial of all cuftoms and prac- 
 tice of the courts fhall be by certificate from the proper offi- 
 cers of thofe courts refpe&ively; and, what return was made 
 on a writ by the fheriffor under-fherifF, fhall be only tried by 
 his own certificate e . And thus much for thofe feveral iflues, 
 or matters of facl:, which are proper to be tried by certificate. 
 
 IV. A FOURTH fpecies of trial is that by witneffes, per 
 tefteS) 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 witnefTes 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 hufband is not dead ; 
 this, being looked upon as a dilatory plea, is in favouf of the 
 widow and for greater expedition, allowed to be tried by wit- 
 nefles examined before the judges : and fo, faith Finch f , fhall 
 no other cafe in our law. But fir Edward Coke g mentions 
 fome others : as to try whether the tenant in a real action 
 was duly fummoned, or the validity of a challenge to a juror : 
 fo that Finch's obfervation muft be confined to the trial of 
 direct and not collateral iflues. And in every cafe fir Edward 
 Coke lays it down, that the affirmative muft be proved by 
 two witnefTes at the leaft. 
 
 z See introd. to the great charter. <J 2 Roll. Abr. 583. 
 
 edit. Oxon.fub anno 1233. 9 Rep. 31. 
 
 a See book I. ch. n. f L. 423. 
 
 k 2 Inft. 632. Show, Parl. C. 38. S i Inft. 6. 
 c Dyer. 229. 
 
 V.
 
 Ch. 22. WRONG s. 
 
 V. THE next fpecies of trial is of great antiquity, but 
 much difufed ; though ftill in force if the parties chufe to 
 abide by it ; I mean the trial by wager 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 victory to him who had the right. 
 The decifion of fuits, by this appeal to the God of battels, is 
 by fome 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- 
 debald, A. D. 501, which are prefervcd 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 h . And it may alfo feem from a pafiage in Velleius 
 PaterculusJ, that the Germans, when firft they became known 
 to 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 incogni- 
 " tae difciplinae, ut folita armis decerni jure terminarentur" 
 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 in England among other Nor- 
 man cuftoms by William the conqueror ; but was only ufed 
 in three cafes, one military,*bne criminal, and the third civil. 
 The firft in the court-martial, or court of chivalry and ho- 
 nour k : the fecond in appeals of felony 1 , of which we fhall 
 fpeak in the next book : and the third upon ifliie joined in a 
 
 h Seld. of duels, c. 5. * Co. Litt. 261. 
 
 j /. 2. c, u8. 1 a Hawk. P. C, 45, 
 
 Stiernh. dejurtSuor., 1. I, f. 7, 
 
 VOL. III. X writ
 
 338 PRIVATE BOOK III. 
 
 writ of right, the laft and moft folemn decifion of real pro- 
 perty. For in writs of right the jus proprtetatis, which is 
 frequently a matter of difficulty, is in queftion ; but other 
 real actions being merely queftions ofthejuspojfijfionis, 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 defect of evidence be 
 unable to prove it to a jury. But the moft curious reafon of 
 all is given in the mirror m , 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 n . Of battel therefore on a writ of right we 
 are now to fpeak ; and although the writ of right itfelf, and 
 of courfe this trial thereof, be at prefent difufed ; yet, as it is 
 law at this day, it may be matter of curiolity, at leaft, 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 1 
 one in the court of chivalry in 1631 ; and another in the 
 county palatine of Durham r in 1638) was in the thirteenth 
 year of queen Elizabeth, A. D. 1571, as reported by fir James 
 Dyer f ; and was held in Tothill-fields, Weftminfter, " non 
 "fine magna juris confultorum perturbatiow" 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 right pleads the general 
 iflue, viz. that he hath more right to hold, than the demand- 
 
 m c. 3. . 23. III. 12. Finch. L. 421. Dyer. 301. 
 
 " Decret.part, 2. cauf. 2. q u. 5. c. 22 , 2 Jnft. 247. 
 
 Append. N. I. . 5. 1 Ru/hw.coll. vol.z. partz. fol 112. 
 
 P Glanvil. l^. c. 3. Vet. nat . bre<v. 19 Rym. 322. 
 fol. a. Nov.Narr.tit.Droitfatent.fe!. ' Cro. Car. jiz, 
 *2I. (edit. 1534.) Yearbook. zgEtlw. f Dyer. 3^1. 
 
 Gle/, 103, 
 
 ant
 
 Ch. 22." WRONGS. 
 
 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 
 throwing down his glove as a gage or pledge, thus wages of 
 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 ; and thereforenojudgment could 
 be given for the lands in queftion, if either of the parties were 
 {lain in battel r : 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, enclofed with lifts, and on one fide a court erect- 
 ed for the judges of the court of common picas, 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 funrifmg, proclamation is made for the parties, and 
 their champions j 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 Ions, and a four-cornered leather target j fo 
 that death very feldom enfued tHs civil combat. In the court 
 military indeed they fought with fword and lance, according 
 to Spelman and Rufliworth; 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 u 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. 
 
 t Co. Litt, 294. Dyverftt dn courts. Sp. L. b. aS. c, 20. T.Z. 
 
 304. 
 
 X 2 WHB
 
 340 PRIVATE BOOK III. 
 
 WHEN the champions, thus armed with batons, arrive 
 within the lifts or place of combat, the champion of the te- 
 nant then takes his adverfary by the hand, and makes oath 
 that the tenements in difpute are not the right of the de- 
 mandant ; and the champion of the demandant, then taking 
 the other by the hand, fwears in the fame manner that they 
 are ; fo that each champion is, or ought to be, thoroughly 
 perfuaded of the truth of the caufe he fights for. Next an 
 oath againft forcery and enchantment is to be taken by both 
 the champions, in this or a fimilar form ; " hear this, ye 
 " juftices, that I have this day neither eat, drank, nor have 
 k * upon me, neither bone, ftone, ne grafs ; nor any inchant- 
 ** 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." 
 
 TH E battel is thus begun, and the combatants are 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 him. 
 to maintain his ground, and make it a drawn battel, he be- 
 ing already in pofleffion ; but, if victory declares itfelf for 
 either 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 refcmblance to certain rural 
 athletic diverfions, which are probably derived from this ori- 
 ginal. Or victory is obtained, if either champion proves 
 recreant^ that is, yields, and pronounces the horrible word of 
 craven ; a word of difgrace and obloquy, rather than of any 
 determinate meaning. But a horrible word it indeed is to 
 the vanquished champion : fince, as a punifhment to him for 
 forfeiting the land of his principal by pronouncing that fhame- 
 iu\ word, he is condemned, as a recreant, amittere liberam 
 , that is, to become infamous, and not be accounted li- 
 ber et legalis homo ; being fuppofed by the event to be proved 
 toi:\vom, and therefore never to be put upon a jury or ad- 
 mitted as a witnefs in anycaule. 
 
 THIS
 
 Gh. 22. WRONGS. 341 
 
 TH I s is the form of a trial by battel ; a trial which the 
 tenant, or defendant in a writ of right, has it in his election 
 at this day to demand ; and which was the only decifion of 
 fuch writ of right after the conqueft, till Henry the fecond 
 by confent of parliament introduced the grand ajjife w , 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 thefe judicial combats, 
 was imitated about a century afterwards in France, by an 
 edict of Louis the pious, A. D. 1260, and foon after by the 
 reft of Europe. The eftablimment of this alternative, Glan- 
 vil, chief juftice to Henry the fecond, and probably his ad- 
 vifer herein, confiders as a moft noble improvement, as in 
 fact it was, of the law*. 
 
 VI. A SIXTH fpecies of trial is by wager of law, vadia- 
 tlo legis, as the foregoing is called wager of battel, vadiatio 
 duelli : becaufe, as in the former cafe the defendant gave a 
 pledge, gage, or vadium, to try the caufe by battel ; fo here 
 he was to put in fureties or vadios, that at fuch a day he will 
 make his law, that is, take the benefit which the law has 
 allowed him y . 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 mall go 
 free and for ever acquitted of the debt, or other caufe of 
 action. 
 
 w Append. N. I. $.6. tern ptrennii infamiae opprobrium illtus in- 
 
 x Eft auttm magna aff:fa regale quod- fefli et irrverecundl -verbi, qv.ul in ore vifli 
 
 dam beneficium, dementia pi Incipis, de turpit-r fonat, eUffttfttVHm. Ex aequi- 
 
 cwjilio precerum, pcpults ir.duttum ; quo tate item maxima prodtta tfl letta'm \fla in- 
 
 ititae bominum, et Jiatus integritati tarn Jlitutio. Jus enim, quod fcjl rr.ul'.at tt 
 
 falubriter cenfulitur, ut, rttintr.d'j quod quis Isngas dilationes-vix rvinciturper dtitltuiH, 
 
 pojfiilet in libero tenemtntofoh, duelli cafum per bencficiitm iflius cor.ftitut'ur.h ccmntr,diut 
 
 dulinare pojjint kominei ambiguum. Ac per et acceliratim cxpeJitur. (A 2. f. 7.) 
 
 hoc cintlngit, infperatae ft praemaiurac 1 Co. Litt. 295. 
 tfiyrtis ultimum evaderejupplicium, veifal- 
 
 X 3 THIS
 
 342 
 
 "P R 1 V A T Z BOOK JH. 
 
 THI s method of trial is not only to be found in the codes 
 of almoft all the northern nations, that broke in upon the 
 Roman empire, and eftablifhed petty kingdoms upon it's 
 ruins z ; but it's 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 fheep, or any beaft, to keep ; and it die, 
 " or be hurt, or driven away, no man feeing it; then fhall 
 <c an oath of the Lord be between them both, that he hath 
 " not put his hand unto his neighbour's goods ; and the 
 * c owner of it fhall accept thereof, and he fhall not make it 
 " good a ." We fhall likewife be able to difcern a manifeft 
 refemblance, between this fpecies of trial, and the canonical 
 purgation of the popifh clergy, when accufed of any capitar 
 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 fimilar alfo to this is the facramentum decifionis^ or 
 the voluntary and decifive oath of the civil law b ; where one 
 of the parties to the fuit, not being able to prove his charge, 
 offers to refer the decifion of the caufe to the oath of his ad- 
 verfary : which the adverfary was bound to accept, or tender 
 the fame propofal back again ; otherwife the whole was taken 
 as confefled by him. But, though a cuftom fomewhat fimi- 
 lar to this prevailed formerly in the city of London c , yet in 
 general the Englifh law does not thus, like the civil, reduce 
 the defendant, in cafe he is in the wrong, to the dilemma of 
 either confeffion or perjury : but is indeed fo tender of per- 
 mitting the oath to be taken, even upon the defendant's own 
 requcft, that it allows it only in a very few cafes ; And in 
 thofe it has alfo devifed other collateral remedies for the party 
 injured, in which the defendant is excluded from his wager 
 of law, 
 
 2 Sp. L. b. 28. e. 13. St'ernhook<fc Exod. xxii. 10. 
 urt Suter-.um, I. I. c. 9. Feud. I, i. t. 4. b Cod. 4. i. 12. 
 
 jo. 28. Bro. Abr, I. Ity gagtr. 77.
 
 Ch. 22. WRONGS. 343 
 
 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 find particularly defcribed fo early as in the league 
 between Alfred and Guthrun the Dane d ; for by the old 
 Saxon conftitution every man's credit in courts of law de- 
 pended -upon the opinion which his neighbours had of his 
 veracity. The defendant then, Handing at the end of the 
 bar, is admonimed by the judges of the nature and danger of 
 a. falfe oath e . And if he (till perfifts, 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 de- 
 " clared againft me. So help me God." And thereupon his 
 eleven neighbours or compurgators fhall avow upon their 
 oaths, that they believe in their confciences that he faith the 
 truth ; fo that himfelf muft be fworn de fidelitate^ and the ele- 
 ven de credulitate f . It is held indeed by later authorities ? 
 that fewer than eleven compurgators will do : but fir Edward 
 Coke is pofitive that there muft be this number ; and his opi- 
 nion not only feems founded upon better authority, but alfo 
 upon better reafon : for, as wager of law is equivalent to a 
 verdict in the defendant's favour, it ought to be eftablifhed 
 by the fame or equal teftimony, namely, by the oath of twelve 
 men. And fo indeed Glanvil exprefies it h , " jurabit duode- 
 *' cima manu :" and in 9 Hen. III. 1 when a defendant in a 
 action of debt waged his law, it was adjudged by the court 
 *' quod defendat fe duodecimo manu." Thus too, in an author 
 of the age of Edward the firft k , we read, " adjudlcabitur reus 
 " ad legem fuam duodecimo manu" And the antient tread fe, 
 entitled, dyverfite des courts, exprefsly confirms fir Edward 
 Coke's opinon '. 
 
 cap. 3. Wilk. LL, Angl. Sax. k Her.gLim magva. c. 5. 
 
 ' Salk. 682. 1 II ccnilfnt aver" oue Ivy x! maynx de 
 
 f Co. Litt. 295. jurer cue luy y fc. que ilz. tnUr.dre en lour 
 
 f 2 Ventr. 171. confciens que il difoyt vsier. (fal, 306. 
 
 h 1. i. e.g. edit. 1534.) 
 
 i Fitzh, Mr. t. Icy. 78, 
 
 X 4 IT
 
 344 PRIVATE BOOK III. 
 
 IT muft be however obfervcd, that fo long as the cuftom 
 continued of producing thefefta, thefuit, or witnefles to give 
 probability to the plaintiff's demand, (of which we fpoke in 
 a former chapter) the defendant was not put to wage his law, 
 unlefs thefefla was Hrft produced, and their teftimony was 
 found confident. To this purpofe fpeaks magnet carta, c. 28. 
 " Nullus balli-vus de caetero ponat aliquem ad legem manifejlam" 
 (that is, wager of bat tel) " nee ad juramentum" (that is, wager 
 of law) "fimplia loqitela fua" (that is, merely by his count 
 or declaration) "fine tejiibus fidelibus ad hoc induftis" Which 
 Fleta thus explains m : " fipetem feflamproduxent, et Concordes 
 " inveniantttr tune reus potent vadiare legem Juam contra peten- 
 *' tern et contra fecJam fuam prolatam ; fedfifecla varied/is in- 
 *' veniatur^ extunc non tenebitur legem vadiare contra fecJarn il- 
 " lam" It is true indeed, that Fleta exprefsly limits the 
 number of compurgators to be only double to that ofthefetfa 
 produced ; *' utjt duos vel tres tejles produxerit ad probandum, 
 " oportet quod defenfio fiat per quatuor vel per fex ; ita quod 
 " pro quolibet tejle duos producatjuratores^ ufque ad duodecim :" 
 fo that according to this doctrine the eleven compurgators 
 were only to be produced^ but not all of them fworn, unlefs 
 thefetfa confifted of/for. But, though this might poflibly be 
 the rule till the production of thejefla was generally difufed, 
 fmce that time the duodecltna menus fecms to have been o-ene- 
 
 O 
 
 rally required n . 
 
 IN the old Swedifh or Gothic conftitution, wager of law 
 was not only permitted, as it ftill is in criminal cafes, unlefs 
 the fal be extremely clear againft the prifoner ; but was 
 alfo abfolutely required, in many civil cafes : which an au- 
 thor of their own p very juftly charges as being the fource of 
 frequent perjury. This, he tells us, was owing to the popifli 
 ecclefiaftics, who introduced this method of purgation from 
 their canon law ; and, having fown a plentiful crop of oaths 
 
 01 /. 2. c. 63. Mod. Un. Hift. xxxiii. 22. 
 
 n Bro. Sibr.t. hy gagtr, 9. P Sticrn\&ok.d(jureSitccnu>n, I. I.f.g. 
 
 in
 
 Ch. 22. WRONGS. 345 
 
 in all judicial proceedings, reaped afterwards an ample har- 
 veft of perjuries : for perjuries were punifhed in part by pe- 
 cuniary fines, payable to the coffers of the church. But 
 with us in England wager of law is never required j and is 
 then only admitted, where an action is brought upon fuch 
 matters as may be fuppofed to be privately tranfadted between 
 the parties, and wherein the defendant may be prefumed to 
 have made fatisfaclion without being able to prove it. There- 
 fore it is only in actions of debt upon fimple contract, or 
 for amercement, in actions of detinue, and of account, where 
 the debt may have been paid, the goods reftored, or the ac- 
 count ballanced, without any evidence of either ; it is only 
 in thefe actions, I fay, that the defendant is admitted towage 
 his law q : fo that wager of law iieth 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- 
 eth by word only. Nor doth it lie in an action of debt, for 
 arrears of an account, fettled by auditors in a former action r . 
 And by fuch wager of law (when admitted) the plaintiff is 
 perpetually barred ; for the law, in the fimplicity of the an- 
 tient times, prefumed that no one would forfwear himfelf, 
 for any worldly thing s . Wager of law however Iieth in a 
 real action, where the tenant alleges he was not legally fum- 
 rnoned to appear, as well as in mere perfonal contracts '. 
 
 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 of battel, fhall not be 
 permitted to wage his law. Neither fhall an infant under the 
 age of twenty one, for he cannot be admitted to his oath ; 
 and therefore, on the other hand, the courfe of juftice fhall 
 flow equally, and the defendant, where an infant is plaintiff, 
 fhall not wage his law. But a feme-covert, when joined with 
 her hufband, may be admitted to wage her law : and an alien 
 fhall do it in his own'language ". 
 
 <1 Co. Litt. 295. t Finch. L. 423. 
 
 r 10 Rep, 703. Co. Litt. 295. 
 
 * Co. Litt. 295. 
 
 IT
 
 346 PRIVATE BOOK III. 
 
 IT is moreover a rule, that where a man is compellable by 
 law to do any thing, whereby he becomes creditor to another, 
 the defendant in that cafe fhall not be admitted to wage his 
 law : for then it would be in the power of any bad man to 
 run in debt firft, againft the inclinations of his creditors, and 
 afterwards to fwear it away. But where the plaintiff hath 
 given voluntary credit to the defendant, there he may wage 
 his law; for, by giving him fuch credit, the plaintiff has him- 
 felf borne teftimony that he is one whofe character may be 
 trufted. Upon this principle it is, that in an action of debt 
 againft a prifoner by a gaoler for his victuals, the defendant 
 fhall not wage his law : for the gaoler cannot refufe the pri- 
 foner, and ought not to fuffer him to perifh for want of fufte- 
 nance. But othcrwife it is for the board or diet of a man at 
 liberty. In an a&ion 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 ftatute of labourers, 5 Eliz. c. 4. 
 which obliges all fmgle perfons of a certain age, and not 
 having other vifible means of livelyhood, to go out to fervice ; 
 in an action of debt for the wages of fuch a fervant, the maf- 
 ter fhall not wage his law, becaufe the plaintiff was compel- 
 lable to ferve. But it had been otherwife, had the hiring 
 been by fpecial contract, and not according to the ftatute w . 
 
 IN no cafe where a contempt, trefpafs, deceit, or any in- 
 jury with force is alleged againft the defendant, is he permitt- 
 ed to wage his law x : 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. 
 
 v ' Cc. Litt, 295. * Ibid, Raym. aS6. 
 
 EXECUTORS
 
 Ch. 22. WRONGS. 547 
 
 EXECUTORS and administrators, when charged for the 
 debt of the deceafed, (hall not be admitted to wage their 
 law y : for no man can with a fafe confcience wage law of 
 another man'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 
 reflection on the plaintiff for difhonefty, therefore there fhall 
 be no fuch wager on actions brought by him *. And this 
 prerogative extends and is communicated to his debtor and 
 accomptant; for, on a writ of quo minus in the exchequer 
 for a debt on fimple contract, the defendant is not allowed 
 to wage his law a . 
 
 THUS the wager of law was never permitted, but where 
 the defendant bore a fair and unreproachable character ; and 
 it alfo was confined to fuch cafes where a debt might be fup- 
 pofed to be difcharged, or fatisfaction made in private, with- 
 out any witnefles to atteft it : and many other prudential re- 
 ftrictions accompanied this indulgence. But at length it was 
 confidered, that (even under all it's reftrictions) it threw too 
 great a temptation in the way of indigent or profligate men : 
 and therefore by degrees new remedies were devifed, and new 
 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, imtead of a modern, ac- 
 tion. Therefore one (hall hardly hear at prefent of an action 
 of debt brought upon a fimple contract : that being fupplied 
 by an action of trefpafs on the cafe for the breach of a promife 
 or affumpfit ; wherein, though the fpecific debt cannot be re- 
 covered, yet damages may, equivalent to the fpecific debt. 
 And, this being an action of trefpafs, no law can be waged 
 therein. So, inftead of an action of detinue to recover the 
 very thing detained, an action of trefpafs on the cafe in trover 
 
 y Finch. L. 424. * Co.Litt. 295. 
 
 z Hid. 425.
 
 348 PRIVATE BOOK III. 
 
 and converfion is ufually brought ; wherein, though the horfe 
 or other fpecific chattel cannot be had, yet the defendant fhall 
 pay damages for the converfion, equal to the value of the 
 chattel ; and for this trefpafs alfo no wager of law is allowed. 
 In the room of actions 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 contradiction to what 
 the defendant has fworn. So that wager of law is quite out 
 of ufe, being avoided by the mode of bringing the action ; 
 but ftill it is not out of force. And therefore, when a new 
 ftatute inflicts a penalty, and gives an action of debt for re- 
 covering it, it is ufual to add, in which no wager of law fhall 
 be allowed : otherwife an hardy delinquent might efcapc 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 ec- 
 centrical cafes ; where the trial by the country, per pais, or 
 by jury, would not be fo proper or effe&ual. In the next 
 chapter we fhall confider at large the nature of that principal 
 criterion of truth in the law of England.
 
 Ch. 23. WRONG s. 349 
 
 CHAPTER THE TWENTY THIRD. 
 OF THE TRIAL BY JURY. 
 
 TH E fubjeft 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 co-eval 
 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 Nicolfon * 
 to Woden himfelf, their great legiflator and captain. Hence 
 it is, that we may find traces of juries in the laws of all thofe 
 nations which adopted the 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 
 jn the lord's courts, fo the king's vafals, or the lords them- 
 felves, judged each other in the king's court b . In England 
 we find adtual mention of them fo early as the laws of king 
 Ethelred, and that not as a new invention . Stiernhook d 
 afcribes the invention of the jury, which in the Teutonic 
 languages is denominated nembda, to Regner, king of Sweden 
 and Denmark, who was co-temporary with cur king Egbert. 
 Juft as we are apt to impute the invention of this, and fome 
 
 a de jure Saxonum, p, Iz. c Wilk. LL, Angl. Sjx. 117. 
 
 k Sp. L. b. 30. c. 18. Cepltul, Lud, d de jure Suetnum. I. i, c. 4. 
 />;';'. A, D. 819. <. 2. 
 
 other
 
 350 PRIVATE BOOK III. 
 
 other pieces of juridical polity, to 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 one 
 Hercules whatever atchievement wa$ performed fuperior to 
 the ordinary prowefs of mankind. Whereas the truth feems 
 to be, that this tribunal was univerfally eftablifhed among all 
 the northern nations, and fo interwoven in their very con- 
 ftitution, that the earlieft accounts of the one give us alfo 
 fome traces of the other. It's eftablifhment however and ufe, 
 in this ifland, of what date foever it be, though for a time 
 greatly impaired and fhaken by the introduction of the 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 infifted on as the principal bulwark of our liber- 
 ties ; but efpecially by chap. 29. that no freeman fhall be 
 hurt in either his perfon or property; " nifi per legak judicium 
 " parium fuorum velper legem terrae" A privilege which is 
 couched in almoft the fame words with that of the emperor 
 Conrad, two hundred years before e : " nemo beneficium fuum 
 " perdat^ nifi fecundum confuetudmem antecejjorum nojlrorum et 
 " per judicium Barium fuorum." And it was ever efteemed, 
 in all countries, a privilege of the higheft and moft beneficial 
 nature. 
 
 BUT I will not mifpend the reader's time in fruitlefs en- 
 comiums on this method of trial : but fhall proceed to the 
 difleclion 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 moft 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-fubjecls ; as becaufe his own 
 property, his liberty, and his life, depend upon maintaining, 
 in it's legal force, the conftitutional trial by jury. 
 
 f LL. Lvigeb. I. 3. /. 8. /. 4. 
 
 TRIALS
 
 Ch. 23. WRONG s.' 351 
 
 TRIALS by jury in civil caufes are of two kinds; extra- 
 trdlnary^ and ordinary. The extraordinary I (hall only briefly 
 hint at, and confine the main of my obfervations to that 
 which is more ufual and ordinary. 
 
 THE firft fpecies of extraordinary trial by jury is that of 
 the grand ajjife^ 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 right, inftead of the barbarous and 
 unchriftian cuftom of duelling. For this purpofe a writ 
 de magna ajjifa eligenda is directed to the fheriff f , to return 
 four knights, who are to elecl and chufe twelve others to be 
 joined with them, in the manner mentioned by Glanvil 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, whieh is to try the matter of 
 right, and muft now confift of fixteen jurors h . 
 
 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. At prefent I fhall only 
 obferve, that this jury is to confift of twenty- four of the beft 
 men in the county, who are called the grand jury in the at- 
 taint, to diftinguifli them from the firft or petit jury ; and 
 thefe are to hear and try the goodnefs of the former verdict. 
 
 WITH regard to the ordinary trial by jury in civil cafes, 
 I fhall purfue the fame method in confidering it, that I fet 
 out with in explaining the nature of profecuting actions in 
 general, viz. by following the order and courfe of the pro- 
 ceedings themfelves, as the moft clear and perfpicuous way 
 of treating it. 
 
 f F. N. B. 4. h Finch. L. 412. i Leon. 303. 
 
 8 /. Z. C. 1121.
 
 352 PRIVATE 
 
 WHEN therefore an ifTue 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 fheriff " that 
 " he caufe to come here on fuch a day, twelve free and law- 
 " ful men, Hberos et legales 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 ifllie between the 
 " faid parties l ." And fuch writ is accordingly iflued to the 
 Iheriff. 
 
 THUS the caufe ftands ready for a trial at the bar of the court 
 itfelf : for all trials were there antiently had, in actions which 
 were there firft commenced ; which never happened but in 
 matters of weight and confequence, all trifling fuits being 
 ended in the court-baron, hundred, or county courts : and 
 all caufes of great importance or difficulty are ftill ufually 
 retained upon motion, to be tried at the bar in the fuperior 
 courts. But when the ufage began, to bring actions of any 
 trifling value in the courts of Weftminfter-hall, it was found 
 to be an intolerable burthen to compel the parties, witnefles, 
 and jurors, to come from Weftmorland perhaps or Cornwall, 
 to try an action of aflault at Weftminfter. A practice there- 
 fore very early obtained, of continuing 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 action 
 arofe k : and if it happened that they arrived there within 
 that interval, then the caufe was removed from the jurifdic- 
 tion of the juftices at Weftminfter to that of the juftices in 
 eyre. Afterwards, when the juftices in eyre were fuperfeded 
 by the modern juftices of aflife (who came twice or thrice in 
 the year into the feveral counties, ad capiendas ajjifas^ to take 
 or try writs of aflife, of mart a" anceftor, novel dijfiijin, nufance, 
 
 i Append. N. II. ^. 4. "jujiiciarii itinerantes frius -vttier'wt ad 
 
 k Semper dabitur dus partibut a juf- " fartet tllai," (Bract, /. 3. tr. I. 
 ticiariis de banzt^ub tall condinone, " niji c. 1 1. . 8.) 
 
 and
 
 Ch. 23. WRONGS, 
 
 and the like) a power was fuperadded by ftatute Weftm. 2. 
 13 Edw. I. c. 30. to thefe juftices of affife to try common 
 iffues in trefpafs, and other lefs important fuits, with direc- 
 tions to return them (when tried) into the court above; 
 where alone the judgment fhould 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 claufe 
 of niji prius was left out of the conditional continuances be- 
 fore-mentioned, and was dire&ed by the ftatute to be inferted 
 in the writs of venire facias \ that is, " that the fheriff fhouid 
 " caufe the jurors to come to Weitminfter (or wherever the 
 " king's courts fhould be held) on fuch a day in eafter and 
 " michaelmas terms ; nifi prius^ unlefs before that day, the 
 " juftices atiigned to take affifes fhall come into his faid 
 " county." By virtue of which the iheriff returned his 
 jurors to the court of the juftices of affife, 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 fheriff 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 Edw. III. c. ii. the method of trials by nife prius was 
 altered ; and it was enacted that no inquefts (except of aflife 
 and gaol -deli very) ftiould be taken by writ of nifi prius , till 
 after the {heriff had returned the names of the jurors to the 
 court above. So that now in almoft every civil caufe the 
 claufe of nifi prius is left out or the writ of venire facias, which, 
 is the fheriff's warrant to warn the jury; and is inferted ink 
 another part of the proceedings, as we fhall fee prefently. 
 
 FOR now the courfe is, to make the fheriff's venire return- 
 able on the laft return of the fame term wherein iflue is joined, 
 viz. hilary or trinity terms ; which, from ;he making up of 
 the ifTues therein, are ufually called iffitable terms. An, he 
 returns the names of the jurors in a panel (a little pane, or 
 oblong piece of parchment) annexed to the writ. This jury 
 
 VOL. III. Y is
 
 354 PRIVATE Bo OK III. 
 
 is not futnmoned, and therefore, not appearing at the day, 
 muft unavoidably make default. For which reafon a compul- 
 iive procefs is now awarded againft the jurors, called in the 
 common pleas a writ of habeas corpora juratorum, and in the 
 king's bench a dijlringas^ commanding the fherifF 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 
 ct defect of the jurors, till the firft day of the next term, then 
 " to appear at Weftminfter ; unlefs before that time, viz. on 
 " wednefday the fourth of March, the juftices of our lord 
 " the king, appointed to take affifes in that county, mall have 
 " come to Oxford, that is, to the place afligned for holding 
 " the aflifes. Therefore the meriffis commanded to have their 
 tc bodies at Weftminfter on the faid firft day of next teraij 
 " or before the faid juftices of affife, if before that time they 
 " come to Oxford; viz. on the fourth of March aforefaid.'* 
 And, as ;he judges are fure to come and open the circuit com- 
 miflions on 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 ajjtfe and nifi prius : among 
 whom (as hath been faid m ) are ufually two of the judges of 
 the courts at Weftminfter, the whole kingdom being divided 
 into fix circuits for this purpofe. And thus we may obferve 
 that the trial of common ifTues, at nift prius? was in it's ori- 
 ginal only a collateral incident to the original bufmefs of the 
 juftices of aflife ; though now, by the various revolutions of 
 practice, it is become their principal civil employment: hardly 
 any thing remaining in ufe of the real B]fifes t but the name. 
 
 IF the fheriff be not an indifferent perfon j 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 (hall be directed to the coroners, who in this, 
 as in many other inftances, are the lubftitutes of the fherifF, 
 to execute procefs when he is deemed an improper perfon. If 
 any exception lies to the coroners, the venire mail be directed 
 to two clerks of the court, or two perfons of the county 
 
 N*. II. . 4. See pag. $$,- 
 
 named
 
 Oh. 23. WRONGS. 
 
 named by the court, and fworn n . And thefe two, who are 
 called eliforS) or electors, fhall indifferently name the jury, 
 and their return is final j no challenge being allowed to their 
 array. 
 
 LET us now paufe awhile, and obferve (with fir Matthev/ 
 Hale ) in thefe firft preparatory ftages of the trial, how admi- 
 rably this conftitution is adapted and framed for the invefti- 
 gation of truth, beyond any other method of trial in the world t 
 For, firft the perfon returning the jurors is a man of iomft 
 fortune and confequence; that fo he may be not only the lefs 
 tempted to commit wilful errors, but liLewife 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 panel is re- 
 turned to the court upon the original venire^ and the jurors 
 are to be fummoned and brought in truiny weeks afterwards 
 to the trial, whereby the parties may have notice of the jurors, 
 and of their fufficiency or inlufficiency, characters, 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 diftringas or habeas corpora) the caufe is not like 
 to be retarded through defecr. 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 aflifes, held in the county where the caufe of action, 
 arifes, and the witneffes and jurors live : a provifion moft 
 excellently calculated for the faving of expenie to the parties. 
 For, though the preparation of the caufes in point of plead- 
 ing is tranfaled at Weftminfter, whereby the order and 
 uniformity of proceeding is preferved throughout ttu king- 
 dom, and multiplicity of forms is prevented ; yet this is no 
 great charge or trouble, one attorney being able to tranfkdt 
 the bufinefs of forty clients. But the troubleibme and moil 
 expenfive attendance is that of jurors and witnefTes at the 
 trial; which therefore is brought home to them, in du coun- 
 try where moft of them inhabit. Fourthly, the / erfons before 
 
 n Fortefc.'A Laud. LL. c. 25. Co. Litt. 158. <> Hift. C. L. c. 12. 
 
 Y 2 whom
 
 356 PRIVATE BOOK ILL 
 
 whom they are to appear, and before whom the trial is to 
 be held, are the judges of the fuperior court, if it be a trial 
 at bar j or the judges of affife, delegated from the courts at 
 Weftminfter by the king, if the trial be held in the country : 
 perfons, whofe learning and dignity fecure their jurifdi&ion 
 from contempt, and the novelty and very parade of whofe 
 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 of 
 aflife fhould hold pitas in any county wherein he was born 
 or inhabits. And, as this conftitution prevents party and 
 faction from intermingling in the trial of right, fo it keep* 
 both the rule and the adminiftration of the laws uniform. 
 Thefe juftices, though thus varied and fhifted at every aflifes, 
 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 connected and their judg- 
 ments blended together, as they are interchangeably courts 
 of appeal or advice to each other. And hence their admini- 
 frration of juftice, and conduct of trials, are confonant and 
 uniform; whereby that confufion and contrariety are avoided, 
 which would naturally arife from a variety of uncommuni- 
 cating judges, or from any provincial eftabliihment. But 
 let us now return to the aflifes. 
 
 WHEN the general day of trials is fixed, the plaintiff or 
 his attorney muft bring down the record to the aflifes, and 
 enter it with the proper oiEcer, in order to it's being called 
 on in courfe. If it be not fo entered > it cannot be tried ; 
 therefore it is in the plaintiff's breatf to delay any trial by not 
 carrying down the record : unlefs the defendant, being fear- 
 ful of fuch neglect in the plaintiff, and willing to difcharge 
 himfelf from the action, will himfelf undertake to bring on 
 
 the
 
 Ch. 23. WRONGS. 357 
 
 the trial, giving proper notice to the plaintiff. Which pro- 
 ceeding is called the trial by provifo ; by reafon of the claufe 
 then inserted in the flieriff's venire, viz. "provifo, provided 
 " that if two writs come to your hands, (that is one from 
 *' the plaintiff and anothsr from the defendant) you fhall 
 <c execute only one of them." But this* practice begins to 
 be difufed, fmce the ftatute 14660. II. c. 17. which enacts, 
 that if, after iffue joined, the caufe is not carried down to be 
 tried according to the courfe of the court, the plaintiff mall 
 be efteemed to be nonfuited, and judgment (hall 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 Jaft men- 
 tioned ftatute. The defendant however, or plaintiff, may, 
 upon good caufe {hewn to the court above, as upon abfence 
 or ficknefs of a material witnefs, obtain leave upon motion 
 to defer the trial of the caufe till the next affifes. 
 
 BUT we will now fuppofe all previous fteps to be regu- 
 larly fettled, and the caufe to be called on in court. The 
 record is then handed to the judge, to perufe and obferve the 
 pleadings, and what iffues the parties are to maintain and 
 prove, while the jury is called and fworn. To this end the 
 fheriff returns his compulfive procefs, the writ of habeas cor- 
 pora^ or diflrirtgas^ with the panel of jurors annexed, to the 
 judge's officer in court. The jurors contained in the panel 
 are either fpedal or common jurors. Special juries were origi- 
 nally introduced in trials ac bar, when the caufes were of too 
 great nicety for the difcuflion of ordinary freeholders ; or 
 where the fheriff was fufpected of partiality, though not upon 
 fuch apparent caufe, as to warrant an exception to him. He 
 is in fuch cafes, upon motion in court and a rule granted 
 thereupon, to attend the prothonotary or other proper officer 
 with his freeholder's book ; and the oificer is to take indiffe- 
 
 Y 3 ready
 
 358 PRIVATE BOOK III. 
 
 rcntly forty- eight of the principal freeholders in the prefence 
 of the attornies on both fides : who are each of them to ftrike 
 off twelve, and the remaining twenty-four are returned upon 
 the panel. By the ftatute 3 Geo. II. c. 25. either party is 
 entitled upon motion to have a fpecial jury ftruck upon the 
 trial of any iffue, as well at the affifes as at bar ; he paying 
 the extraordinary expenfe, 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 fheriff according 
 to the directions of the ftatute 3 Geo. II. c. 25. which ap- 
 points, that the fheriff or officer fhall not return a feparate 
 panel for every feparate caufe, as formerly ; but one and the 
 fame paneWbr 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, fhall 
 be put into a box or glafs ; and when each caufe is called, 
 twelve of thefe perfons, whofe names fhall be firft drawn out 
 of the box, fhall be fworn upon the jury, unlefs abfent, chal- 
 lenged, or excufed ; or unlefs a previous view of the mef- 
 fuagcs, lands, or place in queftion, fhall have been thought 
 neceflary by the' court P : in which cafe fix or more of the 
 jurors returned, to be agreed on by the parties, or named by 
 a judge or other proper officer of the court, fhall be appointed 
 by fpecial writ of habeas corpora or dijlringas, to have the mat- 
 ters in queftion fhewn to them by two perfons named in the 
 writ; and then fuch of the jury as have had the view, or fo 
 many of them as appear, fhall be fwom on the inqueft previous 
 to any other jurors. Thefe als are well calculated to re- 
 ftrain any fufpicion of partiality in the fheriff, or any tam- 
 pering with the jurors when returned. 
 
 As the jurors appear, when called, they fhall be fworn, 
 unlefs challenged by either party. Challenges are of two forts j 
 challenges to the array ^ and challenges to the polk. 
 
 P Stat. 4 Ann. c. 16.
 
 Ch. 23. WRONGS. 359 
 
 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 Sheriff in his return ; and they may be made 
 upon account of partiality or fome default in the fheriff, 
 or his under-officer who arrayed the panel. And, generally 
 fpeaking, the fame reafons that before the awarding the ve- 
 nire were fufficient to have directed it to the coroners or 
 elifors, will be alib fufficient to quafli the array, when made 
 by a perfon or officer of whofe partiality there is any tolerable 
 ground of fufpicion. Alfo, though there be no perfonal ob- 
 jection againft the fheriff, yet if he arrays the panel at the 
 nomination, or under the direction of either party, this is 
 good caufe of challenge to the array. Formerly, if a lord 
 of parliament had a caufe to be tried, and no knight was 
 returned upon the jury, it was a caufe of challenge la 
 the array q : but an unexpected ufe having been made of this 
 dormant privilege by a fpiritual lord % it was abolimed loy 
 ftatute24Geo. II. c. 18. But ftill, in an attaint, a knight 
 muft be returned on the jury 1 ". Alfo, by the policy of the 
 antient law, the jury was to come tie vicineto^ from the neigh- 
 bourhood of the vill or place where the caufe of action was 
 laid in the declaration : and therefore fome of the jury were 
 obliged to be returned from the hundred in which fuch vill 
 lay ; and, if none were returned, the array might be chal- 
 lenged for defect of hundredors. Thus the Gothic jury, or 
 nembda^ was alfo collected out of every quarter of the coun- 
 try : " binos, trinos^ vel etiam fenos^ ex fingnlis territorii qua- 
 " drantibus s ." For, living in the neighbourhood, they were 
 properly the very country, or pats , to which both parties had 
 appealed ; and were fuppofed to know beforehand the cha- 
 racters of the parties and witnefles, and therefore the better 
 knew what credit to give to the fails alleged in evidence. 
 But this convenience was overbalanced by another very na- 
 tural and almoft unavoidable inconvenience ; that jurors, 
 coming out of the immediate neighbourhood, would he apt 
 
 S Co. Litt. 156. SelJen baronage. II. 23 Geo. II, B. R. 
 II. f Co. Litt. 156. 
 
 r K. v, Biihon of Worceftr, M. Sucyiaopk dtjun G<*b. I, i. r.4 
 
 Y 4 to
 
 360 PRIVATE BOOK III. 
 
 to intermix their prejudices and partialities in the trial of 
 rio-hr. And this our law was fo fenfible of. that it for a long 
 
 O O 
 
 time has been gradually relinquifhing this practice ; the num- 
 ber of neceflary hundredors in the whole panel, which in the 
 reign of Edward III were conftantlyy?.*- l , being in the time 
 of Fortefcue u reduced to four. Afterwards indeed the ftatute 
 35 Hen. VIII. c. 6. reftored the antient number of Jix, but 
 that claufe was foon virtually repealed by ftatute 27 Eliz. 
 c. 6. which required only two. And fir Edward Coke alfo v 
 gives us fuch a variety of circumftances, whereby the courts 
 permitted this neceflary number to be evaded, that it appears 
 they; were heartily tired of it. At length, by ftatute 4 & 5 
 Ann. c. 1 6. it was entirely abolifhed 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 
 comitatus^ from the body of the county at large, and not de 
 vicineto, 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 linguae^ fuch a one be not return- 
 ed by theftieriff, purfuant to the ftatute 28 Edward III. c. 13. 
 enforced by 8 Hen. VI. c. 29. which enact, that where either 
 party is an -alien born, the jury fhall 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 Walliae (then aliens to the crown of England) 
 cap. 3. it is ordained, that " duodeni legales homines^ quorum 
 " fex JValli et fex Angli erunt^ Anglis et Wallis jus dicunto." 
 But where both parties are aliens, no partiality is to be pre- 
 fumed to one more than another ; and therefore it was re- 
 folved foon after the ftatute 8 Hen. VI w . that where the 
 ifiue is joined between two aliens (unlefs the plea be had be- 
 fore the mayor of the ftaple, and thereby fubjecl to the reftric- 
 tions of ftatute 27 Edw. III. ft. 2. c. 8.) the jury (hall all 
 be denizens. And it now might be a queftion, how far the 
 
 t Glib. Hift. C. P. c. S. v r inft. 157. 
 
 de Liiid. LL. c, 25. * Vearb. 21 Hen. VI. 4. 
 
 ftatute
 
 Ch. 23. WRONGS. 361 
 
 ftatute 3 Geo. II. c. 25. (before referred to) hath in civil 
 caufes undefignedly abridged this privilege of foreigners, by 
 the pofitive directions therein given concerning the manner 
 of 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 cirecl: a panel to be returned 
 de medietate linguae^ 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 anfv/er the recufatio judicis in 
 the civil and canon laws ; by the constitutions of which a 
 judge might be refufed upon any fufpicion of partiality *. 
 By the laws of England alfo, in the times of Braclen ? and 
 Fleta 2 , a judge might be refufed for good caufe ; but now 
 the law is otherwife, and it is held that judges or juftices 
 cannot be challenged a . For the law will not fuppofe a pof- 
 fibility of bias or favour in a judge, who is already fworn to 
 adminffter impartial juftice, and whofe authority greatly de- 
 pends upon that preemption and idea. And fhould the fa& 
 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 conduct. 
 
 BUT challenges to the polls of the jury (who are judges 
 of fact) are reduced to four heads by fir Edward Coke b : 
 propter honoris refpeftum j propter defettum ; propter affeftum ; 
 and propter deliflum. 
 
 I. Propter honoris refpeftum ; 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. r. 16. Decretal. /. 2. /. 28. z /. 6. c. 37. 
 
 t" I*?- a Co. Litt. 294. 
 
 Y 1. 5- f- T 5- b llnft. 156. 
 
 2. Proper
 
 362 PRIVATE' BOOK III. 
 
 2. Propter defefium ; as if a juryman be an alien born, this 
 is defect of birth j if he be a flave or bondman, this is defedl 
 of liberty, and he cannot be liber et legalis homo. Under the 
 word homo alfo, though a name common to both fexes, the 
 female is however excluded, propter defettum fexus : except 
 when a widow feigns herfelf with childj in order to exclude 
 the next heir, and a fuppofititious birth is fufpeded to be in- 
 tended ; then upon the writ de venire infpiciendo^ a jury of 
 women is to be impanelled to try the queftion, whether with 
 child, or not c . But the principal deficiency is detect of 
 eftate, fufficient to qualify him to be a juror. This depends 
 upon a variety of ftatutes. And, firft, by the ftatute Weftm. 2. 
 I3Edw. I. c. 38. none fhall pafs on juries in affifes within 
 the county, but fuch as may difpend 20*. by the year at the 
 leaftj which is increafed to 40 s. by the ftatute 21 Edw. I. 
 ft. i. and 2 Hen. V. ft. 2. c. 3. This was doubled by the 
 ftatute 27 Eliz. c. 6. which requires in every fuch cafe the 
 jurors to have eftate of freehold to the yearly value of 4/. at 
 the leaft. But, the value of money at that time decreafmg 
 very coniiderably, this qualification was raifed by the ftatute 
 1 6 & 17 Car. II. c. 3. to 20 /. per annum, which being only 
 a temporary a&, for three years, was fuffbred to expire with- 
 eut renewal, to the great debafement of juries. However by 
 the ftatute 4 and 5 W. & M. c. 24. it was again raifed to 
 io/. per annum in England and 61. in Wales, of freehold lands 
 r copyhold-, which is the firft time that copyholders (as fuch) 
 were admitted to ferve upon juries in any of the king's courts, 
 tjhough they had before been admitted to ferve in fome of the 
 fheriff's courts, by ftatutes i Ric. III. c. 4. and 9 Hen. VII. 
 c. 13. And, laftly, by ftatute 3 Geo. II. c. 25. any Ieaf- 
 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 referred, is quali- 
 fied to ferve upon juries. When the jury is de medietate Un- 
 guae, that is, one moiety of the English tongue or nation, 
 and the other of any foreign one, no want of lands lhall be 
 
 c Cro. Eliz. 566. 
 
 caufe
 
 Ch. 23. WRONGS. 
 
 caufe of challenge to the alien ; for, as he is incapable to 
 
 hold any, this would totally defeat the privilege d . 
 
 3. JURORS may be challenged propter affeftum, for fuf- 
 picion of biafs or partiality. This may be either a principal 
 challenge, or to the favour. A principal challenge is fuch, 
 where the caufe afiigned 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 e ; that 
 he has been arbitrator on either fide; that he has an intereft 
 in the caufe ; that there is an action depending between him 
 and the patty; 'that he has taken money for his verdict; that 
 he has formerly been a juror in the fame caufe ; that he is the 
 party's maftei, fervant, counfellor, {reward or attorney, or of 
 the fame fociety or corporation with him : all thefe are prin- 
 cipal caufes of challenge ; which, if true, cannot be over- 
 ruled, for jurors muft be ornni exceptione majores. Challenges 
 to the favour, are where the party hath no principal challenge ; 
 but objects only fome probable circumftances of fufpicion, as 
 acquaintance, and the like f ; 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 firft man called be challenged, are two indifferent 
 perfons named by the court ; and, if they try one man and 
 find him indifferent, he fhall be fworn ; and then he and the 
 two triors (hall try the next; and, when another is found in- 
 different and fworn, the two triors {hall be fuperfeded, and 
 the two firft fworn on the jury {hall try the reft %. 
 
 4. CHALLENGES propter deliftvm are for ibme crime or 
 mifdemefnor, that affects the juror's credit and renders him 
 infamous. As for a conviction of treafon, felony, perjury, or 
 confpiracy ; or if for fome infamous offence he hath received 
 judgment of the pillory, tumbrel, or the like j or to be brand- 
 
 * See Stat. 2. Hen. V. ft. 2. c. 3. challenges were indefinite. " Licebat 
 
 S Hen. VI. c. 29. " paliim excifcre, et femper ex frababilt 
 
 c Finch. L.4OT. " caufa tres rep udiare 5 etiam f lures tx 
 
 f In the nembfla, or jury, of the an- " caufa praegnatiti ct mttn'fif.a" (Stiern- 
 
 tient Goths, three challenges only were hook. /. i. c. 4.) 
 sallowed to the favour, but the principal g Co* Liu. 158.
 
 364 PRIVATE BOOK III. 
 
 ed, whipt, or ftigmatized ; or if he be outlawed or excommu- 
 nicated, or hath been attainted of falfe verdict, praemunire, or 
 forgery ; or laftly, if he hath proved recreant when champion 
 in the trial by battel, and thereby hath loft his liberam legem. 
 A juror may himfelf be examined on oath of voir dire, verita- 
 tem dicere, with regard to fuch cauies of challenge, as are 
 not to his difbonour or difcredit : but not with regard to 
 
 * O 
 
 any crime, or any thing which tends to his difgrace or 
 difadvantage h . 
 
 BESIDES thefe challenges, which are exceptions againft 
 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 excufed^ and not excluded. As by ftatute Weft. 2. 
 13 Edw. I. c. 38. fick and decrepit perfons, perfons notcom- 
 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- 
 fons, counfel, attorneys, officers of the courts, and the like ; 
 all of whom, if impanelled, muft (hew their fpecial exemp- 
 tion. Clergymen are alfo ufually excufed, out of favour and 
 refpe& to their function : but, if they are feifed of lands and 
 tenements, they are in ftrictnefs liable to be impanelled in 
 refpecl of their lay fees, unlefs they be in the fervice of the 
 king or of fome bifliop ; " in obfequio domini regis, velalicujut 
 
 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 tales. A tales is a fupply oifucb men, 
 as are fummoned upon the firft panel, in order to make up 
 the deficiency. For this purpofe a writ of decent tales, celt) 
 tales, and the like, was ufed to be iflfued to the fheriffat com- 
 mon law, and muft be ftill fo done at a trial at bar, if the 
 jurors make default. But at the affifes or nifiprius, by vir- 
 tne of the ftatute 35 Hen, VIII. c. 6. and other fubfequent 
 
 h Co. Lilt. 158. b, F. N, B. 166. Reg. Ertv. 179. 
 
 ftatutes,
 
 Ch. 23. WRONGS. 365 
 
 ftatutes, die judge is impowered at the prayer of either party 
 to award a tales de circumjjantibus]) 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. This is ufuallydone, till the legal number of twelve 
 be completed ; in which patriarchal and apoftolical number 
 fir Edward Coke k hath difcovered abundance of myftery 1 . 
 
 WHEN a fufficient number of perfons impanelled, or 
 tales-men, appear, they are then feparately fworn, well and 
 truly to try the iflue between the parties, and a true verdicT: 
 to give according to the evidence ; and hence they are deno- 
 minated the jury, jurata, and jurors, 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 ttfelf, in the conftitution 
 and frame of a tribunal, thus excellently contrived for the 
 teft and inveftigation of truth; which appears moft remark- 
 ably, i. In the avoiding of frauds and fecret management, 
 by electing the twelve jurors out of the whole panel by lot. 
 2. Jn it's caution againft all partiality and bias, by quaihing 
 the whole panel or array, if the officer returning is fufpected 
 to be other than indifferent ; and repelling particular jurors, 
 if probable caufe be flievvn of malice or favour to either party. 
 The prodigious multitude of exceptions or challenges allow- 
 ed to jurors, who are the judges cf'fact, amounts nearly to the 
 fame thing as was praclifed in the Roman republic, before 
 fhe loft her liberty: that the felet judges fhould be appoint- 
 ed by the praetor with the mutual confent of the parties. 
 
 j Append. N. II. . 4. to be of much higher antiquity in Eog- 
 
 k i Inft. 155. land) tells us that among the inhabitants 
 
 1 Paufanias relates, that at the trial of Norway, from whom the Normans 
 
 of Mars, for murder, in the court deno- as well as the Danes were defcended, a 
 
 minated arcopagta from that incident, great veneration was paid to the number 
 
 he was acquitted by a jury compcfed of twelve : " ribil fanfiius, nihil antlytiius 
 
 twelve pagan deities. And Dr. H'cker, l( fuit ; perinde a c Jl In iffo hoc numera 
 
 who attributes the introdu&ion of this " fecreta quaedam tjct religio." (DiJ/crt. 
 
 number to the Normans, (though he al- cpiftotar. 4.) 
 
 lows the ioftitution of juries in general 
 
 Or,
 
 366 PRIVATE BOOK III. 
 
 Or, as Tully m expreffes it : " neminem voluerunt majores nojiri, 
 " non modo de ex'ijlimatlone cujufquam, fed ne pecuniar ia quidem 
 " de re minima^ ejje judicem ; nifi qui inter adverfarios con- 
 " veni/et." 
 
 INDEED thefe fekfii judices bore in many refpe&s a re- 
 markable refemblance to our juries : for they were firft re- 
 turned by the praetor; de decuria fenatoria confcribuntur : then 
 their names were drawn by lot, till a certain number was 
 completed ; in urnam fortito rnittuntur^ ut de pluribus neceffa- 
 rius nutnerus confici poffet: then the parties were allowed their 
 challenges ; pojl urnam permittitur accufatori, ac reo, ut ex illo 
 numero rejiciant quos putaverint fibi out inimicos aut ex aliqua re 
 incommodos fore : next they ftruck what we call a tales ; re- 
 jeflione celebrata^ in eorum locum qui rejecli fuerunt fubfortieba- 
 tur praetor alios^ quibus ille judicum legitimus numeru$ complere- 
 tur : laftly, the judges, like our jury, were fworn ; his per- 
 feflh^jurabant in leges judices y ut objlrili religionejudicarent n . 
 
 THE jury are now ready to hear the merits ; and, to fix 
 their attention the clofer to the fals 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 ifiue. For the ifTue is faid to lie, and proof is 
 always firft required, upon that fide which affirms the mat- 
 ter in queftion ; in which our law agrees with the civil ; 
 *' ei incumbit probatio^ qui dicit y non qui negat : cum per rerum 
 " naturam faftum-negantis probatio nullafit" The opening 
 counfel briefly informs them what has been tranfa&ed in the 
 court above ; the parties, the nature of the action, the de- 
 claration, the plea, replication, and other proceedings, and 
 laftly, upon what point the iffue is joined, which is there 
 fent down to be determined. Inftead of which formerly P 
 the whole record and procefs of the pleadings was read to 
 
 "> pro Clutntie. 43. the judices felelli. of the Romans, and the 
 
 n Afcon. in Cic, Verr. I. 6. A learn- juries of the Englirti, that he is tempted 
 
 ed writer of our own, Dr. Pettingal, to conclude that the latter are derived 
 
 hath ihewn in an elaborate work (pub- from the former. 
 
 liined A. D. 1769.) fo many rcfem- * Ff. 22. 3. z. Cod. 4. 19. 23. 
 
 llauces between the }t^ri of theGreeksj P Fortefc. s. 26. 
 
 them
 
 Ch. 23. WRONGS* 367 
 
 them in Engliih by the court, and the matter in iflue clearly- 
 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 j 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, 
 
 THS nature of my prefent flefign will not permit me to 
 enter into the numberlefs niceties and diftinctions of what is, 
 or is not, legal evidence to a jury ?. I {hall only therefore 
 felet a few of the general heads and leading maxims, rela- 
 tive to this p.oint, together with fome obfervations on the 
 manner of giving evidence. 
 
 AND, firft, evidence fignifies that which demonstrates, 
 makes clear, or afoertains the truth of the very fa<3: or point in 
 iflue, either on the one fide or on the other ; and no evidence 
 ought to be admitted to any other point. Therefore upon 
 an alion of debt, when the defendant denies his bond by 
 the plea of non ejlfaflum, 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 exiflence. 
 
 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 the.ir own private knowlege. The former, 
 or proofs , (to which in common fpeech the name of evidence 
 is ufually confined) are either written, or parol t that is, by 
 word of mouth. Written proofs, or evidence, are, i. Re- 
 cords, and 2. Antient deeds of thirty years ftanding, which 
 prove themfelves ; but 3, Modern deeds, and 4. Other wri- 
 
 9 This is admirably well performed the chain of the whole j and which hath 
 
 iu lord chief baron Gilbert's excellent lately been engrafted into a very ufeful 
 
 treatife of evidence : a work, which it work, the introriuctltn to <b: Inv of niji 
 
 is impoflible to abflraft or abridge, with- frits, 4 1 '. 1767. 
 out tafing fome beauty and Ueftroying 
 
 tings,
 
 368 PRIVATE BOOK III. 
 
 tings, murr. be attefted and verified by parol evidence of wit- 
 nefles. And the one general rule that runs through all the 
 doctrine of trials is this, that the beft evidence the nature of 
 the cafe will admit of {hall always be required, if poffible to 
 be had ; but, if not poffible, then the beft evidence that can 
 be had (hall be allowed. For if it be found that there is any 
 better evidence exifting than is produced, the very not pro- 
 ducing it is a prefumption that it would have detected Ibme 
 falfehood that at prefent is concealed. Thus, in order to prove 
 a leafe for years, nothing elfe fhall be admitted but the very 
 deed of leafe itfelf, if in being ; but if that be pofitively proved 
 to be burnt or deftroyed (not relying on any loofe negative, 
 as that it cannot be found, or the like) then an attefted copy 
 may be produced j or parol evidence be given of it's contents. 
 So, no evidence of a difcourfe with another will be admitted, 
 but the man himfelf muft be produced ; yet in fome cafes 
 (as in proof of any general cuftoms, or matters of common 
 tradition or repute) the courts admit of hearfay evidence, or 
 an account of what perfons deceafed have declared in their 
 life-time : but fuch evidence will not be received of any par- 
 ticular fails. So too, books of account, or flaop-books, are 
 not allowed of themfelves to be given in evidence for the 
 owner ; but a fervant who made the entry may have recourfe 
 to them to refrdh his memory : and, if fuch fervant (who 
 was accuftomed to make thofe entries) be dead, and his hand 
 be proved, the book may be read in evidence r : for, as 
 tradefmen are often under a neceffity of giving credit without 
 any note or writing, this is therefore, when accompanied 
 with fuch other collateral proofs of fairnefs and regularity f , 
 the beft evidence that can then be produced. However this 
 dangerous fpecies of evidence is not carried fo far in England 
 as abroad s ; where a man's own books of accounts, by a dif- 
 tortion of the civil law (which feems to have meant the fame 
 thing as is pra&ifed with us') with the fuppletory oath of 
 
 f LCAV of n'Ji prim. 266. ed prolttbnem fela nov-f'.fficiunt . (Ccd. 4. 
 
 f Salk. 285. J 9- 5-) Nam exempL 'pernicicfum ejl, ut 
 
 Gaii. cif.r-i'Jt. 2.. 1O. 2.3. ei fcripturac creditur, qua unufquifqut 
 
 lnjir-umenta d^nhftl a, feu adnctath, fitl adr.otationefrofria dcbltarem conflituit, 
 
 Jl non aiiii gucqui admiriicid.i adjuventur, (Uid. /. 7.) 
 
 the
 
 Ch. 23. WRONGS. 369 
 
 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 tranfactions as 
 have happened within one year before the action brought ; 
 unlefs between merchant and merchant in the ufual inter- 
 courfe of trade. For accounts of fo recent a date, if erro- 
 neous, may more eafily be unravelled and adjufted. 
 
 WITH regard to parol evidence, or witnejfis ; it muft firft 
 be remembered, that there is a procefs to bring them in by 
 writ of fubpoena ad tejlificandum ; which commands them, 
 laying afide all pretences and excufes, to appear at the trial 
 on pain of ioo/. to be forfeited to the king; to which the 
 ftatute 5 Eliz. c. 9. has added a penalty of io/. to the 
 party aggrieved, and damages equivalent to the lofs fuftained 
 by want of his evidence. But no witnefs, unlefs his reafon- 
 able expenfes be tendered him, is bound to appear at all ; 
 nor, if he appears, is he bound to give evidence till fuch 
 charges are actually paid him : except he reficies within the 
 bills of mortality, and is fummoned to give evidence within 
 the fame. This compulfory procefs, to bring in unwilling 
 witnefles, and ;he additional terrors of an attachment in cafe 
 of difobedience, are of excellent ufe in the thorough invcfti- 
 gation of truth : and, upon the fame principle, in the Athe- 
 nian courts, the witnefies who were fummoned to attend the 
 trial had their choice of three things ; either to fwear to the 
 truth of the fadl: in queftion, to deny or abjure it, or elfe to 
 pay a. fine of a thouiand drachmas . 
 
 ALL witnefies, of whatever religion or country, that have 
 the ufe of their reafon, are to be received and examined, ex- 
 cept fuch as are infamous^ or fuch as are inter eft ed in the event 
 of the caufe. All othf rs are competent wicnefTes ; though the 
 jury from other circumitances will judge of their credibility. 
 
 * Pott. Antiq. b. i. c, si. 
 
 VOL. IIL Z Infamous
 
 370 PRIVATE BOOK III. 
 
 Infamous perfons are fuch as may be challenged as jurors, 
 f ropier deliftum ; and therefore never {hall be admitted to giv 
 evidence to inform that jury, with whom they were too fcan- 
 dalftus to aflbciate. Interested witnefles may be examined 
 upon a voir dire, if fufpe&ed to be fecretly concerned in the 
 event ; or their intereft may be proved in court. Which laft 
 is the only method of fupporting an objection to the former 
 clafs ; for no man is to be examined to prove his own infa- 
 my. And no counfel, attorney, or other perfon, intruded 
 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 knowlege 
 by virtue of fuch truft and confidence v : but he may be ex- 
 amined as to mere matters of fat, as the execution of a deed 
 or the like, which might have come to his knowlege without 
 being intruded in the caufe. 
 
 ONE witnefs (if credible) \sfitffident evidence to a jury of 
 any fingle fa& ; though undoubtedly the concurrence of two 
 or more corroborates the proof. Yet our law confiders that 
 there are many tranfa&ions to which only one perfon is privy ; 
 and therefore does not always demand the teftimony of two, 
 as the civil law univerfally requires. " Unius refponfio teflls^ 
 " omnino non audiatur w ." To extricate itfelf out of which 
 abfurdity, the modern practice of the civil law courts has 
 plunged itfelf into another. For, as they do not allow a lefs 
 number than two witnefles to be plena probatio^ they call the 
 .teftimony of one, though never fo clear and pofitive, feml- 
 plena probatio only, on whom no fentence can be founded. 
 To make up therefore the neceflary complement of witnefles, 
 when they have one only to any fingle fat, they admit the 
 party himfelf (plaintiff or defendant) to be examined in his 
 own behalf j and adminifter to him what is called thefuppk- 
 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 reafona- 
 
 r Law of nifi fr;tts. 267. " CiJ, 4. to, 9, 
 
 blenef*
 
 Ch. 23. WRONGS. 
 
 blenefs of the law of England : which permits one witnefs 
 tojje fufficient where no more are be to had ; and, to avoid 
 all temptations of perjury, lays it down as an invariable rule, 
 that nemo tejlis ejje debet in propria caufa. 
 
 POSITIVE proof is always required, where from the nature 
 of the cafe it appears it might poffibly have been had. But, 
 next to pofitive proof, circumftantial evidence or the doctrine 
 of preemptions muft take place: for when the fa& itfelf can- 
 not be demonftratively evinced, that which comes neareft to 
 the proof of the fat is the proof of fuch circumftances which 
 either necejjarily^ or ufually, attend fuch fa&s ; and thefe are 
 called prefumptions, which are only to be relied upon till the 
 contrary be actually proved. Stabitur praefumptioni donee 
 probetur in contrarium x . Violent prefumption is many times 
 equal to full proofs j for there thofe circumftances appear, 
 which necej/arily 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- 
 fequent 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 fhall be ad- 
 mitted to the contrary z . Probable prefumption, arifing from 
 fuch circumftances as ufually attend the fa&, hath alfo it's 
 due weight: as if, in a fuit for rent due 1754, the tenant 
 proves the payment of the rent due in 1755 ; this will pre- 
 vail to exonerate the tenant % unlefs it be clearly fhewn that 
 the rent of 1754 was retained for feme 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^ or 
 *a(h, prefumptions have no weight or validity at all. 
 
 * Co. Litt. 373, z Gilb.evid. 161. 
 
 r Ibid, 6. a Co, Litt. 373. 
 
 Z 2 TH*
 
 37 2 
 
 PRIVATE BOOK. III. 
 
 THE oath adminiftered to the witnefs is not only that 
 what he depofes fhall be true, but that he fhall alfo depofe 
 the whole 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 counfel, and 
 all by-ftanuers ; and before the judge and jury: each party 
 having liberty to except toil's competency, which exceptions 
 are publicly ftated, 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 directions or deciftons, 
 he mis-ftates the law by ignorance, inadvertence, or defign, 
 the counfel on either fide may require him publicly to feal a- 
 bill of exceptions ; ftating the point wherein he is fuppofed to 
 err : and this he is obliged to fcal by ftatute Weftm. 2. 
 i3Edw. I. c. 31. or, if he refufes fo to do, the party may 
 have a compulfory writ againft him b , commanding him to 
 feal it, if the facl alleged be truly ftated : and if he returns, 
 that the fa& is untruly ftated, when the cafe is otherwife, an 
 a&ion 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 ntfi prius 9 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 thejegal 
 confequences of which there arifcs a doubt in law : in which 
 cafe the adverfe party may if he pleafes demur to the whole 
 evidence j which admits the truth of every fa6l that has been 
 alleged, but denies the fufficiency of them all in point of law 
 to maintain or overthrow the iflue c : which draws the quef- 
 tion of law from the cognizance of the jury, to be decided 
 (as it ought) by the court. But neither thefe demurrers ta 
 evidence, nor the bills of exceptions, are at prefent fo much 
 
 k Reg. Er. 181. z Inft. 487. c Co. Litt. 72. 5 Rep, 104. 
 
 in
 
 Ch. 23. WRONG s. 373 
 
 in ufe as formerly ; fince the more frequent extenfion of the 
 difcretionary powers of the court in granting a new trial, 
 which is now very commonly had for the mifdirection of the 
 judge at nijiprius. 
 
 THIS open examination of witnefles viva voce, in the pre- 
 fence of all mankind, is much more conducive to the clear- 
 ing up of truth d , than the private and fecret examination 
 taken down in writing before an officer, or his cleric, in the 
 ecclefiaftical courts, and all others that have borrowed their 
 practice from the civil law : where a witnefs may frequently 
 depofe that in private, which he will be afhamed to teflify in 
 a public and folemn tribunal. There an artful or carelefs 
 fcribe 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 1 judge, the jury, and the counfcl, 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- 
 
 O 
 
 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 refpect and awe with 
 which his prefence will naturally infpire the witnefs, he is 
 able by ufe and experience to keep the evidence Trcm wan- 
 dering from the point in iflue. In fhort by this method of 
 examination, and this only, the perfons who are to decide 
 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 mufl appear 
 alike; when their depofitions are reduced to writing, and 
 read to the judge, in the abfence of thofe who made them : 
 and yet as much may be frequently collected from the man- 
 ner in which the evidence is delivered, as from the matter of 
 
 d Kale's Hift. C. L, 254, 5, 6, 
 
 Z 3 fa
 
 374 PRIVATE BOOK III. 
 
 it. Thefe are a few of the advantages attending this, the 
 Englifti, way of giving teftimony, ore tenus. Which was 
 alfo indeed familiar among the antient Romans, as may be 
 collected from Quintilian e j who lays down very good in- 
 ftrudtions for examining and crofs-examining witnefies viva 
 voce. And this, or fomewhat like it, was continued as low 
 as the time of Hadrian f : but the civil law, as it is now mo- 
 delled, rejects all public examination of witnefles. 
 
 As to fuch evidence as the jury may have in their own con- 
 fciences, by their private knowlege of facts, it was an antient 
 dofrrine, 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 
 be produced on either fide, vet the jury might bring in a ver- 
 dict. For the oath of the jurors, to find according to their 
 evidence, was conftrued h to be, to do it according to the beft 
 of their own knowle^e. This feems to have arifen from the 
 
 CJ 
 
 antient practice in taking recognitions of aflife at the firft 
 introduction of that remedy ; the recognitors, when fworn, 
 being to retire immediately from the bar, and bring in their 
 verdict according to their own perfonal knowlege, without 
 hearing extrinfic evidence or receiving any direction from 
 the judge '. And the fame doctrine (when attaints came to 
 be extended to trials by jury, as well to recognitions of affife) 
 was alfo applied to the cafe of common jurors ; that they 
 might efcape the heavy penalties of the attaint ', in cafe they 
 could (hew by any additional proof, that their verdict 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 appear in 
 
 e Inflit. Or at. I, 5. c. 7. " quat interrogavtrai extempore -vcriJimUia 
 
 f See bis epiftle to Varuj, the legate " reffonderint." (Ff. za. 5. 3.) 
 
 or judge of Cilicia : " tu magh fcire 8 Yearbook, 14 Heu.VH. 29. Plowd, 
 
 " fotes, quanta fides fit babenda ttjlibus ; 12. Hob. 227. I Lev. 87. 
 
 ' qui, tt cujut dignitatls, et cujus aefli- h Vaugh. 14?, 149. 
 
 " Ktationis Jim ; et t q'M Jirnfliciter -viji ' Braft. /. 4. tr. 1, c,\fy . J. 
 
 " Jint dlcere ; utrum unum tundemque Flet. /. 4. C, 9. .2. 
 
 " m^di 'latuir. fertn c/*cm attulmnc, an ad ea 
 
 court.
 
 Ch. 23. WRONG 5. 375 
 
 court. But this doctrine was again gradually exploded, 
 when attaints began to be difufed, and new trials introduced 
 in their ftead. For it is quite incompatible with the grounds, 
 upon which fuch new trials are every day awarded, viz. that 
 the verdict was given without, or contrary to, evidence. And 
 therefore, together with new trials, the practice feems to 
 have been firft introduced k , which now univerfally obtains, 
 that if a juror knows any thing of the matter in iflue, 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 prefence of the parties, the counfel, and all 
 others, fums up the whole to the jury; omitting all fuper- 
 fluous circumftances, obferving wherein the main queftion 
 and principal iflue lies, ftating what evidence has been given 
 to fupport it, with fuch remarks as he thinks neceflary for 
 their direction, 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- 
 dict : 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 electors delay the election of 
 a king of the Romans for thirty days, they (hall be fed only 
 with bread and water, till the fame is accomplished. But if 
 our juries eat or drink at all, or have any eatables about 
 them, without confent of the court, and before verdict, it is 
 fineable; and if they do fo at his charge for whom they after- 
 wards find, it will fet afide the verdict. Alfo if they fpcak 
 with either of the parties or their agents, after they are gone 
 
 * Sty]. 233. i Sid. 133. ' ch. 2. 
 
 Z 4 from
 
 PRIVATE BOOK III. 
 
 from the bar ; or if they receive any frefh evidence in pri- 
 vate ; or if to prevent difputes they caft lots for whom they 
 fnall find; any of thefe circumftances will entirely vitiate 
 the verdict. And it has been held, that if the jurors do not 
 agree in their verdict before the judges are about to leave the 
 town, though they are not to be threatened or imprifoned m , 
 the judges are not bound to wait for them, but may carry 
 them round the circuit from town to town in a cart n . This 
 neceflity of a total unanimity feems to be peculiar to our own 
 conftitution ; or, at leaft, in the nembda or jury of the an- 
 tient Goths, there was required (even in criminal cafes) only 
 the confent of the major part ; and in ^afe of an equality, 
 the defendant was held to be acquitted p . 
 
 WHEN they are all unanimouflv agreed, the jury return 
 back to the bar j and, before they deliver their verdict, the 
 plaintiff is bound to appear in court, by himfelf, attorney, or 
 counfel, in order to anfwer the amercement to which by the 
 old lav/ he is liable, as has been formerly mentioned % in 
 cafe he fails in his fuit, as a punifliment for his falfe claim. 
 To be amerced, or a mercie, is to be at the king's mercy with 
 regard to the fine to be impofed ; in mifericordia domini regis 
 pro falfo clamore fuo. The amercement is difufed, but the 
 form ftill continues ; and if the plaintiff does not appear, no 
 verdict can be given, but the plaintiff is faid to be nanfuit, 
 nonfequitur clamor em fuum. 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 be voluntarily 
 jjUi-jfuited, or withdraw himfelf: whereupon the crier is or- 
 dered to call the plaintiff '; and if neither he, nor any body for 
 him, appears, he is nonfuited, the jurors are difcharged, the 
 action is at an end, and the defendant fliall recover his cofts. 
 The reafon of this practice is, that a nonfuit is more eligible 
 for the plaintiff, than a verdict againft him : for after a non- 
 fuit, which is only a default, he may commence the fame fuit 
 
 m Mirr. c. 4. . 24. 18, 10. 
 
 n L\i>. dfl'.fil. 40. //. 11. P Stiernh. /. i. c. 4. 
 
 See Ba:rington on the fiatutes, 17. q pag. 275. 
 
 again
 
 Ch. 23. WRONGS. 377 
 
 again for the fame caufe of action ; but after a verdict had, 
 and judgment confequent thereupon, he is for ever barred 
 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 verdict. 
 
 A VERDICT, vere diflum, is either privy, or public. A 
 privy verdict is when the judge hath left or adjourned the 
 court : and the jury, being agreed, in order to be delivered 
 from their confinement, obtain leave to give their verdict pri- 
 vily to the judge out of court r : which privy verdict is of no 
 force, unlefs afterwards affirmed by a public verdict given 
 openly in court; wherein the jury may, if they pleafe, vary 
 from their privy verdict. So that the privy verdict is indeed 
 a mere nullity ; and yet it is a dangerous practice, allowing 
 time for the parties to tamper with the jury, and therefore 
 very feldom indulged. But the only effectual and legal ver- 
 dict is the public verdict; in which they openly declare to 
 have found the iffue for the plaintiff, cr for the defendant; 
 and if for the plaintiff, they aflefs the damages alfo fuftained 
 by the plaintiff, in confequence of the injury upon which 
 the action is brought. 
 
 SOMETIMES, if there arifcs in the cafe any difficult mat- 
 ter of law, the jury for the fake of better information, and 
 to avoid the danger of having their verdict attainted, will find 
 a fpecinl verdict ; which is grounded on the ftatute Wellm. 2. 
 13 Edw. I. c. 30. . 2. And herein they ftate the naked 
 facts, as they find them to be proved, and pray the advice of 
 the court thereon; concluding conditionally, that if upon 
 the whole matter the court fhaU be of opinion that the plain- 
 tiff had caufe of action, 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 Weftminfter, from whence the iffue came to be tried. 
 
 r If the judge hath adjourned the court to his own lodgings, and there receives 
 the verdid, it is * public and not * privy verdift. 
 
 ANOTHER
 
 PRIVATE BOOK III. 
 
 ' ANOTHER method of finding a fpecies of fpecial verdi&, is 
 when the jury find a verdift generally for the plaintiff, but 
 fubjet neverthelefs to the opinion of the judge or the court 
 above, on z fpecial cafe ftated by the counfel on both fides with 
 regard to a matter of law : which has this advantage over a 
 fpecial verdict, that it is attended with much lefs expenfe, 
 and obtains a much fpeedier decifion ; the pojlea (of which in 
 the next chapter) being flayed in the hands of the officer of 
 nifi prills^ till the queftion is determined, and the verdict is 
 then entered for the plaintiff or defendant as the cafe may 
 happen. But, as nothing appears upon the record but the 
 general verdict, the parties are precluded hereby from the 
 benefit of a writ of error, if diffatisfied with the judgment of 
 the court or judge upon the point of law. Which makes it 
 a thing to be wifhed, that a method could be devifed of 
 either leflening the expenfe of fpecial verdicts, or elfe of en- 
 tering the cafe at length upon the pojiea. But in both thefe 
 inftances the jury may, if they think proper, take upon them- 
 felves to determine, at their own hazard, the complicated 
 queftion of fact and law ; and, without either fpecial verdift 
 or fpecial cafe, may find a verdicl: abfolutely either for the 
 plaintiff or defendant '. 
 
 WHEN the jury have delivered in their verdict, and it is re- 
 corded in court, they are then difcharged. And fo ends the 
 trial by jury : a trial, which befides the other vaft 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 commiflion out of chancery, or the civil 
 Jaw courts, for examining witneffes in one caufe will fre- 
 quently laft as long, and of courfe be full as expenfive, as the 
 trial of a hundred iffues at nifiprius : and yet the fat cannot 
 be determined by fuch commiflioners at all ; no not till the 
 depofitions are publifhed and read at the hearing of the caafe 
 in court. 
 
 Litt. . 386. 
 
 UPON
 
 Ch. 23; WRONGS. 379 
 
 UPON thefe accounts the trial by jury ever has been, and I 
 truft ever will be, looked upon as the glory of the Englifh 
 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 muft refer to the enfuing book of thcfe commentaries : 
 only obferving for the prefent, that it is the moft tranfcen- 
 dent privilege which any fubjecT: can enjoy, or wifh for, that 
 he cannot be affeted either in his property, his liberty, or 
 his perfon, but by the unanimous confent of twelve of his 
 neighbours and equals. A conftitution, that I may venture 
 to affirm has, under providence, fecured the juft liberties of 
 this nation for a long fucceffion of ages. And therefore a ce- 
 lebrated French writer 1 , who concludes, that becaufe Rome, 
 Sparta, and Carthage have loft their liberties, therefore thofe 
 of England in time muft nc-rifh, fhould have recollected that 
 Rome, Sparta, and Carthage, at the time when their liberties 
 were loft, were ftrangers to the trial by jury. 
 
 GREAT as this eulogium may feem, it is no more than 
 this admirable conftitution, when traced to it's principles, 
 will be found in fober reafon to deferve. The impartial ad- 
 miniftratlon of juftice, which fecures both our perfons and 
 our properties, is the great end of civil fociety. But if that 
 be entirely intrufted to the magiftracy, a felecl body of men, 
 and thofe generally felecled by the prince or fuch as enjoy 
 the higheft offices in the ftate, their decifions, in fpight 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 fhould 
 be always attentive to the interefts and good of the many. On 
 the other hand, if the power of judicature were placed at 
 random in the hands of the multitude, their decifions would 
 be wild and capricious, and a new rule of afiion would be 
 every day eftablimed in our , courts. It is wifely therefore 
 ordered, that the principles and axioms of law, which are 
 general propofitions, flowing from abftracled reafon, and not 
 
 t Montefq. Sp. L. xi. 6. 
 
 accom-*
 
 380 PRIVATE BOOK III. 
 
 accommodated to times or to men, fhould be depofited in the 
 breads of the judges, to be occafionally applied to fuch facts 
 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 fact pre-eftablifhed. But in fettling and 
 adjufting a queftion of fact, when intruded to any fmgle ma- 
 gidrate, partiality and injuftice have an ample field to range 
 in ; either by boldly afferting that to be proved which is not 
 fo, or more artfully by fupprefling fome circumftances, 
 ftretching and warping others, and diftinguifhing away the 
 remainder. Here therefore a competent number of fenfible 
 and upright jurymen, chofen by lot from among thofe of the 
 middle rank, will be found the beft inveftigators of truth, 
 and the fureft guardians of public juftice. For the moft pow- 
 erful individual in the date will be cautious of committing 
 any flagrant invafion of another's right, when he knows that 
 the fact of his oppreflion mud be examined and decided by 
 twelve indifferent men, not appointed till the hour of trial ; 
 and that, when once the fact is afcertained, the law muft of 
 courfe redrefs it. This therefore preferves in the hands of the 
 people that fhare, which they ought to have in the adminif- 
 tration of public juftice, and prevents the encroachments of 
 the more powerful and wealthy citizens. Every new tribu- 
 nal, erected for the decifion of facts, without the interven- 
 tion of a jury, (whether compofed of judices of the peace, 
 commiiiioners of the revenue, judges of a court of confcience, 
 or any other danding magidrates) is a dep towards cfta- 
 blifhing aridocracy, the mod oppreffive of abfolute govern- 
 ments. The feodal fydem, which, for the fake of military 
 fubordination, purfued an aridocratical plan in all it's ar- 
 rangements of property, had been intolerable in times of 
 peace, had it not been wifely counterpoifed by that privilege, 
 fo univerfally diffufed through every part of it, the trial by 
 the feodal peers. And in every country on the continent, as 
 the trial by the peers has been gradually difufed, fo the no- 
 bles have increafed in power, till the date has been tern to 
 pieces by rival factions, and oligarchy in effect has been eda- 
 blifhed, though under the fhadow of regal government ; un- 
 
 lefs
 
 Ch. 23. WRONG s. 381 
 
 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 jury, that bul- 
 wark of northern liberty, which continued in it's full vigour 
 fo lately as the middle of the laft century u , is now fallen 
 into difufe w : and that there, though the regal power is in no 
 country fo clofely limited, yet the liberties of the commons 
 are extinguifhed, and the government is degenerated into a 
 mere ariftocracy x . It is therefore upon the whole, a duty 
 which every man owes to his country, his friends, his pofte- 
 rity, and himfelf, to maintain to the utmoft of his power this 
 valuable conftitution in all it's rights; to reftore it to it's an- 
 tient dignity, if at all impaired by the different value of pro- 
 perty, or otherwife deviated from it's firft inftitution ; to 
 amend it, wherever it is defective; and, above all, to guard 
 with the moft jealous circumfpeclion againft the introduction 
 of new and arbitrary methods of trial, which, under a va- 
 riety of plaufible pretences, may in time imperceptibly un- 
 dermine this beft prefervative of Englifh liberty. 
 
 YET, after all, it muft be owned, that the beft and moft 
 effectual method to preferve and extend the trial by jury in 
 practice, would be by endeavouring to remove all the defects, 
 as well as to improve the advantages, incident to this mode 
 of inquiry. If juftice is not done to the entire fatisfaction 
 of the people, in this method of deciding facts, in fpite of 
 all encomiums and panegyrics on trials at the common law, 
 they will refort in fearch of that juftice to another tribunal ; 
 though more dilatory, though more expenfive, though more 
 arbitrary in it's frame and conftitution. If juftice is not 
 done to the crown by the verdict of a jury, the neceflities of 
 the public revenue will call for the erection of fummary tri- 
 bunals. The principal defects feem 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 
 
 z Whitclccke of parl. 427. x /,'</. 
 
 Mod. Un. Hift. xxxiii. 22. 
 
 going
 
 382 PRIVATE BOOK III. 
 
 going through the expenfe and circuity of a court of equity, 
 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- 
 fion, 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 feems the height of 
 judicial abfurdity, that in the fame caufe between the fame 
 parties, in the examination of the fame fails, a difcovery by 
 the oath of the parties fhould be permitted on one fide of 
 Weftminfter-hall, and denied on the other ; or that the judges 
 of one and the fame court fhould be bound by law to reject 
 fuch a fpecies of evidence, if attempted on a trial at bar ; 
 but, when fitting the next day as a court of equity, fhould be 
 obliged to hear fuch examination read, and to found their de- 
 crees upon it. In fhort, common reafon will tell us, that in 
 the fame country, governed by the fame laws, fuch a mode 
 of inquiry fhould be univerfally admitted, or elfe univerfally 
 rejected. 
 
 2. A SECOND defect is of a nature fomewhat fimilar to the 
 firft : the want of a compulfive power for the production of 
 books and papers belonging to the parties. In the hands of 
 third perfons they can generally be obtained by rule of court, 
 or by adding a claufe of requifition to the writ of fubpoena, 
 which is then called zfubpoena duces tecum. But, in mercan- 
 tile tranfa&ions efpecially, the fight of the party's own books 
 is frequently decifive; fuch, for inftance, as the daybook of 
 a trader, where the tranfa&ion muft be recently entered, as 
 really underftood at the time j 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 pre- 
 ceding article. 
 
 3. ANOTHER
 
 Ch. 23. WRONG s. 
 
 3. ANOTHER want is that of powers to examine witnefles 
 abroad, and to receive their depofitions in writing, where the 
 witnefles refide, and efpecially when the caufe of a&ion arifes 
 in a foreign country. To which may be added the power of 
 examining witnefles that are aged, or going abroad, upon in- 
 terrogatories de bene ejje ; to be read in evidence if the trial 
 fhould be deferred till after their death or departure, but 
 other wife to be totally fupprefled. Both thefe are now very 
 frequently effected by mutual confent, if the parties are open 
 and candid j and they may alfo be done indiredly at any 
 time, through the channel of a court of equity : but fuch a 
 practice has never yet been diredtly adopted v as the rule of a 
 court of law. Yet by ftatute 13 Geo. III. c. 63. where 
 the caufe of action arifes in India, and a fuit is brought 
 thereupon in any of the king's courts at Weftminfter, the 
 court is empowered to iflue a commiflion to examine witnefles 
 upon the fpot, and a mode is marked out for tranfmitting 
 the depofitions to England. 
 
 4. THE adminiftration of juftice fhould not only be chafte, 
 but (like Caefars wife) mould not even be fufpecled. A jury 
 coming from the neighbourhood is in fome refpecls a great 
 advantage ; but is often liable to ftrong objections: efpecially 
 in fmall jurifdidions, as in cities which are counties of them- 
 felves, and fuch where aflifes are but feldom holden j or 
 where the queftion in difpute has an extenfive local tendency; 
 where a cry has been raifed and the paflions of the multitude 
 been inflamed j or where one of the parties is popular, and 
 the other a ftranger or obnoxious. It is true that if a whole 
 county is interefted 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 ftricl: intereft fo minute as not to occafion any 
 bias, fo there may be the ftrongeft bias, where the whole 
 county cannot be faid to have any pecuniary intereft. In all 
 thefe cafes, to fummon a jury, labouring under local preju- 
 dices, is laying a fnare for their confciences : and, though 
 
 y Seepag. 75, * Stra, 177, 
 
 they
 
 384 PRIVATE BOOK III. 
 
 they fhould 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 tranfitory actions very often change 
 the venue, or county wherein the caufe is to be tried a : but 
 in local actions, though they fometimcs do it indirectly and 
 by mutual confent, yet to effect it directly and abfolutely, 
 the parties are driven to the delay and expenfe of a court of 
 equity ; where, upon making out a proper cafe, it is done 
 upon the ground of being neceflary to a fair, impartial, and 
 fatisfadtory trial b . 
 
 THE locality of trial required by the common law feems 
 a confequenceofthe antient locality of jurifdiction. All over 
 the world, actions 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 contract- 
 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 fummon 
 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 c ) the lord of the hundred 
 had a farther power, to convoke the inhabitants of different 
 vills to form a jury ; obferving probably always to intermix 
 among them aftated number of tenants of that manor wherein 
 the difpute arofe. When afterwards it came to the county 
 court, the great tribunal of Saxon juiiice, the fherift had 
 wider authority, and could impanel a jury from the men of 
 his county at large : but was obliged (as a mark of the origi- 
 nal locality of the caufe) to return a competent number of 
 hundredors ; omitting the inferior diftinction, if indeed it 
 ever exifted. And when at length, after the conqueft, the 
 king's jufticiars drew the cognizance of the caufe from the 
 
 a See pag. 294. between the duke of Deronfhire and the 
 
 b This, among a namter of other in- miners of the county of Derby, A. D. 
 
 ftances, was the cafe of the i/Tues di- 1761. 
 
 rented by the houfg of lords iu the cavfe < L-L. J Wt Ctnf, c, 32. Wilk. 203. 
 
 county
 
 Ch. 23. WRONG s; 385 
 
 county court, though they could have fummoned a jury from 
 any part of the kingdom, yet they chofc to take the caufe as 
 they found it, with all it's local appendages ; triable by a 
 ftated number of hundredors, mixed with other freeholders 
 of the county. The reftriHon as to hundredors hath gradu- 
 ally worn away, and at length entirely vanimed d ; that of 
 counties (till remains, for many beneficial purpofes : but, as 
 the king's courts have a jurifdiction 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 defects, that the juft pane- 
 gyric, which I have given on the trial by jury, might appear 
 to be the lefult of fober reflection, and not of enthufiafm or 
 prejudice. But fhould they, after all, continue unremedied 
 and unfupplied, ftill (with all it's imperfections) I truft that 
 this mode of decifion will be found the beft criterion, for in- 
 veftigating the truth of facts, that was ever eftablifhed in 
 any country. 
 
 * See pg. 360, 
 
 VOL. III. A a
 
 386 -PRIVATE BOOK IIL 
 
 CHAPTER THE TWENTY FOURTH. 
 
 F JUDGMENT, AND IT'S 
 INCIDENTS. 
 
 IN the prefenf chapter we are to confider the tranfa&ions 
 in a caufe, next immediately fubfequent to arguing th 
 demurrer, or trial of the iflue. 
 
 IF the iflue be an iffue of fa& ; and, upon trial by any of 
 the methods mentioned in the two preceding chapters, it be 
 found for either the plaintiff or defendant, or fpecially j of 
 if the plaintiff makes default, orisnonfuit; or whatever, in 
 fliort, is done fubfequent to the joining of iflue and awarding 
 the trial, it is entered on record, and is called zpoftea*. The 
 fubftance of which is, that pojha^ afterwards, the faid plain- 
 tiff and defendant appeared by their attornies at the place of 
 trial; and a jury, being fworn, found fuch averdift; or, 
 that the plaintiff after the jury fworn made default, and did 
 not profecute his fuit ; or, as the cafe may happen. This is- 
 added to the roll, which is now returned to the court from 
 which it was fent ; and the hiftory of the caufe, from. th<? 
 time it was carried out, is thus continued by the poftea. 
 
 NEXT follows, fixthly, the judgment of the court upon 
 what has previoufly paffed ; both the matter of law and mat- 
 ter of facl: being now fully weighed and adjufted, Judgment 
 
 a Append. N'rll. . 6, 
 
 may
 
 Ch. 24. WR d N c s. 387 
 
 may however for certain caufes beftt/ptrttba, or finally drrejledt 
 for it cannot be entered till the next term after trial had, and 
 that upon notice to the other party. So that if any defect o 
 juftice happened at the trial, by furprize^ inadvertence, of 
 mifconduct, the party may have relief in the court above, by 
 obtaining a new trial ; or if, notwithstanding the iffue o^ 
 fad!: be regularly decided, it appears that the complaint was 
 cither not actionable in itfelf, or not made with fufficient 
 precifion and accuracy, the party may fuperfede it ? by ar- 
 refting or flaying the judgment^ 
 
 I. CAUSES of fufpending the judgment by granting a nevi 
 trial) are at prefent wholly extrinfic, arifing from matter fo-* 
 reign to or dthors the record. Of this fort are want of notice 
 of trial ; or any flagrant mifbehaviour of the party prevailing 
 towards the jury, which may have influenced their verdict 5 
 or any grofs mifbehaviour of the jury among themfelves : 
 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 diflatisfied therewith b j 
 or if they have given exorbitant damages c ; or if the judge 
 himfelf has mif-directed the jury, fo that they found an un- 
 juftifiable verdict; for thefe, and other reafons of the like 
 kind, it is the practice of the court to award a new, or fe- 
 cond, trial. But if two juries agree in the fame or a fimilar 
 verdict, a third trial is (eldom awarded d : for the law will 
 not readily fuppofe, that the verdict of any one fubfequent 
 jury can countervail the oaths of the two preceding ones. 
 
 THE exertion of thefe fupsrintendent powers of the king's 
 courts, in fetting afide the verdict of a jury and granting a 
 new trial, on account of mifbehaviour in the jurors, is of a 
 date extremely antient. There are inftances, in the year 
 books of the reigns of Edward III % Henry I V f , and Henry 
 VII g , of judgments being ftayed (even after a trial at bar) and 
 
 b Law of mjiprius. 303, 4. f II Hen. IV. iS. Bro. Air. t, eit+ 
 
 c Comb. 357. S a 'ft- 75- 
 
 d 6 Mod. ai. Salk. 649. 5 14 Hen. VII. 1. Bro, Abr. t. vet" 
 
 ^ts t Edw t lU.^a t . ZrotAir.t.ver- dite.l^, 
 Jire. 17. 
 
 A a 2 ? new
 
 388 PRIVATE BOOK III. 
 
 new venire's awarded, becaufe the jury had eat and drank with- 
 out confent of the judge, and becaufe the plaintiffhad privately 
 given a paper to a juryman before he was fworn. And upon 
 thefe the chief juftice, Glynn, in 1655, grounded the firft 
 precedent that is reported in our books h for granting a new 
 trial upon account of excejjtve damages given by the jury : 
 apprehending with reafon, that notorious partiality in the 
 jurors was a principal fpecies of mifbehaviour. A few years 
 before, a practice 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 verdidT: had 
 pafled againft his opinion; though chief juftice Rolle (who 
 allowed of new trials in cafe of miibehaviour, furprize, or 
 fraud, or if the verdict was notorioufly contrary to evidence 11 ) 
 refufed to adopt that practice in the court of king's-bench. 
 And at that time it was clearly held for law ', that whatever 
 matter was of force to avoid a verdidr, ought to be returned 
 upon the po/iea^ and not merely furmifed to the court ; left 
 pofterity mould wonder why a new venire was awarded, with- 
 out any fufficient reafon appearing upon the record. But 
 tery early in the reign of Charles the fecond new trials were 
 granted upon affidavits ; and the former ftri&nefs of the 
 courts of law, in refpecl of new trials, having driven many 
 parties into courts of equity to be relieved from oppreffive 
 verdib, they are now more liberal in granting them : the 
 maxim at prefent adopted being this, that (in all cafes of 
 moment) where juftice is not done upon one trial, the injur- 
 ed party is entitled to another ". 
 
 FORMERLY the principal remedy, for reverfal of a verdict 
 unduly given, was by writ of attaint:, of which we mall 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 battel. Such a fandlion was probably thought 
 
 h Styl. 466. m I Sid. 235. 2 Lev. 140. 
 
 Ibid. 138. n 4 Burr. 395. 
 
 * I Sid. 235. Slyl.pratl. Reg. 310, Ipfircgali inftitutimitlegantcrhfirta. 
 
 311. edit. 1657. (Glanv. /. z. c. 19.) 
 
 I Crc.Eliz 616. Palm. 325. i Browri. 
 *7. ^ 
 
 neceflary,
 
 Ch. 24; WRONG s, 
 
 neceflary, 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 might give an erroneous verdict j and, if they did, 
 that it ought not finally to conclude the queftion in the firft 
 inftance : but the remedy, which they provided, (hews the 
 ignorance and ferocity of the times, and the fimplicity of the 
 points then ufually litigated in the courts of juftice. They 
 fuppofed that, the law being told to the jury by the judge, 
 the proof of fact muft be always fo clear, that, if they found 
 a wrong verdict, they muft be wilfully and corruptly per- 
 jured. Whereas a juror may find a juft verdicl: from un- 
 righteous motives, which can only be known to the great 
 fearcher of hearts : and he may, on the contrary, find a ver- 
 dict very manifeftly wrong, without any bad motive at all ; 
 from inexperience in bufmefs, incapacity, mifapprehenfion, 
 inattention to circumftances, and a thoufand other innocent 
 caufes. But fuch a remedy as this laid the injured party un- 
 der an infuperable hardftiip, by making a conviction of the 
 jurors for perjury the condition of his redrefs. 
 
 THE judges faw this ; and therefore very early, even upon 
 writs of affife, they devifed a great variety of diftinctions ; 
 by which an attaint might be avoided, and the verdict fet to 
 rights in a more temperate and difpaffionate method P. Thus 
 if exceflive damages were given, they were moderated by the 
 difcretion of the juftices <*. And, if either in that, or in any 
 other inftance, juftice was not completely done, through the 
 error of either the judge or the recognitors, it was remedied 
 by certificate ofajjlfe^ which was neither more nor lefs than a 
 fecond trial of the fame caufe by the fame jury r . And, in 
 mixed or perfonal actions, as trefpafs and the like, (wherein 
 no attaint originally lay) if the jury gave a wrong verdict, 
 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 j and, if that 
 
 P Brafton. /. 4. tr. 5. c. 4. r Ibid, tr, 5. c, 6. , z, F. N. B. 181. 
 
 H Ibid. tr. i, f. 19. . 8, a Inft, 415, 
 
 A a 3 could
 
 390 PRIVATE BOOK III. 
 
 could not be, they referred it to another examination s . 
 When afterwards attaints, by feveral ftatutes, were more 
 univerfally extended, the judges frequently, even for the mif- 
 behaviour of jurymen, inftead of profecuting the writ of at- 
 taint, awarded a fecond trial : and fubfequent refolutions, 
 for more than a century paft, have fo amplified the benefit of 
 this remedy, that the attaint is now as obfolete as the trial by 
 battel which it fucceeded : and we fhall probably fee the re- 
 vival of the one as foon as the revival of the other. And here 
 I cannot but again admire r the wifdom of fuffering time to 
 bring to perfection new remedies, more eafy and beneficial to 
 the fubjet ; which, by degrees, from the experience and 
 approbation of the people, fuperfede the neceflity or defire of 
 ufing or continuing the old. 
 
 I F every verdict was final in the firft inftance, it would 
 tend to deftroy this valuable method of trial, and would drive 
 away all caufes of confequence to be decided according to 
 the forms of the imperial law, upon depofitions in 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 iflfue ; where the fadts are complicated and 
 intricate, the evidence of great length and variety, and fome- 
 times contradicting each other ; and where the nature of the 
 difpute very frequenty 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 anfwered ; or may be puzzled by a legal 
 doubt, which a little recollection would have folved. In the 
 hurry of a trial the ableft judge may miftake the law, and mif- 
 direcl: the jury : he may not be able fo to ftate and range the 
 evidence as to lay it clearly before them, nor to take off the 
 artful impreffions which have been made on their minds by 
 learned and experienced advocates. The jury are to give their 
 
 s Si juraiores crrirverir.t, et jafiiciarii ir.ir.atlonem. Si aattem dijudicare tiefciant t 
 
 f-:c::t:d:im corum diRiim judicluta fronun- recurrendumerlt admajusjudicium, Braft 
 
 tis-j(r';nt,falfamfaciufitproKuntia!icnerxs /. 4. tr. 5. c. 4. . 2, 
 et ideo fcqul r.on deber.t ecrum diflum, Jed t See pag, z68, 
 
 jllud rmedaretcnentur jxrdiligentan exa- 
 
 opinion
 
 Ch. 24. .WRONGS. 391 
 
 opinion injlanter ; that is, before they feparate, eat, or drink. 
 And under thefe circumftances the moft intelligent and beft 
 intentioned men may bring in a verdict, which they them- 
 felves. upon cool deliberation would wifli to reverfe. 
 
 NEXT to doing right, the great object in the adminiftra- 
 tion of public juftice fhould be to give public fatisfaction. If 
 the verdict be liable to many objections and doubts in the 
 opinion of nis counfel, or even in the opinion of by-ftanders, 
 no party would go away fatisfied unlefs he had a profpect of 
 reviewing it. Such doubts would with him be decifive : he 
 would arraign the determination as manifeftly unjuft ; and 
 abhor a tribunal which he imagined had done him an injury 
 without a poffibility of redrefs. 
 
 GRANTING a new trial, under proper regulations, cures 
 all thefe inconveniences, and at the fame time preferves entire 
 and renders perfect that moft excellent method of decifion, 
 which is the glory of the Englifh 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 verdict on the one fide, 
 or the rule of court for awarding fuch iecond trial on the 
 other: and the fubfequent verdict, though contrary to the 
 firft, imports no tittle of blame upon the former jury; 
 who, had they poilefTed 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 matter of the fub- 
 ject; and nothing is now tried but the real merits of the cafe. 
 
 A SUFFICIENT ground muft however be laid before the 
 court, to fatisfy them that it is neceflary to juftice that the 
 caufe fhould be farther confidered. If the matter be fuch, 
 as did not or could not appear to the judge who prefided at 
 nijiprius^ it is difclofed to the court by affidavit : if it arifes 
 from what pa/Ted 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 j&des to impeach 
 
 A a 4 or
 
 392 PR i VAT E BOOK. III. 
 
 or eftablifli the verdict, and the court give their reafons at 
 large why a new examination ought or ought not to be al- 
 lowed. The true import of the evidence is duly weighed, 
 falfe colours are taken off, and all points of law which arofc 
 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 verdicSt. They muft be fatisfied, 
 that there arc ftrong probable grounds to fuppofe that the 
 merits have not been fairly and fully difcufled, and that the 
 dccifion is not agreeable to the juftice and truth of the cafe. 
 A new trial is not granted, where the value is too inconfi- 
 derable to merit a fecond examination. It is not granted upon 
 nice and formal objections, which do not go to the real me- 
 rits. It is not granted in cafes of ftrict right or fummum jus y 
 where the rigorous exaction 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 verdic"t, ought always very ftrongly 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 thofe defects 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- 
 tagonift ihall defire and mutually offer to comply with : fuch 
 as the difcovery of fome fadls upon oath ; the admiflion of 
 others, not intended to be litigated ; the production of deeds, 
 books, and papers ; the examination of witnefles, infirm or 
 going 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 
 muff be made within the firft four days of the next fucceeding 
 term, within which term it is ufually heard and decided. 
 And it is worthy obfervation, how infinitely fuperior to all 
 others the trial by jury approves itfelf, even in the very mode 
 of it's revifion. In every other country of Europe, and in 
 thofe of our own tribunals which cor.furm themielves to the 
 
 procefs
 
 Ch. 24. WRONGS. 393 
 
 procefs of the civil law, the parties are at liberty, whenever 
 they pleafe, to appeal from day to day and from court to 
 court upon queftions merely of fact ; which is a perpetual 
 fource of obftinate chicane, delay, and expenfive litigation u . 
 With us no new trial is allowed, unlefs there be a manifeft 
 miftake, and the fubject 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 the 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 practice, it is 
 becaufe long experience has fhewn, that a motion for a fe- 
 cond trial is the fhorteft, cheapeft, and moft effectual cure 
 for all imperfections in the verdict ; whether they arife from 
 the miftakes of the parties themfelves, of their counfel or at- 
 tornies, or even of the judge or jury. 
 
 2. ARRESTS of judgment arife from intrinfic caufes, ap- 
 pearing upon the face of the record. Of this kind are, firft, 
 where the declaration varies totally from the original writj as 
 where the writ is in debt or detinue, and the plaintiff declares 
 in an action on the cafe for an affumpfo : for, the original 
 writ out of chancery being the foundation and warrant of the 
 whole proceedings in the common pleas, if the declaration 
 does not purfue the nature of the writ, the court's authority 
 totally fails. Alfo, fecondly, where the verdict materially 
 differs from the pleadings and ifTue thereon ; as if, in an 
 action for words, it is laid in the declaration that the defend- 
 ant faid, " the plaintiff is a bankrupt ;" and the verdict finds 
 fpecially that he faid, " the plaintiff -wilt be a bankrupt." Or, 
 thirdly, if the cafe laid in the declaration is not fufficient in 
 point of law to found an action upon. And this is an inva- 
 
 n Not many years ago an appeal was admit,) was finally determined in April 
 
 brought to the houfe of lords from the 1749 : ^ e queftion being only on the 
 
 court of fefiion in Scotland, in a caufe property in an ox, adjudged to be of the 
 
 between Napier and Macfatlane. It value of three guineas. No pique or 
 
 was inftitutcd in March 1745; and, fpirit could have made fuch a caufe, in 
 
 (after many interlocutory orders and fen- the court of king's bench or common 
 
 tences below, appealed from and reheard pleas, have lafted a tenth of the time, or 
 
 as far as the courfe of proceedings would have coft a twentieth part of the expenfe,. 
 
 liable
 
 394 PRIVATE BOOK III." 
 
 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 fufficient 
 " to overturn the aition or plea." As if, on an adtion for 
 flander in calling the plaintiff a Jew, the defendant denies 
 the words, and iflue is joined thereon ; now, if a verdi<5t be 
 found for the plaintiff, that the words were actually fpoken, 
 whereby the fad is eftablifhed, ftill the defendant may move 
 in arreft of judgment, that to call a man a Jew is not adtion- 
 able : and, if the court be of that opinion, the judgment 
 fhall be arrefted, and never entered for the plaintiff. But the 
 rule will not hold e converfo^ " 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 impoflible to fupport the action or defence, this omiflion 
 fhall be aided by a verdidl. As if, in an action of trefpafs, the 
 declaration doth not allege that the trefpafs was committed 
 on any certain day w ; 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 coucbant on the land * ; though 
 either of thefe defeats might be good caufe to demur to the 
 declaration or plea, yet if the adverfe party omits to take ad- 
 Vantage of luch omiflion in due time, but takes iffue, and 
 has a verdict againft him, thefe exceptions cannot after ver- 
 dict be moved in arreft of judgment. For the verdict afcer- 
 tains thofe facts, which before from the inaccuracy of the 
 pleadings might be dubious ; fmce the law will not fuppofe, 
 that a jury under the infpetion 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 than 
 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 verdidt ; and not fuffered, 
 in the laft ftage of a caufe, to unravel the whole proceedings. 
 
 * Carth. 389. jr i Mod. 292. 
 
 x Cro. Jac. 44f 
 
 But
 
 Ch. 24. WRONG s; 
 
 But if the thing omitted be eflential to the aHon or de- 
 fence, as if the plaintiff does not merely ftate his title in a 
 defective manner, but fets forth a title that is totally defective 
 in itfelf z , or if to an a&ion of debt the defendant pleads not 
 guilty inftead of nil debet % thefe cannot be cured by a verdicT: 
 for the plaintiff in the firft cafe, or for the defendant in the 
 fecond. 
 
 IF, by the mifcondudl: or inadvertence of the pleaders, the 
 iflue be joined on a fa<5t totally immaterial, or inefficient to 
 determine the right, fo that the court upon the finding can- 
 not know for whom judgment ought to be given ; as if, on an 
 action on the cafe in affumpfit againft an executor, he pleads 
 that he himfelf (inftead of the teftator) made no fuch pro- 
 mife b : or if, in an action of debt on bond conditioned to pay 
 money on or before a certain day, the defendant pleads pay- 
 ment on the day c (which iflue, if found for the plaintiff, would 
 be inconclufive, as the money might have been paid before] in 
 thefe cafes the court will after verdict reward a repleader ^ quod 
 partes replacitent : unlefs it appears from the whole record 
 that nothing material can poilibly be pleaded in any fhape 
 whatfoever, and then a repleader would be fruitlefs d . 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, &c 9 wherein there appears to have been 
 the firft defet, or deviation from the regular courfe e . 
 
 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.- Judgments are the fen- 
 tence of the law, pronounced by the court upon the matter 
 contained in the record ; and are of four forts. Firft, where 
 the facts are 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 fails 
 difputed ; as in cafe of judgment on a verdift: thirdly, where 
 
 z Salk. 365. c Stra. 994. 
 
 a Cro. Eliz. 778. i 4 Burr. 301, 302. 
 
 J z Ventr, 196, Raym, 458, Salk, 579, 
 
 both
 
 PRIVATE BOOK III. 
 
 both the far. and the law arifmg thereon are admitted by the 
 defendant : which is the cafe of judgments by confejjlon or 
 default : or, laftly, where the plaintiff is convinced that either 
 fat, or law, or both, are inefficient to fupport his adion, 
 and therefore abandons or withdraws his profecution ; which 
 is the cafe in judgments upon a nonfult 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 law. It is the conclufion 
 that naturally and regularly follows from the premifes of law 
 and fa&, which ftand thus : againft him, who hath rode 
 over my corn, I may recover damages by law j but A hath 
 rode over my corn ; therefore I mall recover damages againft 
 A. If the major proportion be denied, this is a demurrer in 
 law : if the minor, it is then an iflue of fadt : but if both 
 be confefled (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 mort, is the remedy prefcribed 
 by law for the redrefs of injuries ; and the fuit or ation 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 ftile of the judgment is, not that it is 
 decreed or refolved by the court, for then the judgment 
 might appear to be their own ; but, " it is confidered," con- 
 ftderatum eft per curlam, that the plaintiff do recover his da- 
 mages, his debt, his pofieffion, and the like : which implies 
 that the judgment is none of their own j but the adl: of law, 
 pronounced and declared by the court, after due deliberation 
 and inquiry. 
 
 ALL thefe fpecies of judgments are either Interlocutory or 
 final. Interlocutory judgments are fuch as are given in the 
 middle of a caufe, upon fome plea, proceeding, or default, 
 which is only intermediate, and does not finally determine or 
 complete the fuit. Of this nature are all judgments for the 
 plaintiff upon pleas in abatement of the fuit or a&ion : i n 
 
 which
 
 Ch. 24. WRONGS. 397 
 
 which it is confiderecl by the court, that the defendant do 
 anfwer over, refpsndeat oufter ; that is, put in a mor.e fub- 
 ftantial pica f . It is eafy to obferve, that the judgment here 
 given is not final, but merely interlocutory ; for there are 
 afterwards farther proceedings to be had, when ths defend- 
 ant hath put in a better anfwer. 
 
 BUT the interlocutory judgments, moft ufually fpoken of, 
 are thofe incomplete judgments, whereby the right of the 
 plaintiff is indeed eftablifhed, but the quantum of damage* 
 fuftained by him is not afcertained : which is a matter that 
 cannot be done without the intervention of a jury. As by 
 the old Gothic conftitution the caufe was not completely fi- 
 nifhed, till the nembda or jurors were called in u ad executto- 
 " nem decretorum j udicii^ ad aeftimatiwem pretii^ damni, hicri^ 
 " &c g ." This can only happen where the plaintiff recovers; 
 for, when judgment is given for the defendant, it is always 
 complete as well as final. And this happens, in the firft 
 place, where the defendant fufFcrs judgment to go againft 
 him by default, or nihil dic'it ; as if he puts in no plea at all 
 to the plaintiff's declaration : by confe.ffion or cognovit aftio- 
 new, where he acknowleges the plaintiff's demand to be juft : 
 or by non futn infermatus^ when the defendant's attorney de- 
 clares he has no inftrudtions to fay any thing in anfwer to the 
 plaintiff, or in defence of his client ; which is a fpecies of 
 judgment by default. If thefe, or any of them, happen in 
 actions where the fpecific thing fued for is recovered, as in 
 actions of debt for a fum certain, the judgment is abfolutely 
 complete. And therefore it is very ufual, in order to ftrength- 
 en a creditor's fecurity, for the debtor to execute a warrant 
 of attorney to fome nominee of the creditor, empowering him 
 to confefs a judgment by either of the ways juft now men- 
 tioned (by nibil dicit, cognovit afiionem y or non fum informatui) 
 in an action of debt to be brought by the creditor againft the 
 debtor for the fpecific fum due: which judgment, when con- 
 feffed, is abfolutely complete and binding j provided the 
 fame (as is alfo required in all other judgments) be regularly 
 tdocquettedy that is, abftra&ed and entered in a book, accord- 
 
 t -z Sauad. 30. E Stierntiook, dt jure Gstb. /. I, f, 4.
 
 398 PRIVATE BOOK III* 
 
 ing to the directions of ftatute 4 & 5 W. & M. c. 20. But, 
 where damages are to be recovered, a jury muft be called in 
 to alfefs them j 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 becaufe the court 
 " know not what damages the faid plaintiff hath luftained, 
 *' therefore the fheriff is commanded, that by the oaths of 
 " twelve honeft and lawful men he inquire into the faid da- 
 " mages, and return fuch inquifition into court." This pro- 
 cefs is called a writ of inquiry : in the execution of which the 
 fheriff fits as judge, and tries by a jury, fubject to nearly the 
 fame law and conditions as the trial by jury at ni/jprius t what 
 damages the plaintiff hath really fuftained ; and when their 
 verdict is given, which muft zfkfsfome damages, the fheriff 
 returns the inquifition, which is entered upon the roll in 
 manner of a ftftea ; and thereupon it is confidered, that the 
 plaintiff do recover the exact fum of the damages fo affeffed. 
 In like manner, when a demurrer is determined for the 
 plaintiff upon an action wherein damages are recovered, the 
 judgment is alfo incomplete, without the aid of a writ of 
 inquiry. 
 
 FINAL judgments are fuch as at once put an end to the 
 action, 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 juftice in not immediately obeying the king's writ 
 by rendering the plaintiff his due h ; or to be taken up, capiatur, 
 to pay a fine to the king, in cafe of any forcible injury 1 . 
 Though now by ftatute 5 & 6 W. & M. c. 12. no writ of 
 tapias fhall iffue for this fine, but the plaintiff fhall pay 6* Sd 9 
 and be allowed it againft the defendant among his other cofts* 
 And therefore in judgments in the court of common pleas 
 they enter that the fine is remitted, and in the court of king'a 
 bench they now take no notice of any fine or capias at all k 
 
 i> 5 Rep. 40. * Sulk. 54. Carth, 390. 
 
 1 Append. K. U. $, 4. 
 
 B*t
 
 Ch. 24. WRONGS. 
 
 But if judgment be for the defendant, then it is confidered, 
 that the plaintiff and his pledges of profecuting be (nomi- 
 nally) amerced for his falfe fuit, and that the defendant 
 may go without a day, eat fine die, that is, without any farther 
 continuance or adjournment; the king's writ, commanding 
 his attendance, being now fully fatisfied, and his innocence 
 publicly cleared. '. 
 
 THUS much for judgments ; to which tofts are a necefiary 
 Appendage j it being now as well the maxim of ours as of the 
 civil law, that " viElus viftori in expert/is condemnandus Jl m " 
 Though the common law did not profefledJy allow any, thq 
 amercement of the vanquished party being his only punifli- 
 ment. The firft ftatute which gave cofts, ea nomine^ to the 
 demandant in a real a&ion was the ftatute of Gloucefter, 
 6 Edw, I. c. i. as did the ftatute of Marl bridge 52 Hen. III. 
 c. 6. to the defendant in one particular cafe, relative to ward- 
 fhip in chivalry : though in reality cofts were always confi- 
 dered and included in the quantum of damages, in fuch actions 
 where damages are given 5 and, even now, cofts for the 
 plaintiff are always entered on the roll as increafe of damages^ 
 by the court n . But, becaufe thofe damages were frequently 
 jnadequate to the plaintiff's expenfes, the ftatute of Gloucefter 
 orders cofts to be alfo added ; and farther directs, that the 
 fame rule fhall hold place in all cafes where the party is to re-- 
 cover damages. And therefore in fuch actions where no da- 
 mages were then recoverable (as in quare impedit, in which da- 
 mages were not given till the ftatute of Weftm. 2. 13 Edw. I.) 
 no cofts are now allowed ; unlefs they have been exprefsly 
 given by fome fubfequent ftatute. The ftatute 3 Hen. VII. 
 c.io. was the firft which allowed any cofts on a writ of error* 
 But no cofts were allowed the defendant in any fhape, till the 
 flatutes 23 Hen. VIII. c. 15. 4 Jac. I. c. 3. 8 & 9 W. III. 
 c. n. and 4 & 5 Ann. c. 16. which very equitably gave the 
 defendant, if he prevailed, the fame cofts as the plaintiff 
 Would have had, in cafe he had recovered. Thefe cofts on 
 both fides are taxed and moderated by the prothonotary, or 
 other proper officer of the court. 
 
 I Append. N. III. . 6. " Append. N. II. . 4. 
 
 Cod. 3, I. 13. 10 Rep. . THE
 
 4 PRIVATE BOOK III. 
 
 THE king (and any perfon fuing to his ufe p ) fhall 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 fubject, fo it is beneath his dignity 
 to receive them. And it feems reafonable to fuppofe, that 
 the queen-confort participates of the fame privilege ; for, 
 in actions brought by her, (he was not at the common law 
 obliged to find pledges of profecution, nor could be amerced 
 in cafe there was judgment againft her 1. In two other cafes 
 an exemption alfo lies from paying cofts. Executors and ad- 
 miniftrators, when fuing in the right of the deceafed, fhall pay 
 none r : for the ftatute 23 Hen. VIII. c. 15. doth not give 
 cofts to defendants, unlefs where the adion fuppofeth the 
 contract to be made with, or the wrong to be done to, the 
 plaintiff himfelf. And paupers, that is fuch as will fwear 
 themfelves not worth five pounds, are, by ftatute u Hen. 
 
 VII. c. 12. to have original writs andfubpoenas gratis, and 
 counfel and attorney affigned them without fee ; and are ex- 
 cufed from paying cofts, when plaintiffs, by the ftatute 23 Hen. 
 
 VIII. c. 15. but fhall fuffer other punifhment at the discretion 
 of the judges. And it was formerly ufual to give fetch pau- 
 pers, if nonfuited, their election either to be whipped or pay 
 the cofts s : though that practice is now difufed '. It feems 
 however agreed, that a pauper may recover cofts, though 
 he pays none ; for the counfel and clerks are bound to give 
 their labour to him, bat not to his antagonifts u . To prevent 
 alfo trifling and malicious actions, for words, for affault and 
 battery, and for trefpafs, it is enafted by ftatutes 43 Eliz. 
 c. 6. 21 Jac. I. c. 16. and 22 & 23 Car. II. c. 9. . 136. 
 that, where the jury who try any of thefe actions fhall give 
 lefs damages than 40*. the plaintiff fhall 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 actual battery (and not an aflault only) was 
 proved, or that in trefpafs the freehold or title of the land 
 came chiefly in queftion. Alfo by ftatute 4 & 5 W. & M. 
 
 P Stat. 24 Hen. VIII. c. 8. s t Sid. 261. 7 Mod. 114. 
 
 q F. N. B. 101. Co. Litt. 133. Salk. 506. 
 
 i Cro. Jac. 229. i Vent. 92. u I Equ. Caf. abr. 125. 
 
 c. 23.
 
 Ch. 24.; WRONGS; 401 
 
 c. 23. and 8 & 9 W. III. c. u. if the trefpafs were com- 
 mitted in hunting or fporting by an inferior tradefman, or if 
 it appear to be wilfully and malicioufly committed, the 
 plaintiff ftiall have full cofts % though his damages'as aflefled 
 by the jury amount to lefs than 40 s. 
 
 AFTER judgment is entered, execution will immediately fol- 
 low, unlefs the party condemned thinks himfelf unjuftly ag- 
 grieved by any of thefe proceedings ; and then he has his re- 
 medy tore verfe them by feveral writs in the nature of appeals* 
 which we fhali confider in the fucceeding chapter. 
 
 *T Seepag. 214, 215. 
 
 VOL. III. B b
 
 P R I V A T E BOOK Ilf. 
 
 CHAPTER THE TWENTY FIFTH. 
 OF PROCEEDINGS, IN THE 
 
 NATURE OF APPEALS. 
 
 PROCEEDINGS, in the nature of appeals from the 
 proceedings of the king's courts of law, are of various 
 kinds ; according to the fubjeft matter in which they are 
 concerned. They are principally three. 
 
 I. A WRIT of attaint : which lieth to inquire whether a 
 jury of twelve men gave.a falfe verdict: a ; that fo the judg- 
 ment following thereupon may be reverfed : and this muft 
 be brought in the life-time of him for whom the verdict was 
 given, and of two at leaft of the jurors who gave it. This 
 lay, at the common law, only upon writs of ajjlfe ; and 
 fcems 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 vaft power then repofed 
 in the recognitors of afHfe, of finding a verdict according to 
 their own perfonal knowlege, without the examination of 
 witnefies. And even here it extended no farther than to fuch 
 initances, where the ifl'ue was joined upon the very point of 
 aflife (the heirfhip, difleifin, &c>) and not on any collateral 
 matter ; as villenage, baftardy, or any other difputed fact. 
 In thefe cafes the ajfife was faid to be turned into an inqucft or 
 jury, (aj/ifa vertitur In juratam] or that the aflife Should be 
 taken in modumjuratae et non in modum ajjifae ; that is, that 
 the iflue fhould be tried by a common jury or inqueft, and 
 not by recognitors of aflife b : and then I apprehend that no 
 attaint lay againft the inqueft or jury that determined fuch 
 collateral iflue c . Neither do I find any mention made by 
 our antient writers, of fuch a procefs obtaining after the trial 
 by inqueft or jury, in the old Norman or feodal actions pro- 
 
 a Finch. L. 484. Flet. /. 5. c, 22. . 8. Co. Entr. 61. 
 
 *> Braft. /. 4. tr. i. c. 34. .2, 3, b. Booth. 213. 
 4,^-. 3. c. i-j.tr. 5. c. 4. . j, z. c Brad, 4. i. 34. ^. Flet. ibid. 
 
 fccuted
 
 .Ch. 25. WRONG s." 403 
 
 fecuted by writ of entry. Nor indeed did any attaint lie in 
 trefpafs, debt^ or other adion perfonal, by the old common 
 law : becaufe thofe were always determined by common in- 
 quefts or juries' 1 . At length the ftatute of Weftm. I. 
 3 Edw. I. c. 38. allowed an attaint to be fued upon inquefts, 
 as well as aj/ifes, which were taken upon any plea of land or 
 of freehold. But this was at the king's difcretion, and is fo 
 underftood by the author of Fleta e , a writer cotemporary 
 with the ftatute : though fir Edward Coke f feems to hold 
 
 * 3> 
 
 a different opinion. Other fubfqquent ftatutes s introduced 
 the fame remedy in all pleas of trefpafs, and the ftatute 
 34 Edw. III. c. 7. extended it to all pleas whatfoever, per- 
 ional as well as real ; except only the writ of right, in fuch 
 cafes where the mife or iffue is joined on the mere right, and 
 not on any collateral queftion. For, though the attaint feems 
 to have been generally allowed in the reign of Henry the fe- 
 cond h , at the firft introdution of the grand aflife, (which at 
 that time might confift of only twelve recognitors) yet fubfe- 
 quent authorities have holden, that no attaint lies on a falfe 
 verdict given upon the mere right, either at common law or 
 by ftatute ; becaufe that is determined by the grand affife, 
 appealed to by the party himfelf, and now confifting of 
 fixteen jurors '. 
 
 THE jury who are to try this falfe verdict, muft be twenty- 
 four, and are called the grand jury ; for the law wills not 
 that the oath of one jury of twelve men fhould be attainted or 
 fet afide by an equal number, nor by lefs indeed than double 
 the former k . 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 verdict is now trying, and the 
 queftion is whether or no they did right upon the evidence 
 that appeared to them, the law adjudged it the higheft abfur- 
 .dity to produce any fubfequent proof upon fuch trial, and to 
 
 Yearb. 28 Edw. III. 15. 17 J/. h See pag. 389. 
 pi. 15. Flet. 5. 22. 16. i Braft. 290. Flet. 5. 22.7. Britt. 
 
 e /. 5. c. 22. . 8 & 16. 243. b. 12 Hen. VI. 6. Bro. dl>r, t, 
 
 f 2 Infr. 130. 237. atteint. 42, 1 Roll. Abr, 280. 
 
 g Stat. i Edw. III. ft. r. c. 6. 5 k Brafton. /. 4. if, 5. . 4. . i. 
 
 Edw. III. c. 7.' 28 Edw, III. c. 8. Flet. /. 5. t, az, .7. 
 
 B b 2 condemn
 
 404 PRIVATE BOOK III. 
 
 condemn the prior jurifdiction for not believing evidence 
 which they never knew. But thofe againft whom it is brought 
 arc allowed, in affirmance of the firft verdict, to produce 
 new matter ] : becaufe the petit jury may have formed their 
 verdict upon evidence of their own knowlege, which never 
 appeared in court; and becaufe very terrible was the judg- 
 ment which the common law inflicted upon them, if the 
 grand jury found their verdict a falfe one. The judgment 
 was, I . That they fhould lofe their llberam legem^ and be- 
 come for ever infamous. 2. That they mould forfeit all their 
 goods and chattels. 3. That their lands and tenements 
 mould be feifed into the king's hands. 4. That their wives 
 and children mould be thrown out of doors. 5. That their 
 hbufes mould be rafed and thrown down, 6. That their 
 trees mould be rooted up. 7. That their meadows mould be 
 ploughed. 8. That their bodies mould be caft into gaol. 
 9. That the party mould be reftored to all that he loft by 
 reafon of the unjuft verdict. But as the feverity of this 
 punifhrnent had it's ufual effect, in preventing the law from 
 being executed, therefore by the ftatute n Hen. VII. c. 24. 
 revived by 23 Hen. VIII. c. 3. and made perpetual by 13 
 Eliz. c. 25. it is allowed to be brought after the death of the 
 party, and a more moderate punifhrnent was inflicted upon 
 attainted jurors; viz. perpetual infamy, and, ifthecaufeof 
 action were above 40 /. value, a forfeiture of 20 /. apiece by 
 the iurors ; or, if under 40 /, then 5 /. apiece ; to be divided 
 between the king and the party injured. So that a man may 
 now bring an attaint either upon the ftatute or at common 
 law, at his election m ; and in both of them may reverfe the 
 former judgment. But the practice of fetting afide verdicts 
 upon motion, and granting new trials, has fo fuperfeded the 
 wfe of both forts of attaints, that I have hardly obferved any 
 inftance of an attaint in our books, later than the fixteenth 
 century n . By the old Gothic conftitution indeed, no certi- 
 ficate of a judge was allowed, in matters of evidence, to 
 Countervail the oath of the jury : but their verdict, however 
 e/roneous, was abfolutely final and conclufive. " Tejlesfunt 
 
 1 Finch, L. 4.86. do. Eliz. 309. Cro.Jac. 90. 
 
 w 1 Iiift. 164, 
 
 " &
 
 Ch. 25. WRONGS. 405 
 
 *' de judice et de acJis (jus ; judex vero de ip/is vicijjim tejlar'i 
 " non potejl) vere an falfo jurent : qualicunque enim eorum offer- 
 " tioni Jlandum eft et judicandum" Yet they had a proceed- 
 ing, from whence our attaint may be derived. If, upon a 
 lawful trial before a fuperior tribunal, they were found to have 
 given a falfe verdict, they were fined, and rendered infamous 
 for the future. " Si tamen evidenti argumento falfum jurajje 
 " convincantur (id quod fuperius judicium cognofcere debet) mu/c- 
 " tantur in bonis, de caetero perjuri et inteftabiles ." 
 
 II. AN audita querela is where a defendant, againft whom 
 judgment is recovered, and who is therefore in danger of 
 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 j or if the defendant hath paid the debt to the plain- 
 tiff, without entering fatisfation on the record. In th.de 
 and the like cafes, wherein the defendant hath good matter 
 to plead, but hath had no opportunity of pleading it, (either 
 at the beginning of the fuit, or puts darrein continuance, which, 
 as was (hewn in a former chapter P, muft always be before 
 judgment) an audita querela lies, in the nature of a bill in 
 equity, to be relieved againft the oppreflion of the plaintiff. 
 It is a writ directed to the court, ftating that the complaint 
 of the defendant hath been heard, audita querela defendentis^ 
 and then fetting out the matter of the complaint, it at length 
 enjoins the court to call the parties before them, and s having 
 heard their allegations and proofs, to caufe juftice to be done; 
 between them''. It alfo lies for bail, when judgment is ob- 
 tained againft them by fcire facias to anfwer the debt of their 
 principal, and it happens afterwards that the original judg- 
 ment againft their principal is reverfed : for here the bail, 
 after judgment had againft them, have no opportunity to plead 
 this fpecial matter, and therefore they (hall have redrefs by 
 audita querela* ; which is a writ of a moft remedial nature, 
 and feems to have been invented, left in any cafe there fhould 
 be an oppreffive defect of juftice, where a party has a good 
 
 Stiernhook de jure Gelb, /, I, ^,4. fl Finch. L. 488. F. N. B. 102. 
 
 p ee pag. 310, r i Roll, Abr, 308, 
 
 B b 3
 
 406 PRIVATE BOOK III. 
 
 defence, but by the ordinary forms of law had no opportu- 
 nity to make it. But the indulgence now fhewn by the courts 
 in granting a fummary relief upon motion, in cafes of fuch 
 evident oppreflion 8 , has almoft rendered ufelefs the writ of 
 audita querela, and driven it quite out of practice. 
 
 III. BUT, thirdly, the principal method of redrefs for 
 erroneous judgments in the king's courts of record, is by 
 writ of error to fome fuperior court, of appeal. 
 
 A WRIT of error' lies for fome fuppofed miftake in the 
 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 law arifmg upon the 
 face of the proceedings ; fo that no evidence is required 
 to fubftantiate or fupport it : and there is no method of re- 
 verfing an error in the determination of fafts^ but by an 
 attaint, or a new trial, to correct the miftakes of the former 
 verdict,, 
 
 FORMERLY the fuitors were much perplexed by writs of 
 error brought upon very flight and trivial grounds, as mif- 
 fpellings and other miftakes of the clerks, all which might 
 be amended at the common law, while all the proceedings 
 were in paper w j for they were then confidered as only \nferij 
 and therefore fubject to the control of the courts. But, when 
 once the record was made up, it was formerly held, that by 
 the common law no amendment could be permitted, unlefs 
 within the very term in which the judicial act fo recorded was 
 done : for during the term the record is in the breaft of the 
 court ; but afterwards it admitted of no alteration x . But now 
 the courts are become more liberal ; and, where juftice re- 
 quires it, will allow of amendments at any time while the 
 fuit is depending, notwithftanding the record be made up, and 
 the term be paft. For they at prefent confider the proceed- 
 ings as inykn, till judgment is given ; and therefore that, 
 till then, they have power to permit amendments by the corn- 
 
 s Lord Raym. 4^0. w 4 Burr. 1099. 
 
 t Append. N. III. . 6. x Co. Lift. 260.- 
 
 Finch . L. 484. 
 
 man
 
 Ch. 25. WRONGS. 407 
 
 mon law : but when judgment is once given and enrolled, 
 no amendment is permitted in any fubfequent term y . Mif- 
 takes are alfo effe&ually helped by the itatutes of amendment 
 andjeofazls: fo called, becaufe when a pleader perceives any 
 flip in the form of his proceedings, and acknowleges fuch 
 error (jeofaile) he is at liberty by thofe ftatutes to amend it ; 
 which amendment is feldom a&ually made, but the benefit 
 of the ats is attained by the court's overlooking the excep- 
 tion 2 . Thefe ftatutes are many in number, and the provifions 
 in them too minute to be here taken notice of, otherwife than 
 by referring to the ftatutes themfelves a ; by which all trifling 
 exceptions are fo thoroughly guarded againft, that writs of 
 error cannot now be maintained, but for fome material mif- 
 take affigned. 
 
 THIS is at prefent the general doctrine of amendments ; 
 and it's rife and hiftory are fomewhat curious. In the early 
 ages of our jurifprudence, when all pleadings were ore tenus 9 
 if a flip was perceived and objected to by the oppofite party 
 or the court, the pleader inftantly acknowleged his error and 
 rectified 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 ftatuteof Wales, made at Rothelan, 12 Edw. I. the 
 pleadings are directed to be carried on in that principality, 
 ''fine calumpnia verb or urn, non objervata ilia dura confuetudine^ 
 " qui cadit a fyllaba cadit a tota caufa." The judgments were 
 entered up immediately by the clerks and officers of the court ; 
 and, if any mif-entry was made, it was rectified by the 
 minutes of the remembrance of the court itfelf. 
 
 WHEN the treatife by Britton was publifhed, in the name 
 and by authority of the king, (probably about the 13 Edw. I. 
 becaufe the laft ftatutes therein referred to are thofe of Win- 
 chefter and Weftminfter the fecond) a check feems intended 
 
 y Stat. 1 1 Hen. TV. 0,3. 0.14. 21 Jac.I. c. 13. 16 & 17 Car. II. 
 
 z Stra. ion. c. 8. (ftiled in i Ventr. loo. an omni- 
 
 a Stat. 14. Edw. III. c. 6. q Ken.V. potent att) 4 & 5 Ann. c. 16. 9 Ann. 
 
 c,4. 4'Hen.VI. c. 3. 8 Hen.VI, c, 12. c. 20, 5Ge_>. I. 0.13. 
 
 &J5, 31 Hen. VIII. c.jo. iSEliz. 
 
 B b 4 to
 
 4S PRIVATE BOOK III. 
 
 to be given to the unwarrantable pra&ices of fome judges, 
 who had made falfe entries on the rolls to cover their own 
 misbehaviour, and had taken upon them by amendments and 
 rafures to falfify their own records. The king therefore de- 
 clares 11 that " although we have granted to o-_ juftices to 
 " make record of pleas pleaded before them, yo. we will not 
 " that their own record mall be a warranty for their own 
 " wrong, nor that they may rafe their rolls, nor amend them, 
 " nor record them, contrary to their original enrollment." 
 The whole of which, taken together, amounts to this, that 
 a record furreptitioufly or erronenufly made up, to ftifle or 
 pervert the truth, mould not be a fan&ion 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 kir<; Edward, on his return from 
 his French dominions' in t'-c fevcnteenth year of his reign, 
 after upwards of three year;, abfence, found it neceflary (or 
 convenient) to profecute his judges for their corruption and 
 other mal-pra&ices, the perverfion of judgments c by erafing 
 and altering records was one of the caufes afligned for the 
 heavy punimments inflicted upon almoft all the king's jufti- 
 ces, even the moft able and upright d . The feverity of which 
 
 1> Brit. fr&n. 2, 3. aga'mft fir Ralph Hsngham (a very 
 
 c Judicta pervert trunt, tt In ali'is tr- learned judge, to whom we are obliged 
 
 rmierunt. (Matth. Weft. A. D. 1289.) for two excellent rreatifes of practice) 
 
 d Among the other judges, fir Ralph was only, according to a tradition that 
 
 Hengham chief juftke of the king's was current in Richard the third's time, 
 
 bench is faid to have been fined 7000 (Yearbook. M. 2. Rle. III. 10.) his al- 
 
 inarks, fir Adam Stratton chief baron tering out of mere compaffion a fine, 
 
 rf the exchequer 34000 marks, and which was fet upon a very poor man, 
 
 Thomas Wayland thief juftice of the from 1 3*. 4< to 61. 8( for which he 
 
 commou pleas to have been attainted of was fined Soo marks ; a more probable 
 
 felony, and to have abjured the realm, fum than 7000. It is true, the book 
 
 with a forfeitme of all his eftares j the calls the judge fo punilhed Ingbair. and 
 
 whole amount of the forfeitures being net Hengbsm : but I find no judge of the 
 
 upwards of loooco marks, or 70000 name of /rgtaw in Dugdale's SmVt ; and 
 
 pounds. (3 Prj-n. Rec. 401, 402.) An fir Edward Coke (4 Inft. 255.) and fir 
 
 incredible fum in thofe days, before pa- Matthew Hale ( i P. C. 646.) underftand 
 
 per credit was in ufe, and when the an- it to have been the chief juftice. And 
 
 Dual falary of a chief juftice was only certaiuly his offence (whatever it was) 
 
 fcxty marks. (Clauf. 6 Edv>. I. m. 6. was nothing very atrocious or difgrace- 
 
 Pugd. (brtu, jtr t z6,) Tk charge ful: for though removed from the kingV
 
 Ch. 25. WRONGS. 409 
 
 proceedings feems fo to have alarmed the fucceeding judges r 
 that, through a fear of being faid to da wrong, they hefitated 
 at doing that which was right. As it was fo hazardous to 
 alter a record, even from compaflionate motives, (as hap- 
 pened in Hengham's cafe, which in ftriclnefs was certainly 
 indefenfible) they refolved no: to touch a record any more ; 
 but held that even palpable errors, when enrolled 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 e : but, inftead of 
 amending the clerk's erroneous record, they made a fecond 
 enrollment of what the juftice had declared ore tenus ; and 
 left it to be fettled by pofterity in which of the two rolls that 
 abfolute verity refides, which every record is faid to import 
 in itfelf f . And, in the reign of Richard the fecond, there 
 are inftances g of their refufing to amend the moft palpable 
 errors and mif-entries, unlefs by the authority of parliament. 
 
 To this real*fullennefs, but affected timidity, of the judges 
 fuch a narrownefs of thinking was added, that every flip 
 (even of a fyllable or a letter h ) was now held to be fatal to 
 the pleader, and overturned his client's caufe i . If they durft 
 
 bench at this time (together with the with this fine of chief juftice Henghain 
 
 reft of the nidges) we find him about a clock boufe was built at Weftminfter, 
 
 eleven years afrer.vards one of the iuftices and i'urnif'.ed with a ckck, to be heard 
 
 in eyre for the general perambulation of into V/eft : Drifter -hall. Upon which, 
 
 the forefts ; (Rot. perambul. forefl. in ftory I fmul only remark, that the firft. 
 
 turri Lend. 29 Edw. I. m. 8.) and the introduction cf docks was not till an 
 
 next year made chief juftice of the com- hundred years afterwards, abcut the end 
 
 man pleas, (Pat. z^Ee'tv. /. m. 7. of the fourteenth century. (Encyclopedic. 
 
 Dui>d. cbrn. J'er. 32.^ in which office tit.-torloge. 6 Rym. Foe_d. 590.) 
 he continued till his death in 2 Edw. II. c I Hal P. C. 647. 
 
 (Clauf. i Edw. II. m. 19. Pat. zEdiu. f i Leon. 183. Co. Ljtt. 117. See - 
 
 II. p. I. m. 9. Dugd. 34. Selden. pref. pag. 331. 
 toHengham.) There is an appendix to i Hal. P. C. 648, 
 
 this tradition, remembered by juftice h Stat. 14 Ed-.v. III. c. 6. 
 Southcote in th reign of queen Eliza. i In thofe days it was flriclly tiw, 
 
 beth j ( 3 left, 72. 4 Inft. 255. ) th.at wb.at Ruggle (in his igr.t-emm) has hn- 
 
 fnoroufly
 
 PRIVATE BOOK III. 
 
 not, or would not, fet right mere formal miftakes at any 
 time upon equitable terms and conditions, they at leaft 
 fhould have held, that trifling objections were at all times 
 inadmiffible ; 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 
 made no miftake. And, if it was feared that an amendment 
 after trial might fubject the jury to an attaint, how eafy was 
 it to make waiving the attaint the condition of allowing the 
 amendment ! And yet thefe were among the abfurd reafcns 
 alleged for never fufTering amendments at all k ! 
 
 THE precedents then fet were afterwards moft fcrupuloufly 
 followed 1 , to the great obftru&ion of juftice, and ruin of 
 the fuitors; who have formerly fuffered as much by thefe 
 obftinate fcruples and literal ftri&nefs of the courts, as they 
 could have done even by their iniquity. After verdicts and 
 judgments upon the merits, they were frequently reverfed for 
 jfiips of the pen or mif-fpellings : and juftice 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 thefe opprobrious niceties : and 
 it's endeavours have been of late fo well feconded by judges 
 of a more liberal caft, that this unfeemly degree of ftridnefs 
 is almoft entirely eradicated j and will probably in a few years 
 be no more remembered, than the learning of eflbins and de- 
 faults, or the counterpleas of voucher, are at prefent. But, 
 to return to our writs of error. 
 
 IF a writ of error be brought after verdifl, he that brings 
 the writ, or that is plaintiff in error, muft in moft cafes find 
 fubftantial pledges of profecution, or bail m : to prevent de- 
 
 moroufly applied to more modern plead- ' 8 Rep. 156, &c. 
 ings ; " in noflra kge unum comma ivsr- m Stat. 3 Jac. I. c. 8. 13 Car. II. 
 
 " tit totum fladtum." c. al 16 & 17 Car. II. c. 8. 
 k Styl. 107.
 
 Ch. 25. WRONGS. 411 
 
 lays by frivolous pretences to appeal ; and for fecuring pay- 
 ment of cofts and damages, which are now payable by the 
 vanquimed party in all, except a few particular, inftances, 
 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, 
 pleas P. Alfo from the king's bench in Ireland to the king's 
 bench in England. It likewife may be brought from the 
 common pleas at Weftminfter to the king's bench ; and then 
 from the king's bench the caufe is removeable 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 : and from thence 
 it lies to the houfe of peers. From proceedings in the king's 
 bench, in debt, detinue, covenant, account, cafe, ejectment, 
 or trefpafs, originally begun therein by bill (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 ^ : but 
 where the proceedings in the king's bench do not firft com- 
 mence therein by bill, but by original writ fued out of chan- 
 cery r , this takes the cafe out of the general rule laid down 
 by the ftatute s ; fo that the writ of error then lies, without 
 any intermediate ftage of appeal, directly to the houfe of 
 lords, the dernier rcfort for the ultimate decifion of every 
 civil action. Each court of appeal, in their refpective frages, 
 may, upon hearing the matter of law in which the error is 
 affigned, reverfe or affirm the judgment of the inferior courts ; 
 but none of them are final, fave only the houfe of peers, to 
 whofe judicial decifions all other tribunals muft therefore 
 fubmit and conform thsir own. And thus much for reverfal 
 or affirmance of judgments by writs in the nature of appeals. 
 
 " 3 Hen. VII. c. 10. 13 Car. II. q Stat. 27 Eliz. c. 8. 
 
 c.i.. 8 & 9 W. III. c. ij. 4 & 5 .Ann. ' See page 42. 
 
 c. 16. s i Roll. Rep. 264. i Sid. 4.14.. 
 
 See chap. 4. I Saund. 346. Carth. 180. Comb. 295. 
 
 P Finch. L. 480. Dyer. 250.
 
 412 PRIVATE BOOK lit. 
 
 CHAPTER THE TWENTY SIXTH. 
 OF EXECUTION. 
 
 IF the regular judgment of the court, after the decifion 
 of the fuit, be not fufpended, fuperfeded, or reverfed, 
 by one or other of the methods mentioned in the two pre- 
 ceding chapters, the next and laft ftep is the execution of that 
 judgment; or, putting the fentence of the law in force^ 
 This is performed in different manners, according to the na- 
 ture of the action upon which it is founded, and of the judg- 
 ment which is had or recovered. 
 
 IF the plaintiff recovers in an action real or mixed, where- 
 in the feifm or poffeflion of land is awarded to him, the writ 
 of execution (hall be an habere facias feifmam, or writ of 
 fcifin, of a freehold ; or an habere facias pojjejjionem^ or writ 
 of poffeflion % of a chattel intereft b . Thefe are writs direct- 
 ed to the fheriff of the county, commanding him to give ac- 
 tual poffeflion to the plaintiff of the land fo recovered : in the 
 execution of which the (heriff may take with him the poffe 
 fomitatuS) or power of the county ; and may juftify breaking 
 open doors, if the poffeffion 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 quare impedit, or aJSfe of 
 
 Append. N. II. , 4. * Finch, L, 470,
 
 Ch. 26. WRONG s> 
 
 the execution is by a writ de clerico admittendo j directed, not 
 to the fheriff, but to the bifhop or archbifbop, and requiring 
 him to admit and inftitute the clerk of Che plaintiff. 
 
 IN other actions, where the judgment is that fomething in 
 fpecial be done or rendered by the defendant, then, in order 
 to compel him fo to do, and to fee the judgment executed, a 
 fpecial writ of execution iffues to the {heriff according to the 
 nature of the cafe. As upon an affife of quod permittat profter- 
 nere for a nufance, where one part of the judgment is quod 
 amoveatur, a writ goes to the fheriff to abate it at the charge 
 of the party, which likewife UTues even in cafe of an indict- 
 ment c . Upon a replevin the writ of execution is the writ de 
 retorno habendo*; and, if the diltrefs be eloigned, the defend- 
 ant fhall have a capias in withernam** but, on the plaintiff's 
 tendering the damages and fubmitting to a fine, the procefs 
 in witbernam fhall be flayed f . In detinue, after judgment, 
 the plaintiff fhall have a dijlringas^ to compel the defendant 
 to deliver the goods, by repeated diftreffes of his chattels * ; 
 or elfe zfeire facias againft any third perfon in whofe hands 
 they may happen to be, to fhew caufe why they fhould not 
 be delivered : and, if the defendant ftill continues obftinate, 
 then (if the judgment hath been by default or on demurrer) 
 the fherifF fhall fummon an inqueft to afcertain the value of 
 the goods, and the plaintiff's damages j which (being either 
 fo affeffed, or by the verdi6t in cafe of an iffue h ) fhall be le- 
 vied on the perfon or goods of the defendant. So that, after 
 all, in replevin and detinue, (the only actions for recovering 
 the fpecific poffeflion of perfonal chattels) if the wrongdoer be 
 very perverfe, he cannot be compelled to a reflitution of the 
 identical thing taken or detained ; but he ftill has his eledion, 
 to deliver the goods, or their value' : an imperfection in the. 
 law, that refults from the nature of perfonal property, which 
 is eafily concealed or conveyed out of the reach of juftice, 
 and not always amefnable to the magiftrate. 
 
 <= Comb. 10. 8 i Roll. Abr. 737. Raft. Entr. 
 
 * See pag. 150. Z15- 
 
 * See pag. 148. *> Bro. Abr. f. Damages. 29. 
 f 2 Leon. 174. * Keilw. 64. 
 
 EXECU-
 
 4U PRIVATE BOOK III. 
 
 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 pojjeffion of his lands j 
 or againft all three, his body, lands, and goods. 
 
 I. THE firft of thefe fpecies of execution, is by writ of 
 capias ad fatisfaciendum J ; which diftinguifh.es it from the 
 former caftas, ad refpondendum t which lies to compel an 
 appearance at the beginning of a fuit. And, properly fpeak- 
 ing, this cannot be fued out againft any but fuch as were li- 
 able to be taken upon the former capias k . The intent of it 
 is, to imprifon the body of the debtor till fatisfaction be made 
 for the debt, cofts, and damages : it therefore doth not lie 
 againft any privileged perfons, peers or members of parlia- 
 ment, nor againft executors or adminiftrators, nor againft 
 fuch other perfons as could not be originally held to bail. 
 And fir Edward Coke alfo gives us a fingular inftance ', 
 where a defendant in 14 Edw. III. was difcharged from a ca- 
 pias becaufe he was of fo advanced an age, quod poenam im- 
 prifona?nenti Jubire non poteft. If an action be brought againft, 
 an hufband and wife for the debt of the wife, when fole, 
 and the plaintiff recovers judgment, the capias {hall iflue to 
 take both the hu{band and wife in execution m : but, if the 
 action was originally brought againft herfelf, when fole, and 
 pending the fuit fhe marries, the capias fhall be awarded 
 againft her only, and not againft her hufband ". Yet, if 
 judgment be recovered againft an hufband and wife for the 
 contract, nay even for the perfonal mifbehaviour , of the 
 wife during her coverture, the capias fhall iflue againft the 
 hufband only : which is one of the many great privileges 
 of Englifh wives. 
 
 j Append. N. III. . 7. Moor. 704. 
 
 k 3 Re^. iz. n Cro. Jac. 323. 
 
 I j Inft. 289. Cro, Car. 513. 
 
 THE
 
 Ch. 26. WRONGS. 
 
 THE writ of capias ad fatlsfaciendum is an execution of the 
 higheft nature, inafmuch as it deprives a man of his liberty, 
 till he makes the fatisfaction awarded ; and therefore, when 
 a man is once taken in execution upon this writ, no other 
 procefs can be fued out againft his lands or goods. Only, by 
 ftatute 21 Jac. I. c. 24. if the defendant dies, while charged 
 in execution upon this writ, the plaintiffmay, after his death, 
 fue out new execution againft his lands, goods, or chattels. 
 The writ is directed to the ftieriff, commanding him to take 
 the body of the defendant and have him at Weftminfter, on 
 a day therein named, to make the plaintiff fatisfa&ion for 
 his demand. And, if he does not then make fatisfaclion, he 
 muft remain in cuftody till he does. This writ maybe 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 artta etfaha cujlodia: and, if he be after- 
 wards feen at large, it is an efcape ; and the plaintiff may 
 have an adtion thereupon againft the fhejiff for his whole 
 debt. For though, upon arrefts and what is called mefne 
 procefs, being fuch as intervenes between the commence- 
 ment and end of a fuit P, the fheriff, till the ftatute 8 & 9 W. 
 III. c. 27. might have indulged the defendant as he pleafed, 
 fo as he produced him in court to anfwer the plaintiff at the 
 return of the writ : yet, upon a taking in execution, he could 
 never give any indulgence ; for, in that cafe, confinement 
 is the whole of the debtor's punifhment, and of the fatisfac- 
 tion made to the creditor. Efcapes are either voluntary, or 
 negligent. Voluntary are fuch as are by the exprefs confent 
 of the keeper, after which he never can retake his prifoner 
 again % (though the plaintiff may retake him at any time r ) 
 but the (heriff muft anfwer for the debt. Negligent efcapes 
 are where the prifoner efcapes without his keeper's knowlege 
 or confent - 3 and then upon frefh purfuit the defendant may 
 
 P See pag. 179. r tat. 8. & 9 W. III. C. 27. 
 
 9 3 Rep, 52, j Sid. 330, 
 
 be
 
 PRIVATE BOOK IIT; 
 
 be retaken, and the fherifffhall be excufed, if he has him 
 again before any a&ion brought againft himfelf for the ef- 
 cape s . A refcue of a prifoner in execution^ either going to 
 gaol or in gaol, or a breach of prifon, will not excufe the 
 fheriff from being guilty of and anfwering for the efcape j for 
 he ought to have fufficient force to keep him, feeing he may 
 command the power of the county l . But by ftatute 32 Geo. 
 II. c. 28. if a defendant, charged in execution for any debt 
 lefs than ioo/, will furrender all his effe&s to his creditors, 
 (except his apparel, bedding, and tools of his trade, not 
 amounting in the whole to the value of io/.) and will make 
 oath of his punctual compliance with the ftatute, the prifoner 
 may be difcharged, unlefs the creditor infifts on detaining 
 him ; in which cafe he (hall allow him 2s. ^d. per week, 
 to be paid on the firft day of every week, and on failure of 
 regular payment the prifoner {hall be difcharged. Yet the 
 creditor may at any future time have execution againft the 
 lands and goods of the defendant, though never more againft 
 his perfon. And, on the other hand, the creditors may, as 
 in cafe of bankruptcy, compel (under pain of tranfportation 
 for feven years) fuch debtor charged in execution for any 
 debt under ioo7, to make a difcovery and furrender of all 
 his effedts for their benefit; whereupon he is alfo entitled to 
 the like difcharge of his perfon. 
 
 IF a capias adfatisfaciendum is fued out, and a none/I inven- 
 tuf is returned thereon, the plaintiff may fue out a procefs 
 agairift the bail, if any were given : who, we may remember, 
 ftipulated in this triple alternative ; that the defendant 
 ftould, if condemned in the fuit, fatisfy the plaintiff his 
 debt and cofts ; or, that he fhould furrender himfelf a 
 prifoner ; or, that they would pay it for him : as there- 
 fore the two former branches of the alternative are neither of 
 them complied with, the latter muft immediately take place u . 
 In order to which a writ of fe ire facias may be fued out 
 againft the bail, commanding them to (hew caufe why the 
 plaintiff fhould not have execution againft them for hit 
 
 F. N. B. 130. Lutw. 12691273. 
 
 * Cro.Jic. 410. 
 
 debt
 
 Ch. 26, WRONG s. 417 
 
 debt and damages : and on fuch writ, if they mew no fuffi- 
 tient caufe, or the defendant does not furrender himfelf on 
 the day of the return, or of mewing caufe (for afterwards is 
 not fufficient) the plaintiff may have judgment againft the 
 bail, and take out a writ of capias adfatisfaciendum t or other 
 procefs of execution againft them. 
 
 2. THE next fpecies of execution is againft the floods and 
 chattels of the defendant ; and is called a writ of 'fieri facias* ', 
 from the words in it where the fheriff is commanded, quod t 
 fieri facial dc bonis, that he caufe to be made of the goods and 
 chatiels of the defendant the fum or debt recovered. This 
 lies as well againft privileged perfons, peers, C5V, as other 
 common perfons ; and againft executors or adminiftrators 
 with regard to the goods of the deceafed. The Iheriff may 
 not break open any outer doors *, to execute either this, or 
 the former, writ : but muft enter peaceably ; and may then 
 break open any inner door, belonging to the defendant, in 
 order to take the goods y . And he may fell the goods and 
 chattels (even an eftate for years, which is a chattel real z ) 
 of the defendant, till he has railed enough to fatisfy the judg- 
 ment and cofts : firft paying the landlord of the premifes, 
 upon which the goods are found, the arrears of rent then 
 due, not exceeding one year's rent in the whole a . If part 
 only of the debt be levied on a. fieri facias, the plaintiff may 
 have a capias ad fatisfaciendutn for the reiidue b . 
 
 3. A THIRD fpecies of execution is by writ of kvarifa-- 
 dai ; which affedls a man's goods and the profits of his lands, 
 by commanding the fheriff to levy the plaintiff's debt on the 
 lands and goods of the defendant ; whereby the flieriff may 
 feife all his goods, and receive the rents and profits of his 
 lands, till fatisfa&ion be made to the plaintiff . Little ufe 
 
 w Appen-l. N. III. . 7. a Stat. 8 Ann. c. 14. 
 
 x 5 Rep. 9-4. b I Roll. Abr 504. Cro. Eiiz, 344. 
 
 X Palm. 54. c Finch. L. 471. 
 
 z 8 Rep. 171. 
 
 VOL. III. C c is
 
 41 S PRIVATE BOOK III. 
 
 is now made of this writ ; the remedy by elegit, which takes 
 pofFeffion of the lands themfelves, being much more effectual. 
 But of this fpecies is a writ of execution proper only to ec- 
 clefiaftics ; whidh is given when the fheriff, upon a common 
 writ of execution fuad, returns that the defendant is a bene- 
 ficed clerk, not having any lay fee. In this cafe a writ goes 
 to the bifhop of the dioccfe, in the nature of a levari or fieri 
 facias d , to levy the debt and damage de bonis ecclefiafliclsj 
 which are not to be touched by lay hands : and thereupon 
 the bifhop fends out a fequeftration of the profits of the clerk's 
 benefice, directed to the churchwardens, to collect the fame 
 and pay them to the plaintiff, till the full fum be raifed e . 
 
 4. THE fourth fpecies of execution is by the writ of ele- 
 jrlt\ which is a judicial writ given by the ftatute Weftm. 2- 
 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 
 fatisfadtion of goods, chattels, and the prefent profits of 
 lands, by the two laft mentioned writs rffori facias, or le- 
 vari facias; but not the pofleflion 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, when 
 the reftricHon of alienation began to wear away, the con- 
 fequence ftill continued ; and no creditor could take the 
 pofTellion of lands, but only levy the growing profits : fo 
 that, if the defendant aliened his lands, the plaintiff was 
 oufted of his remedy. The ftatute therefore granted this 
 writ, (called an elegit, becaufe it is in the choice or election 
 of the plaintiff whether he will fue out this writ or one of 
 the former) by which the defendant's goods and chattels are 
 not fold, but only appraifedj and all of them (except oxen 
 and beafts of the plough) are delivered to the plaintiff, at fuch 
 reafonable appraifement and price, in part of fatisfaction of 
 his debt. If the goods are not fufficient, then the moiety or 
 
 * Regijlr. or;g. 300. judic. Z2. 2 Inft. 4. e a Burn. eccl. law. 329. 
 i N 
 
 one
 
 Ch. 26. WRONGS. 419 
 
 one half of his freehold lands, which he had at the time 
 of the judgment given f , whether held in his own name, 
 or by any other in truft for him g , are alfo to be delivered to " 
 the plaintiff; to hold, till out of the rents and profits thereof 
 the debt be levied, or till the defendant's intereir. 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 commen- 
 taries h . We there obferved that till this ftatute, by the an- 
 tient common law, lands were not liable to be charged with, 
 or feifed for, debts ; becaufe by this means the connection 
 between lord and tenant might be deftroyed, fraudulent alie- 
 nations might be made, and the fervices be transferred to be 
 performed by a ftranger; provided the tenant incurred a large 
 debt, fufficient to cover the land. And therefore, even by 
 this ftatute, only one half was, and now is, fubjel to exe- 
 cution ; that out of the remainder fufficient might be left for 
 the lord to diftrein upon for his fervices. And, upon the 
 fame feodal principle, copyhold lands are at this day not lia- 
 ble to be taken in execution upon a judgment '. But, in 
 cafe of a debt to the king, it appears by magna carta, c. 8. 
 that it was allowed by the common law for him to take pof- 
 feffion of the lands till the debt was paid. For he, being the 
 grand fnperior and ultimate proprietor of all landed eflates, 
 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 fervices, when the oufter of the vafal proceeded from 
 his own command, This execution, or feifing of lands by 
 flfgit, is of fo high a nature, that after it the body of the 
 defendant cannot be taken : but if execution can only be had 
 of the goods, becaufe there are no lands, and fuch goods are 
 not fufficient 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 effect than a fieri facias}. So that body and good3 
 may be taken in execution, or land and goods j but not body 
 
 f 2 Inft. 395. i i Roll. Abr. 888. 
 
 ? Stat. 29. Car. II. c, 3. j Hob. 58. 
 
 t Book II. ch. ]<p. 
 
 C c 2
 
 42O PR i v A T E BOOK III. 
 
 and land too, upon any judgment between fubjet and fubjeft 
 in the courfe of the common law. But 
 
 5. UPON fome profecutions given by ftatute; as in the 
 cafe of recognizances or debts acknowleged on ftatutes mer- 
 chant, or ftatutes ftaple ; (purfuant to the ftatutes 13 Edw. I. 
 de mercatoribuS) and 27 Edw. III. c. 9.) upon forfeiture of 
 thefe, the body, lands, and goods, may all be taken at once 
 in execution, to compel the payment of the debt. The pro- 
 cefs hereon is ufually called an extent or extendi facias^ be- 
 eaufe the fheriff is to caufe the lands, 6V. 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 k . And by ftatute 33 Hen. VIII. c. 39. all 
 obligations made to the king fhall 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 l . And his debt fhall, in fuing 
 out execution, be preferred to that of every other creditor, 
 who hath not obtained judgment before the king commenced 
 his fuit m . The king's judgment alfo affects all lands, which 
 the king's debtor hath at or after the time of contracting his 
 debt, or which any of his officers mentioned in the ftatute 
 13 E'iz. c. 4. hath at or after the time of his entering on the 
 office : fo that, if fuch officer of the crown alienes for a valua- 
 ble confederation, 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 contrac-ted by the vendor many years 
 after the alienation ". Whereas judgments between fubject 
 and fubjecl related, even at common law, no farther back 
 than the firft day of the term in which they were recovered, 
 in refpect of the lands of the debtor ; 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. II. c. 3. 
 the judgment fhall not bind the land in the hands of a bonp 
 
 k F. N. B. 131, Stat. 33 Hen. VIII. e. 29. 
 
 3 Rep. 12. 10 Rep. 55, 56.
 
 Ch. 26. WRONG s. 421 
 
 jide purchafor, but only from the time of actually figning the 
 fame; nor the goods in the hands of a ftranger, or a pur- 
 chafor % but only from the aclual delivery of the writ to 
 the fheriff. 
 
 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, fatisfa&ion ought to be entered on the record, that 
 the defendant may not be liable to be hereafter harrafled a fe- 
 cond time on the fame account. But all thefe writs of exe- 
 cution muft be fued out within a year and a day after the 
 judgment is entered ; otherwife the court concludes prima 
 facie that the judgment is fatisfied and extinct : yet however 
 it will grant a writ of fare facias in purfuance of fratute 
 Weftm. 2. 13 Edw. I. c. 45. for the defendant to (hew caufe 
 why the judgment mould not be revived, and execution had 
 againft him ; to which the defendant may plead fuch matter 
 as he has to allege, in order to fhew why procefs of execution 
 fhould 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 p . 
 
 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 re fpeclive 
 officers. In the courfe therefore of the prefent volume we 
 have, firft, feen and confidered the nature of remedies, by 
 the mere act 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 action in courts : and therein have contem- 
 plated, firft, the nature and fpecies of courts, inftituted for 
 the redrefs of injuries in general ; and then have (hewn in 
 what particular courts application muft be made for the re- 
 drefs of particular injuries, or the doctrine of jurisdictions and 
 
 Skin. 257. P Co. Litt. zgo. 
 
 C c 3 <#gtuzance.
 
 422 PRIVATE ~ BOOK lit. 
 
 cognizance. We afterwards proceeded to confider the na- 
 ture and diftribution of wrongs and injuries affecting every 
 fpecies of perfonal and real righ'ts, with the refpective reme- 
 dies by fuit, which the law of the land has afforded for every 
 poffible injury. And, laftly, we have deduced and pointed 
 out the method and progrefs of obtaining fuch remedies in 
 the courts of juftice : proceeding from the firft general com- 
 plaint or original writ j through all the ftages of procefs, to 
 compel the defendant's appearance ; and of pleading, or for- 
 mal allegation on the one fide, and excufe or denial on the 
 other ; with the examination of the validity of fuch complaint 
 or excufe, upon deinurrer ; or the truth of the facts alleged 
 and denied, upon ijjiie joined, and it's feveral trials ; to the 
 judgment or fentence of the law, with refpect to the nature and 
 amount of the redrefs to be fpecifically given : till, after con- 
 fidering the fufpenfion of that judgment by writs in the nature 
 of appeals^ we arrived at it's final execution ; which puts the 
 party in fpecific pofTeflion of his right by the intervention of 
 minifterial officers, or elfe gives him ah ample fatisfaction, 
 cither by equivalent damages, or by the confinement of his 
 body, who is guilty of the injury complained of. 
 
 THIS care and circumfpection in the law, in providing 
 that no man's right fhall be affected by any legal proceeding 
 without giving him previous notice, and yet that the debtor 
 fhall not by receiving fuch notice take occafion to efcape from 
 juftice ; in requiring that every complaint be accurately and 
 precifely afcertained in writing, and be as pointedly and ex- 
 actly anfwered ; in clearly ftating the queftion either of law 
 or of fail; in deliberately refolving the former after full ar- 
 gumentative difcuflion, and indifputably fixing the latter by 
 a diligent and impartial trial ; in correcting fuch errors as 
 may have arifen in either of thofe modes of decifion, from 
 accident, miitake, or furprize ; and in finally enforcing the 
 judgment, when nothing can be alleged to impeach it; this 
 anxiety to maintain and reftore to every individual the enjoy- 
 ment of his civil rights, without intrenching upon thofe of 
 any other individual in the nation, this parental folicitude 
 
 which
 
 Ch. 26. WRONGS. 423 
 
 which pervades our whole legal conftitution, is the genuine 
 offspring of that fpirit of equal liberty which is the fmgular 
 felicity of Englifhmen. At the fame time it muft be owned 
 to have given an handle, in fome degree, to thofe complaints, 
 of delay in the practice 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 knowlege, a few unworthy profeffors : who ftudy 
 the fcience of chicane and fophiftry rather than of truth and 
 juftice j and who, to gratify the fpleen, the diftionefty, and 
 wilfulnefs of their clients, may endeavour to fcreen the 
 guilty, by an unwarrantable ufe of thofe means which were 
 intended to protect the innocent. But the frequent difap- 
 pointments and the conftant difcountenance, that they meet 
 with in the courts of juftice, have confined thefe men (to the 
 honour of this age be it fpoken) both in number and reputa- 
 tion to indeed a very defpicable compafs. 
 
 YET fome delays there certainly are, and muft unavoida- 
 bly be, in the conduit of a fuit, however defirous the parties 
 and their agents may be to come to a fpeedy determination. 
 Thefe arife from the fame original caufes 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 defart, we may then 
 enjoy the fame difpatch of caufe^ that is fo highly extolled in 
 fome foreign countries. But common fenfe and a little ex- 
 perience will convince us, that more time and circumfpecti- 
 on 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 Montef- 
 quieu r , where little regard is fhewn to the lives or fortunes 
 of the fubjecl:, all caufes are quickly decided : the bafha, -on 
 a fummary hearing, orders which party he pleafes to be baf- 
 tinadoed, and then fends them about their bufmefs. But in 
 
 9 See pag. 527. r Sp. L. b 6. ch. Zt 
 
 C c 4 free
 
 4*4 PRIVATE BOOK III. 
 
 free dates the trouble, expenfe, and delays of judicial pro- 
 ceedings are the price that every fubje& 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 fubje6r,. 
 
 FROM thefe principles it might reafonably follow, that the 
 Englifh courts fhould be more fubjecl: 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 fhare 
 of the burthen. For the courfe of the civil law, to which 
 moft other nations conform their practice, is much more te- 
 dious than ours ; for proof of which I need only appeal to 
 the fuitors of thofe courts in England, where the practice of 
 the Roman law is allowed in it's full extent. And particu- 
 larly inP'rance, not only our Fortefcue* accufes (of his own 
 knowlege) their courts of moft unexampled delays in admi- 
 niftering juftice ; but even a writer of their own' has not fcru- 
 pled to teftify, that there were in his time more caufes there 
 depending than in all Europe befides, and fome of them an 
 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 ftatutes of amendment 
 and jecfails v , and by other more modern regulations, which 
 it now might be indelicate to remember, but which pofterity 
 will never forget) the time and attendance afforded by the 
 judges in our Englim courts are alfo greater then thofe of 
 many other countries. In the Roman calendar there were in 
 the whole year but twenty eight judicial or triverbial u days 
 allowed to the praetor for hearing caufes w : whereas, with 
 us, one fourth of the year is term time, in which three courts 
 eonftantly fit for the difpatch of matters of law ; befides the 
 very dole attendance of the court of chancery for determining 
 
 s deLaud. LL. c. 53. " Ot'nervvife called ftttfafti, in quilut 
 
 t Bodin. de Republ. I. 6. c. 6. licebat fraetori fan trie-jerba, do, dice, 
 
 v See pag. 406. addict. (Cal-v. Lex. 285.,) 
 
 w Spelman of the terms, . 4. c. 2. 
 
 fuits
 
 Ch. 26. WRONG s. 425 
 
 fuits in equity, and the numerous courts of affife and mjt 
 frius that fit in vacation for the trial of matters of fa<5r. 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 facts : in no other nation under heaven does juftice make 
 her progrefs twice in each year into almoft every part of the 
 kingdom, to decide upon the fpot by the voice of the people 
 themfelves the difputes of the remoteft provinces. 
 
 AND here this part of our commentaries, which regularly 
 treats only of redrefs at the common law, would naturally 
 draw to a conclufion. But, as the proceedings in the courts 
 of equity are very different from thofe at common law, and 
 as thofe courts are of a very general and extenfive jurifdi&ion, 
 it is in fome meafure a branch of the talk I have undertaken, 
 to give the ftudent fome general idea of the forms of practice 
 adopted by thofe courts. Thefe will therefore be the fubjeft 
 of the enfuing chapter.
 
 PRIVATE BOOK III. 
 
 CHAPTER THE TWENTY SEVENTH. 
 
 OP PR OCEED ING S . IN THE 
 COURTS OF EQJLJITY. 
 
 BEFORE we enter on the propofed fubjeft of the en- 
 fuing chapter, viz. the nature and method of proceed- 
 ings in the courts of equity, it will be proper to recoiled 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 exer- 
 cifes a folejurifdi&ion, diftinft from and exclufive of the other. 
 
 I HAVE already b attempted to trace (though very concife- 
 ly) thehiftory, rife, and progrefs, of the extraordinary court, 
 or court of equity, in chancery. The fame jurifdiction is 
 exercifed, and the fame fyftem of redrefs purfued, in the 
 equity court of the exchequer : with a diflin&ion 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 it's infant 
 tenants, was totally extinguifhed in every feodal view ; but 
 
 a ch. 4, and 6. b pag. 49, "c. 
 
 refulted
 
 Ch. 27. WRONGS. 427 
 
 refulted to the king in his court of chancery, together with 
 the general protection c of all other infants in the kingdom. 
 When therefore a fatherlefs child has no other guardian, the 
 court of chancery hath a right to appoint one : and, from all 
 proceedings relative thereto, an appeal lies to the houfe of 
 lords. The court of exchequer can only appoint a guardian 
 ad litem^ to manage the defence of the infant if a fuit be com- 
 menced againft himj a power which is incident to the jurif- 
 didion of every court of juftice d : 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 felicitations and the very 
 fliadow of undue partiality, a warrant is iflued by the king e 
 under his royal fign manual to the chancellor or keeper of his 
 feal, to perform this office for him : and, if he ads impro- 
 perly in granting fuch cuftodies, the complaint muft be made 
 to the king himfelf in council f . But the previous proceed- 
 ings on the commiflion, to inquire whether or no the party 
 be an idiot or a lunatic, are on the law-fide of the court of 
 chancery, and can only be 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 
 is necefTary, the attorney-general, at the relation of fome in- 
 formant, (who is ufually called the relator) 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, refpeclively, to grant com- 
 
 c F. N. B. 27. e See book I. ch. 8. 
 
 <* Cro. Jac. 641. 2 Lev. 163. T. f 3 P. W^. 108. SeeReg. Er. 267. 
 
 Jones 90. 
 
 miiEons
 
 428 PRIVATE Boo Kill. 
 
 miflions under their fevcral feals, to inquire into any abufes 
 of charitable donations, and re&ify the fame by decree ; 
 which may be viewed in the refpe&ive courts of the fevcral 
 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 refpondent in his anfwer to the exceptions 
 may allege what new matter he pleafes ; upon which they go 
 to proof, and examine witneiTes in writing upon all the mat- 
 ters in iflue : and the court may decree the refpondent to pay 
 all the cofts, though no fuch authority is given by the fta- 
 tutc. 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- 
 Jiions to the contrary h . 
 
 4. BY the feveral ftatutes, relating to bankrupts^ a fum- 
 mary jurifdiclion is given to the chancellor, in many matters 
 confequential or previous to the commiffions thereby directed 
 to be iflued ; from which the ftatutes give no appeal. 
 
 ON the other hand, the jurifdiclion of the court of chan- 
 cery doth not extend to fome caufes, wherein relief may be 
 had in the exchequer. No information can be brought, in 
 chancery, for fuch miftaken charities, as are given to the 
 king by the ftatutes for fupprefling fuperftitious ufes. Nor 
 can chancery give any relief againft the king, or direct any 
 at to be done by him, or make any decree difpofing of or 
 affecting his property ; not even in cafes where he is a royal 
 truftee \ Such caufes muft be determined in the court of 
 exchequer, as a court of revenue; which alone has power 
 
 g Duke's char. ofes. 62. 128. Cor- ny. Cane. 24 O<ft. 1740. Reeve i/. At- 
 
 yoration of Burford /. Leritball. Care, torncr-general. Cane. 27. Nov. 1741. 
 
 9 May, 1743. Lightboun v. Attorney-general, Cave. 
 
 h aVcrn. 118. May, 1743, 
 
 i Huggins v. York buildings Compa- 
 
 ever
 
 Ch. 27. WRONGS. 429 
 
 over the king's treafure, and the officers employed in it's ma- 
 nagement : unlefs where it properly belongs to the duchy 
 court of Lancafter, which hath alfo a fimilar j.urifdi&icn as 
 a 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 offi- 
 cers : or, if they differ in any thing more eflential, 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 of equity, as now underftood and praclifed in 
 our feveral courts of judicature. I have formerly touched 
 upon it k , but irnperfeclly : it deferves a more complete ex- 
 plication. Yet as nothing is hitherto extant, that can give 
 a ftranger a tolerable idea of the courts of equity fubfifting 
 in England, as diftinguifhed from the courts of law, the 
 compiler of thcfe obfervations cannot but attempt it with dif- 
 fidence : thofe who know them.beft, are too much employed 
 to find time to write ; and thofe, who have attended but lit- 
 tle in thofe courts, muft be often at a lofs for materials. 
 
 EQUITY then, in it's true and genuine meaning, is the 
 foul and fpirit of all law : pofitive law is conftrued, and ratio* 
 nal law is made, by it. In this, equity is fyncnymous to 
 juftice ; in that, to the true fenfe and found interpretation 
 of the rule. But the very terms of a court of equity ^ and a 
 court of 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 jurifdidlions, by letting law and equity in 
 
 k Vol. I. introd, . z. & 3. ad talc. 
 
 oppofition
 
 430 PRIVATE BOOK III. 
 
 oppofition to each other, will be found either totally erro- 
 neous, or erroneous to a certain degree. 
 
 1. 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 m : yet a court of 
 equity had no power to interpofe. Hard is the common law 
 ftill fubfifting, that land devifed, or defcending to the heir, 
 fhall not be liable to fimple contract debts of the anceftor or 
 devifor n , although the money was laid out in purchafing 
 the very land ; and that the father (hall 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 ceafed. The like may be obferved of the 
 defcent of lands to a remote relation of the whole blood, or 
 even their efcheat to the lord, in preference to the owner's 
 half-brother P ; and of the total ftop to all juftice, by caufing 
 the parol to demur % whenever an infant is fued as heir or is 
 party to a real action. In all fuch cafes of pofitive law, the 
 courts of equity, as well as the courts of law, muft fay with 
 Ulpian r , " hoc quidentperquam durum eft, fed ita lexfcripta eft" 
 
 2. IT is faid % that a court of equity determines according 
 to the fpiritof the rule, and not according to the ftricT:ne{s of 
 the letter. But fo alfo does a court of law. Both, for in- 
 ftance, 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, ifforefeen, can- 
 not be exprefied : fome will arife that will fall within the 
 
 1 Lord Kaytns. princ. ofequit. 44. p KiJ. pag .2x7. 
 
 m See Vol. II. ch. 23. pag. 378. <J St-c pag. 300. 
 
 n Ibid. fh. 15. pag. 243,244.^.23. r pf. 40. Q. 12. 
 
 pa?. 377. s Lord Kayms. princ. of equ. 177. 
 Ibid. ch. 14. pag. 208. 
 
 meaning
 
 Ch. 27. WRONG s. 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 a& of parliament ; and fo cafes within the letter 
 are frequently out of the equity. Here by equity we mean 
 nothing but the found interpretation of the law ; though 
 the words of the law itfelf may be too general, too fpecial, or 
 otherwife inaccurate or defective. Thefe then are the cafes 
 which, as Grotius 1 fays, " lex nan exafte definit^ fed arbitrio 
 " boni vir't permlttit ;" in order to find out the true fenfe and 
 meaning of the lawgiver, from every other topic of conftruc- 
 tion. But there is not a fmgle rule of interpreting laws, 
 whether equitably or ftri&ly, that is not equally ufed by the 
 judges in the courts both of law and equity : the conftru&ion 
 muft in both be the fame : or, if they differ, it is only as one 
 court of law may alfo happen to differ from another. Each 
 endeavours to fix and adopt the true fenfe of the law in queC- 
 tion ; neither can enlarge, diminifh, or alter, that fenfe in a 
 fmgle tittle. 
 
 3. AGAIN, it hath been faid u , that fraud^ accident^ and 
 truft are the proper and peculiar objects of a court of equity.' 
 But every kind vi fraud is equally cognizable, and equally ad- 
 verted to, in a court of law : and fome frauds are only cog- 
 nizable there, as frauds 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 impoffible 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 ill 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 
 
 ' Jtaequitatt. , 3. u i Roll, Abr. 374. 4X11/1.84. loMod. r. 
 
 the
 
 PRIVATE Bo OK III. 
 
 the courts of equity, in the manner formerly mentioned w : 
 and this fpecies of trufts, extended by inference and conftruc- 
 tion, have ever fince remained as a kind of peculium in thofe 
 courts. But there are other trufts, which are cognizable in 
 a court of law : as depofits, and all manner of bailments j 
 and efpecially that implied contract, fo highly beneficial and 
 ufeful, of having undertaken to account for money received 
 to another's ufe x , which is the ground of an action on the 
 cafe almoft 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 ac~r.s from the opinion 
 of the judge y , founded on the circumftances of every parti- 
 cular cafe. Whereas the fyftem of our courts of equity is a 
 laboured connected fyftem, governed by eftablifhed 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 refufmg 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 confidering it fometimes as the debt it- 
 felf, fo that the intereft (hall not exceed that penalty 8 : the 
 diftinguifhing between a mortgage zt five per cent y with a 
 claufe of reduction to four, if the intereft be regularly paid, 
 and a mortgage at four per cent, with a claufe of enlargement 
 to five* if the payment of the intereft be deferred : fo that the 
 former fhall be deemed a confcientious, the latter an unrigh- 
 teous bargain b : all thefe, and other cafes that might be in- 
 ftanced, are plainly rules of politive law; fupported only by 
 
 *' Book II. ch. 20. chancellor's foot. What an uncertain 
 
 x See pag. 161. meature would this be ! One cha.icel- 
 
 y This is fta'ed by Mr SelJen (Ta- lor has a. long foot, another a fliort 
 
 bletalk. tit. equity. ^ with more plea- foot, a third an indifferent fcot. It 
 
 fantry thaa truth. " For latv, we have is the fame thing with the chancel- 
 
 a meature, and know what to tnift lor's confcience." 
 
 to: equity is according to the confci- * a P. W uls 640. See Vol. II. pag. 
 ence of him that is chancellor } and, 337. 
 
 * as that is larger or narrower, fo is a Salk. i 54. 
 
 ' equity. 'TicaJlone, as if they fl.oul J b a Verc. 289, 316. 3 Atk. 520. 
 *' make the ftandatd for the meafurc a 
 
 the
 
 Ch. 27. WRONG s. 433. 
 
 the reverence that is fhewn, and generally very properly 
 fhewn, to a feries of former determinations ; that the rule 
 of property may be uniform and fteady. Nay, fometimes a 
 precedent is fo ftriHy followed, that a particular judgment, 
 founded upon fpecial circumstances c , gives rife to a general 
 rule, 
 
 Itf fhort, if a court of equity in England did really act, as 
 a very ingenious writer in the other part of the ifland fuppofes 
 it (from theory) to do, it would rife above all law, either 
 common or ftatute, and be a molt arbitrary legiflator^in every 
 particular cafe. No wonder he is fo often miftaken. Grotius, 
 or PufFendorf, or any other of the great mafters of jurifpru- 
 dence, would have been as little able to difcover, by their 
 own light, the fyftem of a court of equity in England, as the 
 fyftem of a court of law. Efpecialiy, as the notions before- 
 mentioned, of the character, power, and practice of a court 
 of equity, were formerly adopted and propagated (though not 
 with approbation of the thing) by our principal antiquarians 
 and lawyers; Spelman d , Coke e , Lambard f , and Selden &, 
 and even the great Bacon h himfelf. But this was in the in- 
 fancy of our courts of equity, before their jurifdiclion was 
 fettled, and when the chancellors themfelves, partly from 
 their ignorance of law (being frequently bifliops or ftatcfmen) 
 partly from ambition and luft of power (encouraged by the 
 arbitrary principles of the age they lived in) but principally 
 from the narrow and unjuft deciiions of the courts of law, 
 had arrogated to themfclves fuch unlimited authority, as hath 
 totally been difclaimed by their fucceffors for now above a cen- 
 tury paft. The decrees of a court of equity were then rather 
 in the nature of awards, formed on the fuclden pro re nata y 
 with more probity of intention than knowledge of the fubjed'r. ; 
 
 c See the cafe of Tofter and Munt, ipjixs, qu;n, eln.cer.te n:<va ratione, receg- 
 
 j Vern. 473. with regard ta the undil- rvfiat qitae volufrit, mutet ct delcat pnut 
 
 pofed ref.duum of perfonal eftates. func viJdirur prudextiat. (G/ff. 108.) 
 
 d Q^ae infanmh tiibunalibus multi e e See pag. 53, 54. 
 
 Ifgum canone dsctrnuntjudic-.^foluf ( res f Archtwi. 7 i , 7 2, 7 3 . 
 
 exegtrit) coblbct car.ulbnui ex arbitrio ; Z lib: fupra. 
 
 nee alittr decretii teneturfuae curiat -velfui h Dt Augm. Sclent, I. 8. e. 3 . 
 
 VOL. III. D d founded
 
 434 PRIVATE Bo OK III. 
 
 founded on no fettled principles, as being never defigned, 
 and therefore never ufed, for precedents. But the fyftems 
 of jurifprudence, 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 arid mode of their proceedings : the one being ori- 
 ginally derived (though much reformed and improved) from 
 the fcodal cuftoms, as they prevailed in different ages in the 
 Saxon and Norman judicatures ; the other (but with equal 
 inprovements) from the imperial and pontificial formularies, 
 introduced by their clerical chancellors. 
 
 THE fuggeftion indeed of every bill, to give jurifdi&ion 
 to the courts of equity, (copied from thofe early times) is, 
 that the complainant hath no remedy at the common law. 
 But he, who fhould from thence conclude, that no cafe is 
 judged of in equity where there might have been relief at 
 law, and at the fame time carts 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 
 Ihould be, exactly 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 meafure 
 of fubftantial juftice ought to have been the fame in both. 
 Thus the penalty of a bond, originally contrived to evade 
 the abfurdity of thofe monkifh conftitutions which prohibited 
 taking intereft for money, was therefore very pardonably 
 confidered as the real debt in the courts of law, when the 
 debtor neglected to perform his agreement for the return of 
 the loan with intereft : for the judges could not, as the law 
 then flood, give judgment that the intcre^l ftiould be fpeci- 
 fically paid. But when afterwards the taking of intereft be- 
 came legal, as the neceflary companion of commerce j , nay 
 after the ftatute of 37 Hen. VIII. c. g. had declared the 
 
 i See Vol. II pag.|45$. 
 
 debt
 
 Ch, 27. WRONG s. 43,5 
 
 debt or loan itfelf to be " the juft and true intent" for which 
 the obligation was given, their narrow minded fucceflbrs 
 ftill adhered wilfully and technically to the letter of the 
 antient precedents, and refufed to confider the payment of 
 principal, intereft, and cofts, as a full fatisfa&ion 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 fecurity for the loan t 
 in which light it was certainly underftood by the parties, 
 at leaft after thefe determinations ; and therefore this con- 
 ftruUon mould have been univerfally received. So in 
 mortgages, being only a landed as the other is a perfonal 
 fecurity for the money lent, the payment of principal, in- 
 tereft, and cofts ought at any time, before judgment exe- 
 cuted, 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 conftrudtions in different 
 courts upon one and the fame tranfaclion, obliged the par- 
 liament at length to interfere, and to direcl: 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 practice of 
 the courts of equity fhould alfo for the future be followed in 
 the courts of law. 
 
 AGAIN; neither a court of equity nor of law can vary 
 men's wills or agreements, or (in other words) make wills 
 or agreements for them. Both are to underftand them truly, 
 and therefore both of them uniformly. One court ought not 
 to extend, nor the other abridge, a lawful provificn delibe- 
 rately fettled by the parties, contrary to it's juft intent. A 
 court of equity, no more than a court of law, can relieve 
 againft a penalty in the nature of ftated damages ; as a rent 
 of 5/. an acre for ploughing up antient meadow k : nor 
 againft a lapfe of time, where the time is material to the 
 contract ; as in covenants for renewal of leafes. Both 
 courts ;will equitably conftrue, but neither pretends to con- 
 trol or change, a lawful ftipulation or engagement. 
 
 fc 2 Atk. 239. 
 
 D d 2 TH E
 
 436 PRIVATE BOOK III. 
 
 TH E rules of decifion are in both courts equally appofite 
 to the fubjedts of which they take cognizance. Where the 
 fubject-matter is fuch as requires to be determined fecundum 
 aequum et bonum^ as generally upon actions on the cafe, the 
 judgments of the courts of law are guided by the mo'ft libe- 
 ral equity. In matters of pofitive right, both courts muft 
 fubmit to and follow thofe antient and invariable maxims 
 " quae re'iftafunt et tradita 1 ." Both follow the law of na- 
 tions, and collect it from hiftory and the moft approved au- 
 thors of all countries, where the queftion is the object of 
 that law : as in cafe of the privileges ol embafladors m , 
 hoftages, or ranfom-bills n . In mercantile transactions they 
 follow the marine law , and argue from the ufages and au- 
 thorities received in all maritime countries. Where they exer- 
 cife a concurrent jurifdiction, they both follow the law of the 
 proper forurn p : in matters originally of ecclefiaftical cogni- 
 zance, they both equally adopt the canon or imperial Jaw, 
 according to the nature of the fubject q ; and, if a queftion 
 came before either, which was properly the object of a 
 foreign municipal law, they would both receive information 
 what is the rule of the country r , and would both decide ac- 
 cordingly. 
 
 SUCH then being the parity of law and reafon which go- 
 verns both fpecies of courts, wherein (it may be afked) does 
 their effential difference confift ? 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- 
 rifdilion, which were formerly driven into thofe courts by 
 narrow decifions of the courts of law, viz. the true con- 
 ftrudtion of fecurities for money lent, and the form and effect 
 
 1 Dejure naturae cogit.ire per not atque See Vol. I. pag. 75. Vol. II, pag. 
 
 dicere debemus^ de jure popull Romaia, 459.461.467. 
 
 fuae reticle funt it tradlta. (Cic. de Leg. p See Vol. II. pag. 513, 
 
 /. 3. aduslc.) q Ibid. 504. 
 
 m See Vol. I. pag. 253, r Ibid. 463, 
 
 n Ricord v. Bcttenham, Tr. 5 Ceo. 
 HI. B. R. 
 
 Of
 
 Ch. 27. WRONGS. 437 
 
 of a truft or fecond ufe ; upon thefe main pillars hath been 
 gradually creeled that ftruclure of jurifprudence, which pre- 
 vails in our courts of equity, and is inwardly bottomed upon 
 the fame fubitantial foundations as the legal fyftem which 
 hath hitherto been delineated in thefe commentaries ; how- 
 ever different they may appear in their outward form, from 
 the different tafte of their architects. 
 
 I. AND, firft, as to the mode of proof. When facts, or 
 their leading circumftances, reft only in the knowlege of the 
 party, a court of equity applies itfelf to his confcience, and 
 purges him upon oath with regard to the truth of the tranf- 
 t.ion ; and, that being once difcovered, the judgment is the 
 fame in equity as it would have been at law. But, for want 
 of this difcovery at law, the courts of equity have acquired a 
 concurrent jurifdi&ion with every other court in all matters 
 of account s . As incident to accounts, they take a concur- 
 rent cognizance of the adminiftration of perfonal affets : , 
 confequently of debts, legacies, the diftribution of the refi- 
 due, and the condudt of executors and adminiftrators u . As 
 incident to accounts, they alfo take the concurrent jurifdic- 
 tion of tithes, and all queftions relating thereto v ; of all 
 dealings in partnerfhip x , and many other mercantile tranf- 
 actions ; and fo of bailiffs, receivers, factors, and agents ^. It 
 would be endlefs to point out all the feveral avenues in human 
 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 jurifdi&ion 
 over almoft all matters of fraud ' L ; 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- 
 
 * I Chan. Caf. 57. x 2 Vcrn. 277. 
 t 2 p, Wms. I45 . y fad. 638. 
 
 a Chan. Caf. 152. z 2 Chan. Caf, 46. 
 
 * I ESU. caf. abr. 367. 
 
 D d 3 peaching
 
 438 PRIVATE BOOK III. 
 
 peaching or reverfing the judgment itfelf, but by prohibiting 
 the plaintiff from taking any advantage of a judgment, ob- 
 tained by fupprefling the truth a ; and which, had the fame 
 facts appeared on the trial, as now are difcovered, he would 
 never have obtained at all. 
 
 2. As to the mode of trial. This is by interrogatories ad- 
 miniftered to the witnefles, upon which their depofitions are 
 taken in writing, wherever they happen to refide. If there- 
 fore the caufe arifes in a foreign country, and the witneflcs 
 refide upon the fpot; if, in caufes arifing in England, the 
 witnefles are abroad, or fhortly to leave the kingdom ; or if 
 witnefles refiding at home are aged or infirm ; any of thefe 
 cafes lays a ground for a court of equity to grant a commiflion 
 to examine them, and (in confequence) to exercife the fame 
 jurifdiction, which might have been exercifed at law, if the 
 witnefles could probably attend. 
 
 3. WITH refpect 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 
 great variety of cafes. To inftance in executory agreements. 
 A court of equity will compel them to be carried into ftrict 
 execution b , unlefs where it is improper or impofiible ; in- 
 ftead of giving damages for their non-performance. And 
 hence a fiction is eftablifhed, that what ought to be done 
 fhall be confidered as being actually done c , and fhall relate 
 back to the time when it ought to have been done origi- 
 pally: and this fiction is fo clofely purfued through all it's 
 confequences, that it necefiarily branches out into many 
 rules of jurifprudence, which form a certain regular fyftem. 
 So, ofwafte, and other fimilar injuries, a court of equity 
 takes a concurrent cognizance, in order to prevent them by 
 injunction d . Over queftions'that may be tried at law, in a 
 great multiplicity of actions, a court of equity aflumes a jurif- 
 
 a- - p. w-ns. I4 g. Yearbook, nEdiu. < 3 P. Wm<. 215. 
 IV. 37. fl. 21. 6 i Ch. Rep. 14. 2 Chan. Caf. 3*. 
 
 b Equ. Caf. abr. 16, 
 
 diction,
 
 Ch. 27. WRONGS. 439' 
 
 diction, to prevent the expenfe and vexation of endlefs litiga- 
 tions and fuits e . In various kinds of frauds it aflumes a con- 
 current f jurifdiction, not only for the fake of a difcovery, 
 but of a more extenfive and fpecific relief: as by fetting afide 
 fraudulent deeds ? , decreeing re-conveyances h , or directing 
 an abfolute conveyance merely to ftand as a fecurity '. And 
 thus, laftly, for the fake of a more beneficial and complete 
 relief by decreeing a fale of lands k , a court of equity holds 
 plea of all debts, incumbrances, and charges, that may affect 
 it or iffue thereout. 
 
 4. THE true conftruction offectiritoes for money lent is an- 
 other fountain of jurifdiifHon 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 fecure 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 doctrine of perfonal pledges 
 or fecurities, and are equally applicable to mortgages of real 
 property. The mortgagor continues owner of the land, the 
 mortgagee of the money lent upon it : but this owner/hip is 
 mutually transferred, and the mortgagor is barred from re- 
 demption, if, when called upon by the mortgagee, he does 
 not redeem within a time limited by the court; or he may 
 when out of pofieilion 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 jurifdiction as to 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 
 eftate in a court of law ', if no truftee was interpofed ; and, 
 
 c i Vern. 30^. Prer.Clian. 261, i P. h 1 Vern. 237. 
 
 Vv'-Ti". 6-2. Stra. 404. * 2. Vcrn. 84. 
 
 f 2 p. v/ms. T-6. k i Equ. Caf. br, 337. 
 
 g i Vern. 31. i P. W. 239. J z P. Wms. 645. 663, 669. 
 
 D d 4 by
 
 440 PRIVATE BOOK III. 
 
 by a regular pofitive fyftcm eftablifhed in the courts of equity, 
 > the doctrine of trufls 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 jurifdicHon 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; and 
 which have been implicitly received and handed down by 
 fubfequent compilers, without attending to thofe gradual 
 acceflions and derelictions, by which in the courfe of a cen- 
 tury this mighty river hath imperceptibly fhifted it's channel. 
 Lambard in particular, in the reign of queen Elizabeth, 
 lays it down n , that " equity fhould not be appealed unto, 
 " but only in rare and extraordinary matters : and that a 
 * c good chancellor will not arrogate authority in every com- 
 *' plaint that fhall be brought before him, upon whatsoever 
 " 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 fhould know 
 *' how or how long to hold his own aflured to him." And 
 certainly, if a court of equity were ftill at fea, and floated 
 upon the occafional opinion which the judge who happened 
 to prefide might entertain of confcience in every particular 
 cafe, the inconvenience, that would arife from this uncer- 
 tainty, would be a worfe evil than any hardship that could 
 follow from rules too {tricX and inflexible. It's powers would 
 have become too arbitrary to have been endured in a country 
 like this % which boafts of being governed in all refpects by 
 law and not by will. But fince the time when Lambard 
 wrote, a fet of great and eminent lawyers p , who have fuc- 
 ceffively held the great feal, have by degrees creeled the fyf- 
 tern of relief administered by a court of equity into a regular 
 
 See pag. 413, 2 P. Wms. 685. 686. 
 
 4rcbdon. 71. 73. P See fag. 53, 54, 55. 
 
 fcience
 
 Ch. 27. WRONG s. 441 
 
 fcience, which cannot be attained without ftudy and expe- 
 rience, any more than the fcience of law : but from which, 
 when underftood, it may be known what remedy a fuitor is 
 entitled to expect, and by what mode of fuit, as readily and 
 with as much precifion, in a court of equity as in a court 
 of law. 
 
 IT were much to be wifhed, for the fake of certainty, peace, 
 and juftice, that each court would as far as poffible follow the 
 other, in the beft and moft effectual rules for attaining thofe 
 deiirable ends. It is a maxim, that equity follows the law ; 
 and in former days the 1 law has. not fcrupled to follow even 
 that equity, which was laid down by the clerical chancellors. 
 Every one, who is converfant in our antient books, knows 
 that many valuable improvements in the fcate of our tenures 
 (efpecially in leafeholds^ and copyholds') and the forms of 
 adminiftering juftice % have arifen from this fmgle reafon, 
 that the fame thing was conftantly effected by means of a 
 fubpoena in the chancery. And fure there cannot be a greater 
 folecifm, than that in two fovereign independent courts efta- 
 blifhed in the fame country, exercifing concurrent jurifdic- 
 tion, and over the fame fubjecr.- matter, there mould exift in 
 a fmgle inftance two different rules of property, clafhing 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 the very learned author to whom I have al- 
 luded, and vvhofe works have given exqulfite pleafure to every 
 comtemplative lawyer, is (among many others) a ftrong proof 
 how eafily names, and loofe'or unguarded expreifions to be met 
 with in the beft of our writers, are apt to confound a ftrang- 
 er; and to give him erroneous ideas of feparate jurifdiclions 
 now exifting in England, which never were feparated in any 
 other country in the univerfe. It hath alfo afforded me an 
 opportunity to vindicate, on the one hand the juftice of our 
 
 Gilbert of ejeftm. 2. 2 Bar. Abr. 160. f See pag. 200. 
 Bro. dbr. t.tenanttptr cofa, ic.LItt. . 77. 
 
 courts
 
 442 PRIVATE BOOK III. 
 
 courts of law from being that harfh and illiberal rule, which 
 many are too ready to fuppofe it ; and, on the other, the 
 juftice of our courts of equity from being the refult of mere 
 arbitrary opinion, or an exercife of dictatorial power, which 
 rides over the law of the land, and corrects, amends, and 
 controlls it by the loofe and fluctuating dictates of the con- 
 fcience 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 firft commencement of a fuit in chancery is by pre- 
 ferring a bill to the lord chancellor in the ftile of a petition ; 
 " humbly complaining fheweth to your lordfhip your orator 
 " A. B. that, &V." 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 fraud, 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 oifubpoena 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 pofleffion of lands, to flay 
 wafte, or to flop proceedings at law, an injunction is alfo 
 prayed in the nature of the interdiflum of the civil law, com- 
 manding the defendant to ceafe. 
 
 THIS bill muft call all neceflary parties, however remotely 
 concerned in intereft, before the court ; other wife no decree 
 can be made to bind them : and muft be figned by counfel, 
 as a certificate of it's decency and propriety. For it muft not 
 contain matter either fcandalous or impertinent: if it docs, 
 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 officers of the court, called a mafter in 
 chancery; of whom there are in number twelve, including 
 the mafter of the rolls, all of whom, fo late as the reign 
 f queen Elizabeth, were commonly doctors of the civil 
 
 law*.
 
 Ch. 27. WRONGS. 443 
 
 law 5 . The mafter is to examine the propriety of the bill : 
 and, if he reports it fcandalous or impertinent, fuch matter 
 muft be ftruck out, and the defendant fhall have his cofts ; 
 which ought of right to be paid by the counfel who figned 
 the bill. 
 
 WHEN the bill is filed in the office of the fix clerks, (who 
 originally were all in orders j and therefore, when the corifti- 
 tution of the court began to alter, a law 1 was made to per- 
 mit them to marry) when, I fay, the bill is thus filed, if an 
 injunction be prayed therein, it may be had at various ftages 
 of the caufe, according to the circumftances of the cafe. If 
 the bill be to ftay execution upon an opprefiive judgment, 
 and the defendant does not put in his anfwer within the ftated 
 time allowed by the rules of the court, an injunction will 
 ifiue of courfe : and, when the anfwer comes in, the in- 
 junction can only be continued upon a fufficient ground ap- 
 pearing from the anfwer itfelf. But if an injunction be 
 wanted to ftay wafte, or other injuries of an equally urgent 
 nature, then upon the filing of the bill, and a proper cafe 
 fupported by affidavits, the court will grant an injunction 
 immediately, to continue till the defendant has put in his 
 anfwer, and till the court {hall make fome farther order con- 
 cerning it: and, when the anfwer comes in, whether it fhall 
 then be dillblved or continued till the hearing of the caufe, is 
 determined by the court upon argument, drawn from confi- 
 dering the anfwer and affidavit together. 
 
 BUT, upon common bills, as foon as they are filed, pro- 
 cefs of fubpoena is taken out ; which is a writ commanding 
 the defendant to appear and anfwer to the bill, on pain of 
 IOC/. But this is not all : for, if the defendant, on fervice 
 of the fubpoena, does not appear within the time limited by 
 the rules of the court, and plead, demur, or anfwer to the 
 bill, he is then faid to be in contempt -, and the refpeclive 
 procefies of contempt are in fucceffive order awarded againft 
 him. The firft of which is an attachment, which is a writ 
 
 s Smith's commonvv. b. z. c. ia, * Scat, 14 & 15 Hen. VIII. c. 8. 
 
 in
 
 444 PRIVATE Boo Kill. 
 
 in the nature of a capias^ dire&ed to the fheriff, and com- 
 manding him to attach, or take up, the defendant, and bring 
 him into court. If the fherifF returns that the defendant non 
 tjl inventus, then an attachment with proclamations iffues j 
 which, befides the ordinary form of attachment, directs the 
 fherifF that he caufe public proclamations to be made, 
 throughout the county, to fummon the defendant, upon his 
 allegiance, pcrfonally to appear and anfwer. If this be alfo 
 returned with a non cjl inventus, and he ftill {rands out in 
 contempt, a ccmmijTion of rebellion is awarded againft him, for 
 not obeying the proclamations according to his allegiance ; 
 and four commiffioners 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 lawr. and 
 government, by refufing to attend his fovereign when there- 
 unto required : fince, as was before obferved % matters of 
 equity were originally determined by the king in perfon, 
 aifcfted by his council ; though that bufinefs is now devolved 
 upon his chancellor. If upon this commifiion of rebellion 2 
 non eft inventus is returned, the court then fends zferjeant at 
 arms in queft of him ; and, if he eludes the fearch of the 
 ferjeant alfo, then a fequejlrat'ion iflues to feife all his perfonal 
 eftate, and the profits of his real, and to detain them, fub- 
 je& to the order of the court. Sequeftrations were firft in- 
 troduced by fir Nicholas Bacon, lord keeper in the reign of 
 queen Elizabeth ; before which the court found fome diffi- 
 culty in enforcing it's procefs and decrees ". After an order 
 for a fequeftration iffued, the plaintiff's bill is to be taken, 
 pro confejjb) and a decree to be made accordingly. So that the 
 lequeftration does not feem to be in the nature of procefs to 
 bring in the defendant, but only intended to enforce the per- 
 formance of the decree. Thus much if the defendant ab- 
 iconds. 
 
 I F the defendant is taken upon any of this procefs, he is 
 to be committed to the fleet, or other prifon,-till he puts in 
 bis appearance, or anfwer, or performs whatever clfe this 
 
 4 2 J 
 
 procefs
 
 Ch. 27. WRONGS. 445 
 
 procefs is iflued to enforce, and alfo clears his contempts by 
 paying the cofts which the plaintiff has incurred thereby. 
 For the fame kind of procefs (which was alfo the procefs of 
 the court of ftar-chamber till it's diflblution w ) is ifTued out 
 in all forts of contempts during the progrefs of the caufe, if 
 the parties in any point refufe or negledl to obey the order of 
 the court. 
 
 TH E procefs againft a body corporate is by dtftringas, to 
 diftrein them by their goods and chattels, rents and profits, 
 till they {hall obey the fummons or directions of the court. 
 And, if a peer is a defendant, the lord chancellor fends a let- 
 ter mijfive to him to requeft his appearance, together with a 
 copy of the bill ; and, if he negledts to appear, then he may 
 be ferved with zfubpoena ; and, if he continues ftill in con-- 
 tempt, a fequeftration iflues out immediately againft his lands 
 and goods, without any of the mefne procefs of attachments, 
 &V, which are directed only againft the perfon, and there- 
 fore cannot affet a lord of parliament. The fame procefs 
 iflues againft a member of the houfe of commons, except 
 only that the lord chancellor fends him no letter miflive. 
 
 THE ordinary procefs before-mentioned cannot be fued out, 
 till after fervice of the fub-poena, for then the contempt be- 
 gins j otherwife he is not prefumed to have notice of the 
 bill : and therefore, by abfconding to avoid thcfubpoena, a 
 defendant might have eluded juftice, till theftatute 5 Geo. II. 
 c. 25. which enacts that, where the defendant cannot be 
 found to be ferved with procefs of fubpoena, and abfconds 
 (as is believed) to avoid being ferved therewith, a day fhall 
 be appointed him to appear to the bill of the plaintiff; which 
 is to be inferted in the London gazette, read in the parifh 
 church where the defendant lafl: lived, and fixed up at the 
 royal exchange : and jf{he defendant doth not appear upon 
 that day, the bill fhall be taken pro confeffo. 
 
 BUT if the defendant appears regularly, and takes a copy 
 pf the bill, he is next to demur, plead, or anfwer. 
 
 w 18 Rym, Feed. 195. 
 
 A DE-
 
 446 PRIVATE BOOK III. 
 
 A DEMURRER in equity is nearly of the fame nature as 
 a demurrer in law j being an appeal to the judgment of the 
 court, whether the defendant fliall be bound to anfwer the 
 plaintiff's bill : as, for want of fufficient matter of equity 
 therein contained ; or where the plaintiff, upon his own 
 (hewing, appears to have no right ; or where the bill fecks a 
 difcovery of a thing which may caufe a forfeiture of any kind, 
 or may convic-t 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 
 fhall be difmiffed : if the demurrer be over- ruled, the defend- 
 ant is ordered to anfwer. 
 
 A PLEA may be either to ihejurifdiftion j (hewing that the 
 court has no cognizance of the caufe : or to theperfon ; (hew- 
 ing fome difability in the plaintiff, as by outlawry, excom- 
 munication, and the like : or it is in bar ; (hewing fome 
 matter wherefore the plaintiff can demand no relief, as an 
 adl: 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 minutiae in the pleadings will be here 
 allowed ; for the parties are at liberty, on the difcovery of 
 any errors in form, to amend them x . 
 
 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 
 a peer or peerefs ; but, where there are amicable defendants, 
 their anfwer is ufuaily taken without oath by confent of the 
 plaintiff. This method of proceeding is taken from the eccle- 
 fiaftical courts, like the reft of the^ra&ice in chancery: for 
 there, in almoft every cafe, the plaintiff may demand the 
 
 x En cefl ccurt dt cbaur.ceric, Lome ne et. nsmi ex rtgcre juris. (Dyverfite des 
 
 ferra frejudtce par fa myfylcdying cu pur eourti. edit. 1534. /o/. 296,297. Bro. 
 
 it'faut de forme, met fiLnyuc It veryti del Abr. t. jurifdiftion. 50.) 
 
 - _.'. r : c.:r ;/ doit agarder fdsKjtte cwfi'uns, 
 
 oath
 
 Ch. 27. WRONG s. 447 
 
 oath of his adverfary in fupply of proof. Formerly this was 
 done in thofe courts with compurgators, in the manner of 
 our 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 
 ufe of in the fpiritual courts, as well in criminal cafes of ec- 
 clefiaftical cognizance, as in matters of civil right : and it 
 was then ufually denominated the oath ex officio whereof the 
 high commiflion court in particular made a moft extravagant 
 and illegal ufe ; forming a court of inquiution, in which all 
 perfons were obliged to anfwer, in cafes of bare fufpicion, 
 if the commiflioners thought proper to proceed againft them 
 ex offido for any fuppofed ecclefiaftical enormities. But when 
 the high commiflion court was abolifhed by ftatute 16 Car. I. 
 c. ii. this oath ex officio was abolifhed with it; and it is 
 alfo enacted by ftatute 13 Car. II. ft. i. c. 12. " that it (hall 
 " not be lawful for any bifhop or ecclefiaftical judge to 
 " tender to any perfon the oath ex officio , or any other oath 
 " whereby the party may be charged or compelled to confefs, 
 " accufe, or purge himfelf of any criminal matter." But 
 this does not extend to oaths in a civil fuit, and therefore it 
 is ftill the practice both in the fpiritual courts, and in equi- 
 ty, to demand the perfonal anfwer of the party himfelf 
 upon oath. Yet if in the bill any queftion be. put, that 
 tends to the difcovery of any crime, the defendant may 
 thereupon demur, as was before obferved, and may refufe to 
 anfwer. 
 
 IF the defendant lives within twenty miles of London, he 
 muft be fworn before one of the mafters of the court : if far- 
 ther off, there may be a dedimus poteftatem or commiflion to 
 take his anfwer in the country, where the commiflioners ad- 
 minifter him the ufual oath ; and then, the anfwer being 
 fealed up, either one of the commiflioners carries it up to the 
 court ; or it is fent by a meflenger, who fwears he received it 
 from one of the commiflioners, and that the fame has not 
 been opened or altered fioce he received it. An anfwer muft, 
 be figned by counfel, and muft either deny or confefs all the 
 
 material
 
 PRIVATE BOOK III. 
 
 material parts of the bill ; or it may confefs and avoid, that 
 is, juftify or palliate the facts. 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 difmifTed the court : if he has any relief to pray againft the 
 plaintiff, he muft do it by an original bill of his own, which 
 is called a crofs bill. 
 
 AFTER anfwer put in, the plaintiff, upon payment of 
 cofls, 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 
 
 * o 
 
 fuch amended bill. But this muft be before the plaintiff has 
 replied to the defendant's anfwer, whereby the caufe is at 
 iflue ; for afterwards, if new matter arifes, which did not 
 exift before, he muft fet it forth by a 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 
 affidavit to his bill, fwearing that he does not collude with 
 either of the parties. 
 
 IF the plaintiff finds fufficient matter confefTed 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 fufficient, and the defendant's anfwer to be 
 
 directly
 
 Ch. 27." W R o N G s.' 449 
 
 djre&ly the reverfe ; which he is ready to prove as the court 
 fhall award : upon which the defendant rejoins, averring the 
 Jike on his fide ; which is joining iffue upon the fafts in dif- 
 pute. To prove which fats is the next concern. 
 
 THIS is done by examination of witnefTes, and taking their 
 depofitions in writing, according to the manner of the civil 
 law. And for that purpofe interrogatories are framed, or 
 queftions in writing; which, and which only, are to be 
 propofed to, and afked of, the witnefles in the caufe. Thefe 
 interrpgatories muft be fhort and pertinent : not leading 
 ones ; (as "did not you fee this, or, did not you hear 
 <e that ?)" for if they be fuch, the depofitions taken thereon 
 will be fupprefTed and not fuffered to be read. For the pur- 
 pofe of examining witnefles in or near London, there is an 
 examiner's office appointed j but, for evidence who live in 
 the country, a commiffion to examine witnefles is ufually 
 granted to four commiflioners, two named of each fide, or 
 any three or two of them, to take the depofitions there. And 
 if the witnefles refide beyond fea, a commiflion may be had 
 to examine them there upon their own, oaths, and (if fo- 
 reigners) upon the oaths of fldlful interpreters. And it hath 
 been held y that the depofition of an heathen who believes in 
 the fupreme bHng, taken by commiflion in the moft folemn 
 manner according to the cuftom of his own country, may 
 be read in evidence. 
 
 THE commiffioners are fworn to take the examinations 
 truly and without partiality, and not to divulge them till 
 publifhed in the court of chancery ; and their clerks are alfo 
 fworn to fecrecy. The witnefles are compellable by procefs 
 of fubpoena^ as in the courts of common law, to appear and 
 fubmit to examination. And when their depofitions are 
 taken, they are tranfmittcd to the court with the fame care 
 that the anfwer of a defendant is fent. 
 
 y Omichund. v, Barker. lAtk. 21, 
 
 . IIJ. E * IF
 
 45O PRIVATE BOOK III. 
 
 IF witnefles to a difputable fact are old and infirm, it is 
 very ufual to file a bill to perpetuate the teftimony of thofe 
 witnefles, 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 devifed 
 by will away from the heir at law j and the devifee, in order 
 to perpetuate the teftimony of the witnefles to fuch will, ex- 
 hibits a bill in chancery againft the heir, and fets forth the 
 will verbatim therein, fuggefting that the heir is inclined to 
 difpute it's validity : and then, the defendant having anfwer- 
 cd, they proceed to iflue as in other cafes, and examine the 
 witnefles 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 cofts, even though he 
 contefts the will. This is what is ufually meant by proving 
 SL will in chancery. 
 
 WHEN all the witnefles 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 infpetion of all 
 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 
 
 f O 
 
 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 refpe&ively. Concerning the authority of 
 the mafter of the rolls to hear and determine caufes, and his 
 general power in the court of chancery, there were (not 
 many years fince) divers queftions and difputes very warmly 
 agitated ; to quiet which it was declared by ftatute 3 Geo. II. 
 c. 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, Ihould be deemed to be valid ; fubject neverthe- 
 lefs to be difcharged or altered by the lord chancellor, and 
 ifo as they {hall not be jnrolled, till the fame are figned by his 
 lordfhip. Cither party may be fubpoena"^ to hear judgment 
 
 on
 
 Ch. 27. WRONGS. 451 
 
 on the day fo fixed for the hearing : and then, if the plaintiff 
 does not attend, his bill is difmiffed with cofts ; or, if the 
 defendant makes default, a decree will be made againft him, 
 which will be final, unlefs he pays the plaintiff's coft of at- 
 tendance, and (hews good caufe to the contrary on a day ap- 
 pointed by the court. A plaintiff's bill may alfo at any time 
 be difmifled 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, oh 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 ftates 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 conveni- 
 ent 2 : 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 fame procefs for him, except 
 that they may not read any part of his anfwer ; and the coun- 
 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 in court by the regiftrar. The matter of cofts 
 to be given to either party, is not here held to be a point of 
 right, but merely difcretionary (by the ftatute 17 Ric. II. 
 c. 6.) according to the circumftances of the cafe, as they ap- 
 
 On a trial at law if the plaintiff the truth of the defendant's teftimony, 
 
 reads any part of the defendant's anfwer, and makes the whole of his anfwer 
 
 he muft read the whole of it : for by evidence, 
 reading any of it he fliews a reliance on 
 
 E e 2 pear
 
 45 2 PRIVATE BOOK III; 
 
 pear more or lefs favourable to the party vanquifhed. And 
 yet the ftatute 15 Hen. VI. c. 4. feems exprefsly to direct, 
 that as well damages as cofts fhall be given to the defendant, 
 if wrongfully vexed in this court. 
 
 THE chancellor's decree is either interlocutory or final. It 
 very feldom happens that the firft decree can be final, or con- 
 clude the caufe ; for, if any matter of fact is ftrongly contro- 
 verted, this court is fo fenfible of the deficiency of trial by 
 written depofitions, that it will not bind the parties thereby, 
 but ufually directs the matter to be tried by jury j efpecially 
 fuch important facts as the validity of a will, or whether A 
 is the heir at law to B, or the exiftence of a modus decimandi 
 or real and immemorial compofition for tithes. But, as no. 
 jury can be fummoned to attend this court, the fact is ufually 
 directed to be tried at the bar of the court of king's bench or 
 at the affifes, upon a feigned iffue. For, (in order to bring 
 it there, and have the point in difpute, and that only, put in 
 iffue) an action is feigned to be brought, wherein the pre- 
 tended plaintiff declares, that he laid a wager of 5/. with 
 the defendant that A was heir at law to B j and then avers 
 that he is fo ; and brings his action for the 5/. The de- 
 fendant allows the wager, but avers that A is not the heir to 
 B ; and thereupon that iffue is joined, which is directed out 
 of chancery to be tried : and thus the verdict of the jurors at 
 law determines the fact in the court of equity. Thefe feigned 
 iffues feem borrowed from the fponfio judicially of the Ro- 
 mans a : and are alfo frequently ufed in the courts of law, by 
 confentof the parties, to determine fome difputed right with- 
 out the formality of pleading, and thereby to fave much time 
 and expenfe in the decifion of a caufe. 
 
 So likewife, if a quefKon of mere law arifes in the courfe of 
 a caufe, as whether by the words of a will an eftate for life or 
 
 a NttatJ) Ifcnjio jut!iclalis: "fycndffrt " tti tuusft ? fpcndec, til rneusft" J-'idt 
 " quingentos, Jt meutjit f ffcr.d<.t;,J! tuut . Heinecc. Antiquitat. 1. 3. 1. 16. .3. & 
 <f ft. El (u qucqut fpwdtjne ijulr.gtntcs, Sigon. dtjudiciii. l.tJ.f. qbb.citat, ibid. 
 
 in
 
 Ch. 27. WRONGS. 453 
 
 in tail is created, or whether a future intereft devifed by a tef- 
 tator (hall operate as a remainder or an executory devife, it is 
 the practice of this court to refer it to the opinion of the judges 
 of the court of king's bench or common pleas, upon a cafe 
 ftated for that purpofe ; wherein all the material facts are ad- 
 mitted, and the point of law is fubmitted to their decifion ; 
 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 are to be fettled, incumbrances and 
 debts to be inquired into, and a hundred little facts to be 
 cleared up, before a decree can do full and fufficient juftice. 
 Thefe matters are always by the decree on the firft hearing 
 referred to a mafter in chancery to examine ; which exami- 
 nations frequently laft for years : and then he is to report the 
 fact, as it appears to him, to the court. This report may 
 be excepted to, difproved, and over-ruled ; or otherwife is 
 confirmed, and made abfolute, by order of the court. 
 
 WHEN all iflues are tried and fettled, and all references to 
 the mafter encted, the caufe is again brought to hearing upon 
 the matters of equity referved ; and a final decree is made : 
 the performance of which is inforced (if neceflary) by com- 
 mitment of the perfon or fequeftration of the party's eftate. 
 And if by this decree either party thinks himfelf aggrieved, 
 he may petition the chancellor for a rehearing ; whether it 
 was heard before his lordfhip, 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 b ; which is done 
 of courfe unlefs a rehearing be defired. Every petition for a 
 rehearing muft be figned by two counfel of character, ufually 
 fuch as have been concerned in the caufe, certifying that they 
 apprehend the caufe is proper to be reheard. And upon the 
 
 b Stat, 3 Ceo. II. c. 30. See pag, 450. 
 
 E e 3 rehearing
 
 454 PRIVATE BOOK. III. 
 
 rehearing all the evidence taken in the caufe, whether 
 read before or not, is now admitted to be read : becaufe it is 
 the decree of the chancellor himfelf, who only now fits to 
 hear reafons why it mould not be enrolled and perfected j at 
 which time all omiflions of either evidence or argument may 
 be fupplied e . But, after the decree is once figned and en- 
 rolled, it cannot be reheard or rectified, 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; or, by fpecial leave 
 of the court, upon oath made of the difcovery of new matter 
 or evidence, which could not poflibly be had or ufed at the 
 time when the decree patted. But no new evidence or mat- 
 ter then in the knowlege of the parties, and which might have 
 been ufed before., mall 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 fubjecl: who thinks himfelf aggrieved 
 by any interlocutory order or final determination in this court : 
 and it is effected by petition to the houfe of peers, and not 
 by writ of error, as upon judgments at common law. This 
 jurifdiction is faid d to have begun in 18 Jac. I. and certainly 
 the firft petition, which appears in the records of parliament, 
 was preferred in that year e ; and the firft that was heard and 
 determined (though the name of appeal was then a novelty) 
 was prefented in a few months after f : both levelled againft 
 the lord keeper Bacon for corruption, and other mi fbehaviour. 
 It was afterwards warmly controverted by the houfe of com- 
 mons in the reign of Charles the fecond g . But this difpute 
 is now at reft h : it being obvious to the reafon of all man- 
 
 * O 
 
 kind, that, when the courts of equity became principal tri- 
 bunals for deciding caufes of property, a revifion of their de- 
 
 c Gilb. Rep. 151, 152. f Ibid. 3. u, la Dec. i6ai. 
 
 J Com. Journ. 13 Mar. 1704. f Com. Journ. 19 Nov. 1675, V. 
 
 Lords' Journ. 23 Mar. 1620. h Show. Parl, C. 81. 
 
 crees
 
 Ch. 27. WRONGS. 455 
 
 crees (by way of appeal) became equally ncceflary, as a writ 
 of error from the judgment of a court of law. And, upon 
 the fame principle, from decrees of the chancellor relating 
 to the commiflioners for the difiblution of chauntries, &c, 
 under the ftatute 37 Hen. VIII. c. 4. (as well as for chari- 
 table ufes under the ftatute 43 Eliz. c. 4.) an appeal to the 
 king in parliament was always unqueftionably allowed '. But 
 no new evidence is admitted in the houfe of lords upon any 
 account ; this being a diftinc-t jurifdic-tion k : which differ^ it 
 very confiderably from thofe inftances, wherein the fame ju- 
 rifdi&ion revifes and corred-ts it's own acts, as in rehearings 
 and bills of review. For it is a practice unknown to our 
 law, (though conftantly followed in the fpiritual courts) 
 when a fuperior court is reviewing the fentence of an inferior, 
 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. 
 
 Duke's char. ufes. 62. k Gi!b. Rep. 15?, 156. 
 
 THE END OF THE THIRD BOOK.
 
 APPEND 
 
 N*. I. 
 Proceedings on a Writ of RIGHT Patent. 
 
 5. 1 . Writ of R i G H T />&/ z /* C o u R T BARON. 
 
 <D? D 18 <ffi> <fl5 the fecond by the grace of God of Great 
 Britain, France, and Ireland king, defender of the 
 faith, and fo forth; to Willoughby earl of Abingdon, 
 greeting. H@e command you that without delay you 
 hold full right to William Kent efquire, of one meffuage and 
 twenty acres of land with the appurtenances in Dorchefter, 
 which he claims to hold of you by the free fervi.ce -of one penny 
 yearly in lieu of all fervices, of which Richard Allen deforces 
 him. And unlefs you fo do, let the flieriff of Oxfordshire do 
 it, that we no longer hear complaint thereof for defeft of right. 
 WitmtS ourfelf at Weftminfter, the twentieth day of Auguft, 
 in the thirtieth year of our reign. 
 
 Pledges of profecution, j 
 
 j. 2. Writ o^ToLT, to remove it into the COUNTY COURT. 
 
 Charles Morton, efquire, Sheriff of Oxfordfhire, to John. 
 Long bailiff errant of our lord the king and of myfelf, greet- 
 ing. 2i5eeattfe by the complaint of William Kent, efquire, 
 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 GEORGE the fecond by the grace of God of Great Britain* 
 France, and Ireland king, defender of the faith, and fo forth, 
 at Oxford in the fhirehoufe there holden, I am informed, that 
 although he himfelf the writ of our faid lord the king of right 
 patent directed to Willoughby earl of Abingdon, for this that 
 
 he
 
 ii APPENDIX. 
 
 I. he mould hold full right to the faid William Kent of one mef- 
 / 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 ; 
 yej., for that the faid Willoughby earl of Abingdon favoureth 
 the faid Richard Allen in this part, and hath hitherto delayed 
 to do full right according to the exigence of the faid writ, I 
 command you on the part of our faid lord the king, firmly en- 
 joining, that in your proper perfon you go to the court baron 
 of the faid Willoughby earl of Abingdon at Dorchefter 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 fum- 
 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 anfwer to the faid Wil- 
 liam Kent thereof. And have you there then the faid plaint, 
 the fummoners, and this precept. >i\)Ctt in my county court 
 at Oxford in the fhirehoufe, the fixth day of September, in the 
 year aforefaid. 
 
 5. 3. Writ efPoxt, to remove it into the Court of COMMOK 
 PLEAS. 
 
 <E> C JO IB <ffi> <C the fecond, by the grace of God of Great 
 Britain, France, and Ireland king, defender of the faith, and 
 ib forth, to the fheriff of Oxfordfhire, greeting. $^Ut, at the 
 fequeft of William Kent, before our juftices at Weftminfteron 
 the morrow of All Souls, the plaint which is in your county 
 court by our writ of right, between the faid William Kent de- 
 mandant, and Richard Allen tenant, of one mefluage and 
 twenty acres of land with the appurtenances in Dorchefter ; 
 and fammon by good fummoners the faid Richard Allen, that 
 he be then there, to anfwer to the faid William Kent thereof. 
 And have you there the fummoners and this writ. iitttCfS 
 ourfelf at Weftminfter, the tenth day of September, in the 
 thirtieth year of our reign. 
 
 .4. Writ of RIGHT, quia Dominus remifit Curiam. 
 
 <SE C fi> JB <S> <& the fecond by the grace of God of Great 
 Britain, France, and Ireland king, defender of the faith, and 
 fo forth, to the fheriff of Oxfordfhire, greeting. CommatlU 
 Richard Allen, that he juftly and without delay render unto 
 William Kent one meffuage and twenty acres of land with the 
 appurtenances in Dorchefter, which he claims to be his right 
 and inheritance, and whereupon he complains that the aforefaid 
 Richard unjuftly deforces him. And unlefs he fhall fo do, and 
 
 if
 
 APPENDIX. 
 
 in 
 
 if the faid William fhalll give you fecurity of profecuting his N. T. 
 claim, then fummon by good fummoners the laid Richard, that *- v~*^ 
 he appear before our juftices a't Weftminfter on the morrow of 
 All Souls, to fhew wherefore he hath not done it. And have 
 you there the fummoners and this writ. CtDlttlCfS ourfelf 
 at Weftminfter, the twentieth day of Auguft, in the thirtieth 
 year of our reign. Becaufe Willoughby earl of Abingdon, the 
 chief lord of that fee, hath thereupon remifed unto us his court. 
 
 Pledges of 1 John Doe. Summoners of the C John Den. Sheriff** 
 profecution, } Rich. Roe. within named Richard, { Rich. Feu. Return. 
 
 .5. The Record, with award of "Battel. 
 
 at Weftminfter before fir John Willes knight, and his 
 brethren, juftices of the bench of the lord the king at Weft- 
 minfter, 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. 
 
 Oxon, 1 JHHiliattt &ent> efquire, by James Parker his attorney, writ. 
 
 towit. J demands againft Richard Allen, gentleman, one 
 me/mage and twenty acres of land, with the appurtenances, in 
 Dorchefter, as his right and inheritance, by writ of the lord D on: - Hlta 
 the king of right, bCCatlfc Willoughby earl of Abingdon the mlfit turia 
 chief lord of that fee hath now thereupon remifed to the lord 
 the king his court. ittlO XDihercupOtl he faith, that he himfelf Coujit. 
 was feifed of the tenements aforei'aid, with the appurtenances, 
 in his demefne as of fee and right, in the time of peace, in the 
 time of the lord GEORGE the fir ft late king of Great Britain, 
 by taking the efplees thereof to the value * [of ten millings, Efplees. 
 and more, in rents, corn, and grafs.] Ard that fuch is his 
 right he offers [fuit and good proof.] 25tU) the laid Richard Defence. 
 Allen, by Peter Jones his attorney, comes and defends the right 
 of the faid William Kent, and his feifin, when [and where it 
 mall behove him,] and all [that concerns it,] and whatfoever 
 [he ought to defend,] and chiefly the tenements aforefaid with 
 the appurtenances, as of fee and right, [namely, one mefTuage 
 and twenty acres of land, with appurtenances, in Dorchefter.] 
 2ttlt) this he is ready to defend by the body o : his free man, Wager cf 
 George Rumbold by name, who is prefent here in court ready Baud. 
 to defend the fame by his body, or in what manner foever the: 
 court of the lord the king mail conlider that he ought to defend. 
 
 * N. B. The claufes bctv.-ecn hooks, in this and the fjbfequent numbers of 
 the appendix, are ufually M otherwise expreffcd in the records than by an &V. 
 
 And
 
 v 
 
 A P P E N D I X. 
 
 N-\ I. 
 *~~v*J 
 
 Replication. 
 
 Joinder f 
 :te 
 
 Award of 
 
 BatteJ. 
 
 Pledges. 
 
 Coutinu- 
 * occ ' 
 
 'Champions 
 
 -'' -" 
 
 ,. , 
 Cjdl 
 
 And if any mifchance mould befal the faid George (which God 
 defend) he is ready to defend the fame by another man, who 
 [i s bounden and able to defend it.] 3BrtD the faid William 
 Kent faith, that the faid Richard Allen unjuftiy defends the 
 right of him the faid William, and his feifin, c5V, and all &e, 
 and whatfoever, fcffr, and chiefly of the tenements aforefaid with 
 the appurtenances, as of fee and right, \3c ; 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 
 value, \5c. s$Ht> that fuch is his right, he is prepared to prove 
 by the body of his freeman, Henry Broughton by name, who 
 is prefent here in court ready to prove the fame by his body, or 
 in what manner foever the court of the lord the king ihall con- 
 iider that he ought to prove; and if any mifchance mould befal 
 the faid Heriry (which God defend) he is ready to prove the 
 fame by another man, who, &c. 3fnt) hereupon it is demanded 
 of the faid George and Henry, whether they are ready to make 
 batrel, as they before have waged it : who fay that they are. 
 ftqfo t fo e f ame George Rumbold giveth gage of defending, and 
 the faid Henry Broughton giveth gage of proving ; and, fuch 
 engagement being given as the manner is, it is demanded 'of 
 the faid William Kent and Richard Allen, if they can fay any 
 thing wherefore battel ought not to be awarded in this cafe ; 
 who fay that they cannot. iCfycrefore it is COtllKjercD, that 
 battel be made thereon, &c. s&ttt) the faid George Rumbold 
 findeth pledges of battel, to wit, Paul Jenkins and Charles 
 Carter; and the faid Henry Broughton findeth alfo pledges of 
 battel, to wit, Reginald Read and Simon Tayler. SltD ttycrCa 
 UPOU day is here given as well to the faid William Kent as to 
 the laid Richard Allen, to wit, on the Morrow of faint Martin 
 next corning, 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 furnilhed 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 mall fall thereon. 3ft which day here 
 come as well the faid William Kent as the faid Richard Alien 
 by their attorneys aforefaid, and the faid George Rumbold and 
 Henry Broughton in their proper perfons likewjfe come, fuf- 
 ficiently furnifhed with competent armour as becomes them, 
 ready to make the battel aforefaid, as they had before waged it. 
 Stu'D hereupon day is further given by the court here, as well 
 to the faid William Kent as to the faid Richard Alien, at 
 Tothiil near the city of Weflminilcr in the county of Middle- 
 fex, to wit, on the morrow of the purification of the bleffed 
 virgir. Mary next coming, by the affent as well of the faid Wil- 
 
 liam
 
 APPENDIX, v 
 
 Ham as of the aforefaid Richard. And it is commanded, that NX I. 
 each of them have then there his champion, armed in the form < v-w 
 aforefaid, ready to make the battel aforefaid, and that their 
 bodies in the mean time, &c. 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 
 William Kent being foiemnly called doth not come, nor hath 
 profecuted his writ aforefaid. fCfyerefove it is COnfUJCTCD, that Plaintiff 
 the fame William and his pledges of profecuting, to wit, John n n foit- 
 Doe and Richard Roe, be in mercy for his falfe complaint, and 
 that the fame Richard go thereof without a day, &c, and alxj Final Judg- 
 that the faid Richard do hold the tenements aforefaid with the en !> for 
 appurtenances, to him and his heirs, quit of the faid William jj >t 
 and his heirs, for ever, <5c. 
 
 .6. Trial ly tne grand Ajjife. 
 
 And the faid Richard Allen, by Peter Jones, his Defence. 
 
 attorney, comes and defends the right of the faid William 
 Kent, and his feifin, when, sV, and all, C5V, And whatsoever, 
 5V, and chiefly of the tenements aforesaid with the appurte- 
 nances, as of fee and right, &c, and puts himfelf upon the 
 grand affife of the lord the king, and prays recognition .to be 
 made, whether he himfelf hath greater right to hold the tene- Mifc. 
 ments aforefaid with the appurtenances to him and his heirs as 
 tenants thereof as he now holdeth them, or the faid William 
 to have the faid tenements with the appurtenances as he above 
 demandeth them. 3l|U) he tenders here in court fix fhillings Tender of 
 and eight- pence to the ufe of the lord the now king, &c. for tl;)e Demi- 
 that, to wit, it may be inquired of the time [of the feifin tr ' ark ' 
 alleged by the faid William.] And he therefore prays, that it 
 may be inquired by the afiife, whether the faid William Kent 
 was feifed of the tenements aforefaid with the appurtenances in 
 his demefne as of fee in the time of the faid lord the king 
 GEORGE the firft, as the faid William in his demand before 
 hath alleged. ^hgFCfOtC it is commanded the fheriff, that he Summons 
 fummon by good fummoners four lawful knights of his county, f .*j*" 
 girt with fwords, that they be here on the oclaves of faint 
 Hilary next coming, to make election of the affiie aforefaid. 
 The fame day is given as well to the faid William Kent as to 
 the faid Richard Allen, here, SsV. At which day here come 
 as well the faid William Kent as the faid Richard Allen; and 
 the fheriff, to wit, fir Adam Alftone knight now returns, that 
 he had caufed to be fummoned Charles Stephens, Randal Whe- 
 ler, Toby Cox, and T/honias Muoday, four lawful knights of 
 
 his
 
 vi APPENDIX, 
 
 N. I. his county, girt with Avords, by John Doe and Richard Roe 
 \ -v his bailiffs, to be here at the faid o&aves 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 
 Efefh'on of lawful knights of the county aforefaid, girt with fwords, being 
 tfaerecogni- called, in their proper perfons come, and, being fworn, upon 
 their oath in the prefence of the parties aforefaid chofe of 
 themielves 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, John 
 Richardfon, Alexander Moore, Peter Payne, Robert Quin, Ar- 
 chibald Stuart, Bartholomew Norton, and Henry Davis, efquires, 
 John Porter, Chriftopher Ball, Benjamin Robinfon, Lewis Long, 
 William Kirby, gentlemen, good and lawful men of the county 
 aforefaid, who neither are of kin to the faid William Kent nor 
 to the faid Richard Allen, to make recognitio'n of the grand 
 Fcmu-e -facias, affife aforefaid. I'CJjcrcfotC it is commanded the fheriff, that he 
 caufe them to come here from the day of eafter in fifteen days, 
 to make the recognition aforefaid. The fame day is there given 
 to the parties aforefaid. At which day here come as well the 
 faid William Kent as the faid Richard Allen, by their attorneys 
 aforefaid, and the recognitors of the affife whereof mention is 
 Recognitors above made being called come, and certain of them, to wit, 
 Charles Stephens, Randal Wheler, Toby Cox, Thomas Mun- 
 day, Charles Price, knights, Daniel Prince, Roger Lucas, Wil- 
 liam Day, James Harris, Peter Payne, Robert Quin, Henry 
 Davis, John Porter, Chriftopher Ball, Lewis Long, and William 
 for Kirby, being elefted, tried, and fworn, upon their oath fay, 
 t h at the faid William Kent hath more right to have the tene- 
 ments aforefaid with the appurtenances to him and his heirs, as 
 he demandeth the fame, than the faid Richard Allen to hold the 
 fame as he now holdeth them, according as the faid William 
 Kent by his writ aforefaid hath fuppofed. ^foercforc it t8 
 COnfTfccrcD , that the faid William Kent do recover his feifin 
 againit 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, &c. 
 
 N*. II.
 
 APPENDIX. vii 
 
 NMI. 
 
 N . II. 
 
 Proceedings on an Attion of Zrejpafi in EJECTMENT, 
 by Original, in the King'j Bench. 
 
 . l. The Orig inal tt r rit. 
 
 /tK C flD 1R > 45 the fecond, by the grace of God of Great Si fectrlt tt 
 ^ Britain, France, and Ireland king, defender of the faith, faunim. 
 and fo forth ; to the Iheriff of Berkfhire, greeting. 3Bf Richard 
 Smith ihall give you fecurity of profecuting his claim, then put 
 by gage and fafe pledges William Stiles, late of Newbury, 
 gentleman, fo that he be before us on the morrow of All-Souls, 
 wherefoever we fhall then be in England, to mew wherefore 
 with force and arms he entered into one mefluage, with the 
 appurtenances, in Sutton, which John Rogers, efquire, hath 
 demifed to the aforefaid Richard, for a term which is not yet 
 expired, and ejedled him from his faid farm, and other enor- 
 mities to him did, to the great damage of the faid Richard, 
 and againft our peace. And have you there the names of the 
 pledges, and this writ. U3(tnef0 ourfelf at Weftminfter, the 
 twelfth day of Oclober, in the twenty ninth year of our reign. 
 
 Pledges of C John Doe. ^" Den ' 
 
 ~ 
 
 profecution, | Richard Roe. l ~ \ Richard Fen. Return. 
 
 tached by pledges, l 
 
 . 2. Copy nf the Declaration againft the cafual Ejeftor', iuho gi<vet 
 Notice thereupon to the Tenant in Pojftjfion. 
 
 Michaelmas, the 2gth of king George the fecond. 
 
 Berks, )fl^t!Iiatlt Stiles, late of Newbury in the faid Declaration 
 to wit, 5 county, gentleman, was attached to anfwer Ri- 
 chard Smith, of a plea, wherefore with force and arms he entered 
 into one meffuage, with the appurtenances, in Sutton in the 
 county aforefaid, which John Rogers efquire demifed to the faid 
 Richard Smith for a term which is not yet expired, and ejefted 
 him from his faid 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 Richard by Ro- 
 bert
 
 viil A P P E N D I X., 
 
 N. II. bert Martin his attorney complains, that whereas the faid John 
 w-v~o Rogers en the firft 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 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 laft paft, to the end 
 and term of five years from thence next following and fully to 
 be complete and ended, by virtue of which demife the faid 
 Richard entered into the faid tenement, with the appurtenances, 
 and was thereof pofTefied ; and, the faid Richard being fo pof- 
 fefled thereof, the faid William afterwards, that is to fay, on 
 the faid firft day of October 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 
 ejected the faid Richaad out of his faid farm, and other wrongs 
 to him did, to the great damage of the faid Richard, and 
 againft the peace of the faid lord the king ; whereby the faid 
 Richard faith, that he is injured and damaged to the value of 
 twenty pounds. And thereupon he brings fuit, &c. 
 
 Martin, for the plaintiff. > Pledges of C John Doe. 
 Peters, for the defendant. J profecution. ( Richard Roe. 
 
 Mr. George Saunders, 
 
 Notice J am i nr rmed that you are in pofleffion of, or claim title to, 
 
 the premifes mentioned in this declaration of ejectment, or to 
 fome part thereof; and I, being fued in this action as a cafual 
 ejector, and having no claim or title to the fame, do advife you 
 to appear next Hilary term in his majefty's court of king's 
 bench at Weftminfter, by fome attorney of that court, and then 
 and there, by a rule to be made of the fame court, to caufe 
 yourfelf to be made defendant in my Head ; otherwife I mall 
 fufFer judgment to be entered againft me, and you will be 
 turned out of pofTcffion. 
 
 Your loving friend, 
 'SJamtary, 1756. 
 
 William Stiles.
 
 APPENDIX. ix 
 
 N. IL 
 
 .3. tfbe Rule of Court t Wv-W 
 
 Hilary Term, in the fivenfy ninth Tear of King GEORGE the 
 fecond* 
 
 Berks, 1 J,t ifi OtlimD by the court, by the aflent of both Smith 
 to wit. 3 parties, and their attorneys, that George Saunders, *Sfi n( l 
 
 centleman, mav be made defendant, in the place of the now Stiles *Jr 
 
 \~...i ., j n .I . j- onemefluage 
 
 defendant William Stiles, and fliall immediately appear to the w ; t h t h e ap- 
 
 plaintiff's action, and mail receive a declaration in a plea of purtenance* 
 
 trefpafs and ejectment of the tenements in qucftion, and ihall in Sutton, 
 
 immediately plead thereto, not guilty : and, upon the trial of n -,* e f 
 
 the iffue, mail confefs leafe, entry, and oufter, and infift upon Rogers. 
 
 his title only. And if, upon trial of the iffue, the faid George 
 
 do not confefs leafe, entry, and oufter, and by reafon thereof 
 
 the plaintiff cannot profecute his writ, then the taxation of cofts 
 
 upon fuch nonprof. mall ceafe, and the faid George mail pay 
 
 fuch cofts to the plaintiff, as by the court of our lord the king 
 
 here mall be taxed and adjudged for fuch his default in nonper- 
 
 formance of this rule; and judgment mall be entered againft 
 
 the faid William Stiles, now the cafual ejector, by default. And 
 
 it is further ordered, that, if upon the trial of the faid ifTue a 
 
 verdict mail be given for the defendant, or if the plaintiff mail 
 
 not profecute his writ, upon any other caufe, than for the not 
 
 confeffing leafe, entry, and oufter as aforefaid, then the leflbr 
 
 of the plaintiff fliall pay cofts, if the plaintiff himfelf doth not 
 
 pay them. 
 
 By the Court. 
 Martin, for the plaintiff. 
 Newman, for the defendant. 
 
 .4. The Record. 
 
 fMeaS before the lord the king at Weftminfter, of the term of 
 faint Hilary, in the twenty ninth year of the reign of the lord 
 GEORGE the fecond by the grace of God of Great Britain, 
 Fiance, and Ireland king, defender of the faith, &c. 
 
 Berks, ) J>OtgC Saunders, late of Sutton in the county afore- 
 
 to wit. 3 faid, gentleman, was attached to anfwer Richard 
 
 Smith, of a plea, wherefore with force and arms he entered 
 
 into one meiTuage, with the appurtenances, in Sutton, which 
 
 John Rogers, eiquire, hath demifed to the faid Richard for a 
 
 term which is not yet expired, and ejected him from his faid 
 
 farm, and other wrongs to him did, to the great damage of the 
 
 faid Richard, and againft the peace of the lord the king that 
 
 VOL. III. F f now
 
 x APPENDIX. 
 
 N<\ IL now is. 3Int) Whereupon the faid Richard, by Robert Martin 
 VM^V**** his attorney complains, that whereas the faid John Rogers on 
 Declaration, the firft day of Oftober in the twenty ninth year of the reign of 
 ur count. the lord the king that now is, at Sutton aforefaid, had demifed 
 to the fame Richard the tenement aforefaid, with the appurte- 
 nances, to have and to hold the faid tenement, with the appur- 
 tenances, to the faid Richard and his afligns, from the feaft of 
 faint Michael the archangel then laft paft, 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 poffeffed there- 
 of, the faid George afterwards, that is to fay, on the 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 Ro- 
 gers demifed to the faid Richard in form aforefaid for the terra 
 aforefaid which is not yet expired, and ejected the faid Richard 
 out of his faid farm, and other wrongs to him did, to the great 
 damage of the faid Richard, and againft the peace of the faid 
 lord the king; whereby the faid Richard faith that he is injured 
 and endamaged to the value of twenty pounds : and thereupon 
 Defence. he brings fuit, [and good proof. ] Hn0 the aforefaid George 
 Saunders, by Charles Newman his attorney, comes and defends 
 the force and injury, when [and where it fhall behove him ;] 
 Plea, not and faith that he is in no wife guilty of the trefpafs and eject - 
 guilty* ment aforefa'd, as the faid Richard above complains againft him ; 
 Iffue. and thereof he puts himfelf upon the country : and the faid Ri- 
 
 Vtmrt chard doth likewife the fame; 'EfyCKfoiC let a jury come there- 
 awarded, upon before the lord the king, on the octave of the purification 
 of theblefled virgin Mary, wherefoever he fha!l then be in Eng- 
 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 trerpafs and ejectment aforefaid :] becaufe as well [the 
 faid George, as the faid Richard, between whom the difference 
 is, have put themfelves on the faid jury.] The fame day is there 
 Refpite, for given to the parties aforefaid. 3ifttVtt)3ft)d the procefs therein, 
 Default of being continued between the faid parties of the plea aforefaid 
 by the jury, is put between them in refpite, before the lord the 
 king, until the day of Eafter in fifteen days, wherefoever the faid 
 , lord the king ihall then be in England ; unlefs the juftices of 
 the lord the king afligned to take affifes 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 Weitminfter, come the parties afore- 
 faid by their attorney* aforefaid; aad the aforefaid julHces of 
 
 affife,
 
 APPENDIX. xi 
 
 eflife, before whom [the jury aforefaid came,] fent here their N. II. 
 record before them had in thefe words, to wit : 3HftCnvar$0> *-^y~*J 
 
 at the day and place within contained, before Heneage Legge, Poftea. 
 efquire, one of the barons of the exchequer of the lord the king, 
 and fir John Eardley Wilmot, knight, one of the juftices of the 
 faid lord the king, affigned to hold pleas before the king him- 
 felf, juftices of the faid lord the king, affigned to take aflifes in 
 the county of Berks by the form of the ftatute [in that cafe pro- 
 vided,) come as well the within named Richard Smith, as the 
 within written George Saunders, by their attorneys within con- 
 tained ; and the jurors of the jury whereof mention is within 
 jnade being called, certain of them, to wit, Charles Holloway, 
 John Hooke, Peter Graham, Henry Cox, William Brown, and 
 Francis Oakley, come, and are fworn upon that jury : and be- 
 caufe the reft of the jurors of the fame jury did not appear, 
 therefore others of the by-ftanders being chofen by the meriff, Tain tie tit- 
 at the requeft of the faid Richard Smith, and by the command cumjiantibust 
 of the juftices aforefai i, are appointed anew, whofe names are 
 affixed to the panel within written, according to the form of the 
 ftatute in fuch cafe made and provided; which faid jurors fb 
 appointed anew, to wit, Roger Bacon, Thomas Small, Charles 
 Pye, Edward Hawkins, Samuel Roberts, and Daniel Parker, 
 being likewife called, come; and together with the other ju- 
 rors aforefaid before impanelled and fworn, being elected, tried, 
 and fworn, to fpeak the truth of the matter within contained, 
 upon their oath fay, that the aforefaid George Saunders is guilty Verdifl for 
 of the trefpafs and ejectment within-written, in manner and form ^e plaiatiff. 
 as the aforefaid Richard Smith within complains againft him ; 
 and aflefs the damages of the faid Richard Smith, on occafion 
 of that trefpafs and ejectment, 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 millings. 
 UDfyereupOB the faid Richard Smith, by his attorney aforefaid, 
 prayeth judgment againft the faid George Saunders, in and up- 
 on the verdict aforefaid by the jurors aforefaid given in the form 
 aforefaid : and the faid George Saunders, by his attorney afore- Motion la 
 faid, faith that the court here ought not to proceed to give judg- * rrefi: of 
 ment upon the laid verdict, and prayeth that judgment againft J ud6ment * 
 him the faid George Saunders, in and upon the verdict aforefaid 
 by the jurors aforefaid given in the form aforefaid, may be 
 ftayed, by reafon that the faid verdict is inefficient and errone- 
 ous, and that the fame verdict may bequafhed, and that the iffue 
 aforefaid may be tried anew by other jurors to be afrefh impa- 
 nelled. And, becaufe the court of the lord the king here is not Continu* 
 yet advifed of giving their judgment of and upon the premifes, ance - 
 therefore day thereof is given as well to the faid Richard Smith 
 as the faid George Saunders, before the lord the king, until the 
 morrow of the Afcenfiou of our lord, wherefoever the faid lord 
 
 Ff 2 the
 
 N. II. 
 
 Opinion of 
 the court. 
 
 Judgment, 
 for the 
 plaintiff. 
 
 Cofts. 
 
 Caplatur pro 
 fine. 
 Writ of 
 pofleffion, 
 
 and return. 
 
 xii APPENDIX. 
 
 the king fliall 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 fully underftood, and all and fingular the premifes having 
 been examined, and mature deliberation being had thereupon, 
 for that it feems to the court of the lord the king now here that 
 the verdift aforeiaid is in no wife infufficient or erroneous, and 
 that the fame ought not to be quaftied, and that no new trial 
 ought to be had of the iflue aforefaid, CijCteforC it iS COttfftf 
 Devet}, that the faid Richard do recover againft the faid George 
 his term yet to come, of and in the faid tenements, with the ap- 
 purtenances, and the faid damages afleffed by the faid jury. in. 
 form aforefaid, and alfo twenty feven pounds fix millings and 
 eight pence for his cofts and charges aforefaid, by the court of 
 the lord the king here awarded to the faid Richard, with his 
 afTent, by way of increafe ; which faid damages in the whole 
 amount to twenty nine pounds, feven (hillings and eight pence. 
 And let the faid George be taken, [until he maketh fine to the 
 lord the king.] StttJ IjetCUpOtl the faid Richard by his attorney 
 aforefaid prayeth a writ of the lord the king, to be direfted to 
 the fheriff of the county aforefaid, to caufe him to have poffef- 
 fion of his term aforefaid yet to come, of and in the tenements 
 aforefaid, with the appurtenances : and it is granted unto him, 
 returnable before the lord the king on the morrow of the holy 
 Trinity, wherefoever he fhall then be in England. At which 
 day before the lord the king, at Weftminfter, cometh the faid 
 Richard by his attorney aforefaid ; and the fheriff, that is to fay, 
 fir Thomas Reeve, knight, now fendeth, that he by virtue of 
 the writ aforefaid to him directed, on the ninth day of June laft 
 paft, did caufe the faid Richard to have his pofieflion of his term 
 aforefaid yet to come, of and in the tenements aforefaid, with 
 the appurtenances, as he was commanded. 
 
 NMII.
 
 APPENDIX. xiii 
 
 N. IIL 
 
 N. IIT. 
 
 Proceedings on an Aftion of DEBT in the Court of 
 common Pleas , removed into tbe King's Bench by 
 Writ of ERROR. 
 
 . I . Original' 
 
 /JK C 3D 1& d5 <C? the fecond by the grace of God of Great Praedpe. 
 ^^ Britain, France, and Ireland king, defender of the faith, 
 and fo forth; to the fheriff of Oxfordfhire, greeting. Comtttant) 
 Charles Long, late of Burford, gentleman, that juftly and with- 
 out delay he render to William Burton two hundred pounds, 
 which he owes him and unjuftly detains, as he faith. And un- 
 lefs he fhall fo do, and if the faid William fhall make you fe- 
 cure of profecuting his claim, then fummcn by good fummon- 
 ers the aforefaid Charles, that he be before our juftices at 
 Weftminfter, on the octave of faint Hilary, to fhew wherefore he 
 hath not done it. And have you there then the fummoners, and 
 this writ. JGHttuf0 ourfelf at Weftminfter, the twenty fourth 
 Day of December, in the twenty eighth year of our reign. 
 
 Pledges C T i -p. Summonersofthe r n ,, 
 
 c & r I John Doe. . , . I Roger Morns, sheriff's 
 
 of profe-<i- i. j r> within-named < TT T u r 
 
 } Richard Roe. , , , ) Henry Tohnfon, return, 
 
 cution. (. Charles Long. (. ' J 
 
 .2. Procefs. 
 
 (15C)1R(I5<IB the fecond by the graceof God of Great Britain, Attach - 
 France, and Ireland king, defender of the faith, and fo forth ; merit. 
 to the fheriffof Oxfordfhire, greeting, f^ut by gage and fafe Pcne. 
 pledges Charles Long, late of Burford, gentleman, that he be be- 
 fore our juftices at Weftminfter on the octave of the purification 
 of the blefTed Mary, to anfwer to William Burton of a plea, 
 that he render to him two hundred pounds, which he owes him 
 and unjuftly detains, as he faith j and to fhew wherefore he was 
 not before our Juftices at Weftminfter on the octave of faint 
 Hilary, as he was fummoned. And have there then the names 
 of the pledges and this writ. UPttnefS fir John Willes, knight, 
 at Weftminfter, the twenty third day of January in the twenty 
 eighth year of our reign. 
 
 The within named Charles Long is ( Edward Leigh. Sheriff's 
 
 | Robert Tanner, return.
 
 xiv APPENDIX. 
 
 NMII. 
 
 < v f2> < *D IS d5 ( the fecond by the grace of God of Great 
 J)iflringds. Britain, France, and Ireland king, defender of the Faith, and 
 fo forth ; to the fheriff of Oxford/hire, greeting, ffite com- 
 mand you that you diftrein Charles Long, late of Burford, gen- 
 tleman, 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 mall receive from us another command there- 
 upon ; and that you anfwer to us of the iiTues of the fame ; and 
 that you have his body before our juftices at Weflminfter from 
 the day of Eafter in fifteen days, to anfwer to William Burton 
 of a plea, that, he render to him two hundred pounds which he 
 owes him and unjuftly detains as he faith, and to hear his 
 judgment of his many defaults. HTUtHCf0 fir John Wilies, 
 knight, at Weftminfter, the twelfth day of February' in the 
 twenty eighth year of our reign. 
 
 Sheriff's The within-named Charles Long hath nothing in my baili- 
 wick, whereby he may be diftreined. 
 
 CapiasaJref- <E> flD 1R 45 <(5 the fecond, by the grace of God of Great 
 fon&M/um. Britain, France, and Ireland king, defender of the faith, and 
 fo forth ; to the fheriff of Oxfordfhire, greeting. UBc command 
 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 Eafter in five weeks, to anfwer to William Bar- 
 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 you have returned to our juftices at Weftminfter, 
 that the faid Charles hath nothing in your bailiwick, whereby 
 he may be diftreined. And have you there then this writ. 3t9tt= 
 0f0 fir John Wilies, knight, at Weftminfter, the fixteenth day 
 of April, in the twenty eighth year of our reign. 
 
 Sheriff's re- The within-named Charles Long is not found in my bailiwick. 
 
 turn. Non 
 
 the fecond by the grace of God of Great 
 tafias. Britain, France, and Ireland king, defender of the faith, and 
 fo forth ; to the fheriff of Berkfhire, greeting. U00 command 
 you, that you take Charles Long, late of Burford, gentleman, 
 if he may be found in your bailiwick, and him fately 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 jultices at Wdhainiler, at a certain day now paft, that the 
 
 aforefaid
 
 APPENDIX. xv 
 
 aforefaid Charles is not found in his bailiwick ; and thereupon N'. in. 
 it is teftified in our faid court, that the aforefaid Charles lurks, 
 wanders, and runs about in your county. And have you there 
 then this writ. H9itRCf0 fir John Willes, knight atWeftminfter, 
 the feventh day of May, in the twenty eighth year of our reign. 
 
 By virtue of this writ to me directed, I have taken the body Sheriff *i 
 of the within-named Charles Long ; which I have ready at the return. 
 day and place within contained, according as by this writ it is Ce f Cor P u " 
 commanded me. 
 
 " Or, upon the Return o/"Non eft inventus upon the firft Ca- 
 " pias, the Plaintiff may fue out an Alias and a Pluries, 
 " and thence proceed to Outlawry ; thus : 
 
 " <!!>< > IS (15 <C the fecond by the grace of God of Great " AHas f a- 
 " Britain, France, and Ireland king, defender of the faith, and fo "/" 
 " forth ; to the iheriff of Oxfordfhire, greeting. |Xe command 
 ** you as formerly we commanded you, that you take Charles 
 " Long, late of Burford, gentleman, if he may be found in 
 ' your bailiwick, and him fafely keep, fo that you may have 
 ' his body before our juftices at Weftminfter, on the morrow 
 ' of the holy Trinity, to anfwer to William Burton, gentleman, 
 
 * of a plea, that he render to him two hundred pounds, which 
 
 * he owes him and unjuftly detains, as he faith. And have 
 
 * you there then this writ. iGHtttefS 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 
 
 (t w \ c ]r " return. 
 
 "Noneft 
 
 .* 
 
 the fecond by the grace of God of Great "Pluriesca- 
 " Britain, France, and Ireland king, defender of the faith, and "fiat. 
 ' fo forth ; to the fherifF of Oxfordfhire, greeting, $g com- 
 " mand you, as we have more than once commanded you, that 
 " you take Charles Long, late of Burford, gentleman, if h6 
 " 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 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. 
 Itlhtncfe fir John Willes, knight, at Weftminfter, the thir- 
 " tieth day of May, in the twenty eighth year of our reign. 
 
 ' The within-named Charles Long is not found in my baili- " 
 " Wick.
 
 XVI 
 
 APPENDIX. 
 
 NM1I. 
 
 v^^o " <25<ZE> 18 < < the fecond by the grace of God of Great 
 Exigifa- " Britain, France, and Ireland king, defender of the faith, and 
 " eiat. < fo forth ; to the fheriff of Oxfordfhire, greeting. U9c com- 
 " mand you, that you caufe Charles Long, late of Burford, 
 " gentleman, to be required from county court to county court, 
 " until according to the law and cuftom of our realm of F.ng- 
 " 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 atWeftminfter, 
 e on the morrow of All-Souls, to anfwer to William Burton, 
 *' gentleman, of a plea, that he render to him two hundred 
 *' pounds, which he owes him and unjuftly detains, as he faith. 
 " And whereupon you have returned to our juftices at Weft- 
 " minfter, from the day of the holy Trinity in three weeks, that 
 " he is not found in your bailiwick. And have you there then 
 " this writ. DPitncfg fir John Willes, knight, at Weftminfter, 
 " the eighteenth day of June, in the twenty eighth year of our 
 " reign. 
 
 Sheriff's 
 return. 
 
 Prlmo 
 
 Sceundo 
 cxatfus: 
 
 " By virtue of this writ to me directed, 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 within 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 afore- 
 faid, 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 October 
 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 cuf- 
 tom of the kingdom of England, is outlawed. 
 
 " Tertio 
 " Quarto 
 
 <' exaclus, 
 ' Idea utla- 
 
 " Writ of " <f < D 1R <> < the fecond by the grate of God of Great 
 ','( p lama " " Britain, France, and Ireland king, defender of the faith, and 
 " fo forth; to the fherlff of Oxfordfhire, greeting, JtDJjCITCuS 
 " by cur writ we have lately commanded you that you fliould 
 " caufe Charles Long, late of Eurford, gentleman, to be re- 
 " quired from county court to county court, until according to 
 
 the
 
 APPENDIX. xvii 
 
 " the law and cuftom of our realm of England he mould be N. III. 
 
 " outlawed, if he did not appear : and if he did appear, then v. v ^ 
 
 " that you ftiould take him and caufe him to be fafely kept, fo 
 
 " that you might have his body before our juftices at Weftmin- 
 
 c fter, on the morrow of All-Souls, to anfwer to William Bur- 
 
 ' ton, gentleman, of a plea, that he render to him two hun- 
 
 ' dred pounds, which he owes him and unjuftly detains, as he 
 
 ' faith : ^ijCtCfotC we command you, by virtue of the ftatute 
 
 ' in the thirty firft year of the lady Elizabeth 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 fhall be 
 
 ' made at or near the moft ufual door of the church of the pa- 
 
 * rim wherein he inhabits) that he render himfelf unto you ; fo 
 ' that you may have his body before our juftices at Weftmin- 
 ' fter at the day aforefaid, to anfwer the faid William Burton 
 ' of the plea aforefaid. And have you there then this writ. 
 ' H9itnef0 fir John Willes, knight, at Weftminfter, the 
 ' eighteenth day of June, in the twenty eighth year of our 
 
 * reign. 
 
 " By virtue of this writ to me directed, at my county court held " Sheriff'* 
 " at Oxford in the county of Oxford, on Thurfday the twenty " return - 
 " fixth day of June in the twenty ninth year of the reign of ,$/*.- 
 " the lord the king within written, I caufed to be proclaimed 
 " the firft time; and at the general quarter feffions of the peace, 
 " held at Oxford aforefaid on Tuefday the fifteenth day of July 
 " in the year aforefaid, I caued 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 
 " leaft before the within-named Charles Long was required the 
 " fifth time, I caufed to be proclaimed the third time, that the 
 " laid Charles Long mould render himfelf unto me, as within 
 " it is commanded me. 
 
 " <2> 45 SD ]R <> C the fecond by the grace of God of Great " Capias ut- 
 " Britain, France, and Ireland king, defender of the faith, and " bgatu*. 
 " fo forth ; to the iheriff of Berkihirc, greeting. U9e com- 
 " mand you, that you omit not by reafon of any liberty of your 
 " county, but that you take Charles Long, late of Burford in 
 *' the county of Oxford, gentleman, (being outlawed in the 
 " faid county of Oxford, on Thurfday, the fixteenth day of 
 " October laft paft, at the fuit of William Burton, gentleman, 
 " of a plea of debt, as the fheriff of Oxford/hire atorefaid re- 
 *' turned to our juftices at We.ftminfter on the morrow of All- 
 " Souls then next enfuing) if the faid Charles Long may be 
 *' found in your bailiwick ; and him fafely keep, fo that you 
 
 " may
 
 XV111 
 
 APPENDIX. 
 
 N. III. " may have his body before our juftices at Weftminfter from the 
 
 Wv-^ " day of faint Martin in fifteen days, to do and receive what 
 
 " our court fliallconfider concerning him in this behalf. HHitntffl 
 
 " fir John Willes, knight, at Weftminfter, the fixth day of No- 
 
 '* vember in the twenty ninth year of our reign. 
 
 < Sheriff's " By virtue of this writ to me directed, I have taken the bo- 
 
 *< return; " dy of the within-named Charles Long; which I have ready 
 
 " f Ce P l crjr ~ " at the day and place within-contained, according as by this 
 
 t Mt ti wr j t jj. j s commanded me. 
 
 "Bill of 
 Middlefex 
 " for tref- 
 
 ** ttc ttlam 
 *' in debt. 
 
 ' Sheriff's 
 " return; 
 "Nontftin- 
 " trentui, 
 " Latitatt 
 
 * A etiam. 
 
 " $. 3. * Bill of Middlefex, and Latitat thereupon, in the Court 
 
 " of King's Bench. 
 
 " Middlefex, 1 " fce Sheriff is commanded that he take 
 
 " to wit. J " Charles Long, late of Burford in the county 
 
 " of Oxford, if he may be found in his bailiwick, and him fafely 
 
 "' keep, fo that he may have his body before the lord the king 
 
 4 at Weftminfter, on Wednefday next after fifteen days of Rafter, 
 
 ' to anfwer William Burton, gentleman, of a plea of trefpafs ; 
 
 ' [atlfc ttlfo to a bill of the faid William againft the aforefaid 
 
 * Charles, for two hundred pounds of debt, according to the 
 ' cuftom of the court of the faid lord the king, before the king 
 
 himfelf to be exhibited;] and that he have there then this 
 precept. 
 
 " The within-named Charles Long is not found in my baili- 
 ' wick. 
 
 " (0 C > 18 & <& the fecond by the grace of God of Great 
 
 * Britain, France, and Ireland king, defender of the faith, and 
 ' fo forth ; to the fherifF of Berkfhire, greeting. iL^ercaS 
 
 * we lately commanded our meriff of Middlefex that he fhould 
 ' 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 he might be before us at Weftminfter, at a certain day 
 ' now paft, to anfwer unto William Burton, gentleman, of a 
 ' plea of trefpafs ; [atlD alfo to a bill of the faid William 
 ' againft the aforefaid Charles, for two hundred pounds of 
 ' debt, according to the cuftom of our court, before us to be 
 ' exhibited ;] and our faid fherifF of Middlefex at that day re- 
 ' turned to us that the aforefaid Charles was nr-t found in his 
 
 * bailiwick ; whereupon on the behalf of the aforefaid William 
 ' in our court before us it is fufficiently attefted, that the afore- 
 ' faid Charles lurks and runs about in your county : iCljerefOTS 
 ' we command you, that you take him, if he may be found in 
 
 * Note, that . 3, and . 4, are the ufual method of procefs, to compel an 
 appearance, in the courts of king's bench, and exchequer ; in which the practice of 
 thofe courts does principally differ from that of the court of cc/mtKcn pleas : the 
 fubfeqneut ftages of proceeding being nearly alike ia them all. 
 
 " your
 
 APPENDIX. xix 
 
 " your bailiwick, and him fafely keep, fo that you may hare his N. III. 
 " body before us at Weftminfter on Tuefday next after five v*-y*w 
 " weeks of Eafter, to anfwer to the aforefaid William of the 
 " plea [and bill] aforefaid : and have you there then this writ. 
 " V&itntte fir Dudley Ryder, knight, at Weftminfter, the 
 " eighteenth day of April, in the twenty eighth year of our reign. 
 
 '* By virtue of this writ to me directed, I have taken the body Sheriff'* 
 " of the within-named Charles Long ; which I have ready at " return ; 
 " the day and place within-contained, according as by this writ <t ^" cor " 
 " it is commanded me. 
 
 " . 4. Writ of Quo minus in the Exchequer. 
 
 " <fl? <> 1R <2> t the fecond by the Grace of God of Great 
 " Britain, France, and Ireland king, defender of the faith, and 
 fo forth ; to the ftierifT of Berkfhire, greeting. J command 
 you, that you omit not by reafon of any liberty of your county, 
 but that you enter the fame, and take Charles Long, late of 
 Burford in the county of Oxford, Gentleman, wherefoever 
 he mail be found in your bailiwick, and him fafely keep, fb 
 that you may have his body before the barons of our exche- 
 quer at Weftminfter, 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 reafon- 
 ably mew that the fame he ought to render : and have you 
 there this writ. ft&ittief0 fir Thomas Parker, knight, 
 at Weftminfter, the fixth day of May, in the twenty eighth 
 year of our reign. 
 
 " By virtue of this writ to me directed, I have taken the bo- Sheriff' 
 " dy of the within-named Charles Long; which I have ready "return; 
 *' before the barons within- written, according as within it is com- " Ce f cor " 
 " manded me." '*" 
 
 .5. Special Bail; on the Arrejl of the Defendant, furfuant to 
 the Teftatum Capias, in page xiv. 
 
 &ttOS all 3$en by thefe prefents, that we Charles Long of Bail bond, t 
 Burford in the county of Oxford, gentleman, Peter Hamond of the Sheriff. 
 Bix in the faid county, yeoman, and Edward Thomlinfon of 
 Woodftock in the faid county, innholder, are held and firmly 
 bound to Chriftopher Jones, efquire, fherifF of the county of 
 Berks, in four hundred pounds of lawful money of Great Bri- 
 tain, to be paid to the faid fherifF, or his certain attorney, exe- 
 cutors, adminiftrators , or afiigns ; for which payment well and 
 truly to be ma,de, we bind ourfelves and each of us by himfelf 
 
 for
 
 xx APPENDIX. 
 
 N. III. ff the whole and in grofs, our and every of our heirs, execu- 
 v v-*-' tor', and adminiftrators, firmly by thefe prefents, fealed with 
 our feals. Dated the fifteenth day of May in the twenty eighth 
 year of the reign of our fovereign lord George the fecond by the 
 Grace of God king of Great Britain, France, and Ireland, de- 
 fender of the faith, and fo forth, and in the year of our Lord 
 one thoufand, feven hundred, and fifty five. 
 
 Ctye Condition of this obligation is fuch, that if the above- 
 bounden Charles Long do appear before the juftices of our fo- 
 vereign lord the king at Weftminfter, on the morrow of the 
 holy Trinity, to anfwer William Burton, gentleman, of a plea 
 of debt of two hundred pounds, then this obligation mall be 
 void and of none effect, or elfe mall be and remain in full force 
 and virtue. 
 
 Sealed, and delivered, being Charles Long. (L. S.) 
 firft duly ftamped, in the Peter Hamond. (L. S.) 
 prefence of Edward Thomlinfon. (L.S.) 
 
 Henry Shaw. 
 
 Timothy Griffith. 
 
 Recogni- fPott Charles Long do acknowlege to owe unto the plaintiff 
 
 zanceofbail, f our h un{ j re d pounds, and you John Rofe and Peter Hamond do 
 
 comrmSi- &veral\y acknowlege to owe unto the fame perfon the lum of 
 
 oner. two hundred pounds apiece, to be levied upon your feveral goods 
 
 and chattels, lands and tenements, opotl COtltUtiOtl that, if the 
 
 defendant be condemned in this action, he Ihall pay the con- 
 
 demnation, or render himfelf a prifoner in the Fleet for the 
 
 fame ; and, if he fail fo to do, you John Rofe and Peter Ha- 
 
 mond do uadertake to do it for him. 
 
 Trinity Term, 28 GEO. II. 
 
 Bail piece. Berks, ? iDtt a Tejlatum Capias againft Charles Long, late of 
 to wit, $ Burford in the county of Oxford, gentleman, re- 
 turnable on the morrow of the holy Trinity, at the fuit of Wil- 
 liam Burton, of a plea of debt of two hundred pounds; 
 
 <Clje bail are, John Rofe, of Wjtney in the county of Ox- 
 ford, efquire. Peter Hamond, of Bix in the faid county, 
 yeoman. 
 
 Richard Price, attorney 7 
 for the defendant. J 
 
 The party himfelf in ^400. 
 Each of the bail in jzco. 
 Taken and acknowleged the twenty eighth 
 day of May, in the year of our Lord one 
 thoufand, feven hundred, and fifty five, de 
 bsne eje, before me, 
 
 Robert Grove, 
 one of the cominiflioners. . 6.
 
 APPENDIX. xxi 
 
 N. in. 
 
 .6. The Record, as re moved by Writ of ERROR. 
 
 31 OtU the king hath given in charge to his truity and writ of 
 beloved fir John Willes, knight, his writ clofed in thefe words : error. 
 <Ej<>lRt2><Z the fecond by the grace of God of Great Britain, 
 France, and Ireland king, defender of the faith, and fo forth ; 
 to our trufty and beloved fir John Willes, knight, greeting. 3I53 
 Canfe in the record, and procefs, and alfo in the giving of judg- 
 ment, 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 
 in the county of Oxford, gentleman, of a certain debt of two 
 hundred pounds, which the faid William demands of the faid 
 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, ihould be 
 corrected in due manner, and that full and fpeedy juftice ihould 
 be done to the parties aforefaid in this behalf, do command you, 
 that, if judgment thereof be given, then un,der your feal you 
 do diftindly and openly fend the record and procefs of the plaint 
 aforefaid, with all things concerning them, and this writ; fo 
 that we may have them from the day of Eafter in fifteen days, 
 wherefoever we mall then be in England : that, the record and 
 procefs aforefaid being infpedted, we may caufe to be done 
 thereupon, for correcting that error, what of right and accord- 
 ing to the law and cuftom of our realm of England ought to be 
 done. UBftnefS ourfelf at Weftminfter, the twelfth day of Fe- 
 bruary, in the twenty ninth year of our reign. 
 
 tCCOtf) and procefs, whereof in the faid writ mention Chief iuf- 
 above is made, follow in theie words, to wit : tke's return. 
 
 at Weftminfter before fir John Willes, 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, de-fender 
 of the faith, &c. 
 
 Oxon, ~l CfyatlcS Long, late of Burford in the county afore- Writ. 
 
 to wit, 3 faid, gentleman, was fummoned to anfwer William 
 Burton, of Yarnton in the faid county, gentleman, of a plea 
 that he render unto him two hundred pounds, which he owes 
 him and unjuftly detains, [as he faith.] 31nD Xcljcreupon the Declaration, 
 faid William, by Thomas Gough his attorney, complains, that r c u nt, a 
 whereas on the firft day of December, in the year of our lord a bond * 
 
 one
 
 xxii APPENDIX. 
 
 '.III. one thoufand, 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 fum of 
 two hundred pounds of lawful money of Great Britain, to be 
 paid to the faid William, whenever after the faid Charles mould 
 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 Hill refufe, to render the fame ; 
 wherefore he faith that he is injured, and hath damage, to the 
 Value of ten pounds : And thereupon he brings fuit, [and good 
 fnfirt In proof.] 3ftlt> he brings here into court the writing obligatory 
 curia. aforefaid ; which teftifies the debt aforefaid 'in form aforefaid ; 
 
 Defence. the date whereof is the day and year before-mentioned. 2HnO 
 the aforefaid Charles, by Richard Price his attorney, comes and 
 defends the force and injury when [and where it mall behove 
 Oyer prayed him,] and craves oyer of the faid writing obligatory, and it is read 
 of the bond, unto fa m n n the Form aforefaid :] he likewife craves oyer of the 
 and conditi- > r i_ r i i \ \ r 
 
 v' to conc "tion * tne * aic * writing, and it is read unto him in tnefe 
 
 perform 'an words; "The condition of this obligation is fuch, that if the 
 award, " above bounden Charles Long, his heirs, executors, and ad - 
 " miniftrators, and every of them, mail and do from time to 
 *' time, and at all times hereafter, well and truly itand to, obey, 
 "obferve, fulfill, and keep, the award, arbitrament, order, 
 '* rule, judgment, final end, and determination, of David Stiles, 
 '* of Woodftock in the faid county, clerk, and Henry Bacon, 
 
 * of Woodftock aforefaid, gentleman, (arbitrators indifferently 
 ' nominated and chofen by and between the faid Charles Long 
 'and the abovenamed William Barton, to arbitrate, award, 
 'order, rule, judge, and determine, of all and all manner of 
 ' aftions, caufe or caufes of adion, fuits, plaints, debts, duties, 
 ' reckonings, accounts, con trover fie s, trefpaffes, and demands 
 ' whatfoever had, moved, or depending, or whuh. 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 mall 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 witneffes, on or before 
 'the firft day of January next enfuing the date hereof; then 
 ' this Obligation to be void and of none effect, or elfe to be 
 
 Imparlance. 
 
 and remain in full force and virtue." it&i)ici) being read and 
 
 heard, the faid Charles prays leave to imparl therein here until 
 the oclave of the holy Trinity ; and it is granted unto him. 
 
 Continu- The fame day is given to the faid William Burton here, &c. 
 
 * cc * At which day, to wit, on the o&aye of the holy Trinity, here 
 
 come as well the faid William Burton as the faid Charles Long, 
 by their attorneys afore (aid ; and hereupon the faid William 
 
 prays
 
 APPENDIX. xxlii 
 
 prays that the faid Charles may anfwer to his writ and count N. III. 
 aforefaid. 2JntJ the aforefaid Charles defends the force and in- v~-v~' 
 jury, when, &c, and faith, that the faid William ought not topjeaj 
 have or maintain his faid action againft him ; becaufe he faith, No fuch 
 that the faid David Stiles and Henry Bacon, the arbitrators be- award, 
 fore named in the faid condition, did not make any fuch award, 
 arbitrament, order, rule, judgment, final end, or determination, 
 of or in the premifes above fpecified in the faid condition, on or 
 before the firft day of January, in the condition aforefaid above- 
 mentioned, according to the form and effect 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.] 2Jnt) the aforefaid William faith, that, for any Replication $ 
 thing above alleged by the faid Charles in pleadings, he ought fettm 8 fo" 1 * 
 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 firft 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 witnefies, 
 namely, John Dew of Charlbury, in the county aforefaid, and 
 Richard Morris of Wytham, in the county of Berks, the faid 
 arbitrators undertook the charge of the award, arbitrament, or- 
 der, rule, judgment, final end, and determination aforefaid, of 
 and in the premifes 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 award, order, and adjudge, that he the faid Charles Long 
 mould forthwith pay to the faid William Burton the fum of fe- 
 venty five pounds, and that thereupon all differences between 
 them at the time of the making the faid writing obligatory 
 mould finally ceafe and determine. And the faid William fur- 
 ther faith, that although he afterwards, to wit on the fixth day 
 of 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 feven ty five 
 pounds, yet (by proteftation that the faid Charles hath not flood Prttefandt* 
 to, obeyed, obferved, fulfilled, or kept any part of the faid 
 award, which by him the faid Charles ought to have been flood 
 to, obeyed, obferved, fulfilled, and kept) for further plea therein 
 he faith, that the faid Charles the iaid feventy five pounds to 
 the faid William hath not hitherto paid : and this he is ready to 
 verify. Wherefore he prays judgment, and his debt aforefaid, 
 together with his damages occasioned by the detention of the 
 faid debt, to be adjudged unto him, &c. UttD the aforefaid Demurrer, 
 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 fufficient in 
 
 law
 
 xxiv APPENDIX. 
 
 N. III. ^ aw f r tne kid William to have or maintain his aftion aforefaid 
 *_^v^> thereupon againft him the faid Charles ; to which the faid Charles 
 hath no neceffity, neither is he obliged by the law of the land, 
 in any manner to anfwer : and this he is ready to verify. Where- 
 fore, for want of a fufficient 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- 
 ^aufes of upon againft him, &c. And the faid Charles, according to the 
 lemurrer. form of the ftatute in that cafe made and provided, mews to the 
 court here the caufes of demurrer following ; to wit, that it doth 
 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 effect of the condition afore- 
 faid ; and that the replication aforefaid is- uncertain, infufficient, 
 fohvierin and wants form. <tnD the aforefaid William faith, that the plea 
 demurrer, aforefaid by him the faid William in manner and form aforefaid 
 above in his replication pleaded, and the matter in the fame 
 contained, are good and fufficient in law for the faid William to 
 have and maintain the faid aclion 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 mall award : and becaufe the afoiefaid Charles hath 
 oot anfvvered 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, &c. 2CtlU r 
 Continu- becaufe the juftices here will advife themfelves of and upon the 
 nces. 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 
 juftices here are not yet adviied thexeof. At which day here 
 come as well the faid Charles as the faid William, by their faid 
 attorneys ; and becaufe the fayi 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 come as well the faid William Burton as the faid 
 Opinion of Charles Long, by their faid attorneys. therefore, the record 
 thecowt: a nd 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 
 it feems to the faid juftices here, that the faid plea of the faid 
 William Burton'before in his replication pleaded, and the matter 
 therein contained, are not fufficient in law, to have and main- 
 is mb\l tain the aftion of the aforefaid William againft the aforefaid 
 /' Charles ; ttymfore it (0 COnfitcreD, that the aforefaid William-
 
 APPENDIX; 
 
 take nothing by his writ aforefaid, but that he and his pledges N. III. 
 of profecuting, to wit, John Doe and Richard Roe, be in mercy v^-y-^ 
 for his falfe complaint; and that the aforefaid Charles go thereof Amerce- 
 without a day, &c. &tt& it (0 farther COtttDDEtCD, th,at the 
 aforefaid Charles do recover againft the aforefaid William eleven 
 pounds and feven (hillings, for his cofts and charges by him 
 about his defence in this behalf fuftained, adjudged by the court 
 here to the faid Charles with his confent, according to the form 
 of the ftatute in that cafe made and provided : and that the Execution. 
 aforefaid Charles may have execution thereof, &c. 
 
 , to wit, on Wednefday next after fifteen days of General 
 Eafter in this fame term, before the lord the king, at Weft- ror af. 
 minfter, comes the aforefcid William Burton, by Peter Manwa- 18ne 
 ring his attorney, and faith, that in the record and procefs afore- 
 faid, and alfo in the giving of the judgment io the plaint afore- 
 faid, it is manifeflly erred in this; to wit, that the judgment 
 aforefaid was given in form aforefaid for the faid CharlesLong 
 againft the aforefaid William Burton, where by the law of the 
 land judgment mould have been given for the faid William 
 Burton againft the faid Charles Long : and this he is ready to 
 verify. 3nD the faid William prays the writ of the faid lord Writ of Sci- 
 the king, to warn the faid Charles Long to be before the faid f actas > tc 
 lord the king, to hear the record and procefs aforefaid : and it 
 is granted unto him : by which the fheriff aforefaid is com- 
 manded that by good [and lawful men of his bailiwick] he caufe 
 the aforefaid Charles Long to know, that he be before the lord 
 the king from the day of Eafter in five weeks, wherefoever [he 
 fhall then be in England,] to hear the record and procefs afore- 
 faid, if [it fhall have happened that in the fame any error fhall 
 have intervened;] and farther [to do and receive .what the court 
 of the lord the king fhall confider in this behalf.] The fame day 
 is given to the aforefaid William Burton. 3t iJjfricfy tap before Sheriff"'? 
 the lord the king, at Weftminfter, comes the aforefaid William return > . 
 Burton, by his attorney aforefaid : and the fheriff returns, that ""/"" 
 by virtue of the writ aforefaid to him directed he had caufed 
 the faid Charles Long to know, that he fee before the lord the 
 king at the time aforefaid in the faid writ contained, by John 
 Den and Richard Fen, good, &c ; as by the fame writ was 
 commanded him : which faid Charles Long, according to the 
 warning given him in this behalf, here cometh by Thomas 
 Webb his attorney. JGtyerCttpon the faid William faith, that in Error nffign- 
 the record and procefs aforefaid, and alfo in the giving pf the e<i atjtft. 
 judgment aforefaid, it is manifeftJy erred, alleging the error afore- 
 faid by him in the form aforefaid alleged, and prays, that the ' 
 judgment aforefaid for the error aforefaid, and others, in the re- 
 cord and procefs aforefaid being, may be reverfed, annulled, 
 and entirely for nothing efteemcd, and that the faid Charles 
 VOL. 111. G o- mav
 
 XXVI 
 
 APPENDIX. 
 
 Rejoinder ; 
 Jn nullo eft 
 trratum. 
 
 Continu- 
 ance. 
 
 N. III. ma y rejoin to the errors aforefaid, and that the court of the faid; 
 i~-v-o lord the king here may proceed to the examination as well of 
 the record and process aforefaid, as of the matter aforefaid above 
 for error affigned. SltD the faid Charles faith, that neither in 
 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 
 aforefaid, as of the matters aforefaid above for error afllgned, 
 3JnD becaufe the court of the lord the king here is not yet ad- 
 vifed what judgment to give of and upon the premifes, a day 
 is thereof given to the parties aforefaid until the morrow of the 
 holy Trinity, before the lord the king, \vherefoever he fhall 
 then be in England, to hear their judgment of and upon the 
 premifes, for that the court of the lord the king here is not yet 
 advifed thereof. At which day before the lord the king, at 
 Weftminfter, come the parties aforefaid by their attorneys afore- 
 faid : thereupon, as well the record and procefs aforefaid, 
 and the judgment thereupon given, as the matters aforefaid by 
 the faid William above for error afligned, being feen, and by 
 the court of the lord the king here being fully underftood, and 
 mature deliberation being thereupon had, for that it appears to 
 the court of the Lord the king here, that in the record and pro- 
 cefs aforefaid, and alfo in the giving of the judgment aforefaid, 
 
 Judgment of it is manifeftly erred, therefore it 10 COttffCCtCtJ, that the judg- 
 
 the corxmen ment aforefaid, for the error aforefaid, and others, in the record 
 and procefs aforefaid, be reverfed, annulled, and entirely for 
 nothing efteemed ; and th?t the aforefaid William recover againft 
 the aforefaid Charles his debt aforefaid, and alfo fifty pounds 
 for his damages which he hath fuftained, as well on occafion of 
 the detention of the faid debt, as for his cofls 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 
 
 Defendant adjudged. And the faid Charles in mercy. 
 
 f- ntcd. 
 
 Opinion of 
 the court. 
 
 pica* re- 
 verfed. 
 Judgment 
 for the 
 plaintiff. 
 Cefls. 
 
 .7. Procefs of Execution. 
 
 Writ of ta- <25 C > 1R <2> the fecond by the grace of God of Great 
 fias adfatn- Britain, France, and Ireland king, defender of the faith, and fo 
 faciendum. fGrt h . to t jj e fheriff of Oxfordfhire, greeting. $t command 
 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 us in three weeks from the 
 day of the holy Trinity, whercfoever we mail 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
 
 APPENDIX. xxvii 
 
 judged in our faid court before us to the faid William Burton, N J . III. 
 for his damages which he hath fuftained, as well by occafion of > -v 1 ^ 
 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 convi&ed, as it appears to us of record: 
 and have you there then this writ. 89itncf0 fir Thomas Deni- 
 fon *, knight, at Weftminfter, the nineteenth day of June, in 
 the twenty ninth year of our reign. 
 
 By virtue of this writ to me directed, I have taken the body Sheriff's re, 
 of the within-named Charles Long; which I have ready before ^ rn ' ^f* 
 the lord the king, at Weftminfter, at the day within-written, r ^ M ' 
 as within it is commanded me. 
 
 <2> <& &> iR <2> <E2 the fecond by the grace of God of Great Writ of 
 Britain, France, and Ireland king, defender of the faith, arid fo Fieri fades, 
 forth; to the fheriffof Oxfordfhire, greeting. HBe command 
 you that of the goods and chattels within your bailiwick of 
 Charles Long, late of Burford, gentleman, you caufe to be made 
 two hundred pounds debt, which William Burton lately in our 
 court before us at Weftminfter hath recovered againft him, and 
 alfo fifty pounds, which were adjudged in our court before us 
 to the faid William, for his damages which he hath fuftained, as 
 well by occafion of the detention of his faid debt, as for his cofts 
 and charges to which he hath been put about his fuit in this be- 
 half, whereof the faid Charles Long is convifted, 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 fhall then be 
 in England, to render to the feid William of his debt and da- 
 mages aforefaid : and have theie then this writ. dSitnefS fir 
 Thomas Denifbn, knight, at Weftminfter, the nineteenth day of 
 Jqne, in the twenty ninth year of our reign. 
 
 By virtue of this writ to me directed, I have caufed to be Sheriff's i 
 made of the goods and chattels of the within-written Charles turn ; Ft 
 Long, two hundred and fifty pounds; which I have ready before '"*' 
 the lord the king at Weftminfter at the day within-written, as 
 it is within commanded me. 
 
 * Tlie fcnior puifnc juftice : there being no chief juftice that term. 
 
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