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BOOK III.-OF PRIVATE WRONGS.

CHAPTER I.

2

OF THE REDRESS OF PRIVATE WRONGS BY
THE MERE ACT OF THE PARTIES.... Page 2 to 16
1. Wrongs are the privation of right; and
are, I. Private. II. Public
2. Private wrongs, or civil injuries, are an
infringement, or privation, of the civil
rights of individuals, considered as indi-
viduals

ANALYSIS.

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3. The redress of civil injuries is one principal object of the laws of England........ 4. This redress is effected, I. By the mere act of the parties. II. By the mere operation of law. III. By both together, or suit in courts...

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5. Redress by the mere act of the parties
is that which arises, I. From the sole act
of the party injured. II. From the joint
act of all the parties..........
6. Of the first sort are, I. Defence of one's
self, or relations. II. Recaption of goods.
III. Entry on lands and tenements. IV.
Abatement of nuisances. V. Distress-
for rent, for suit or service, for amerce-
ments, for damage, or for divers statu-
table penalties,-made of such things only
as are legally distrainable; and taken
and disposed of according to the due
course of law. VI. Seizing of heriots, &c..3-15
7. Of the second sort are, I. Accord. II.
Arbitration.......
15-16

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CHAPTER II.

OF REDRESS BY THE MERE OPERATION OF
LAW.........
.........18 to 21
1. Redress, effected by the mere operation
of law, is, I. In case of retainer; where a
creditor is executor or administrator, and
is thereupon allowed to retain his own
debt. II. In the case of remitter; where
one who has a good title to lands, &c.
comes into possession by a bad one, and
is thereupon remitted to his ancient good
title, which protects his ill-acquired pos-
session....

....18-21

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CHAPTER III.

OF COURTS IN GENERAL....
.22 to 25
1. Redress that is effected by the act both
of law and of the parties is by suit or
action in the courts of justice..............
2. Herein may be considered, I. The courts
themselves. II. The cognizance of wrongs,
And of courts, I.
or injuries, therein.
Their nature and incidents. II. Their
several species................

3. A court is a place wherein justice is ju-
dicially administered, by officers dele-
gated by the crown: being a court either
of record, or not of record.
.23-24

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CHAPTER IV.
OF THE PUBLIC COURTS OF COMMON LAW
AND EQUITY........
.30 to 60

3

1. Courts of justice, with regard to their
several species, are, I. Of a public
or general jurisdiction throughout the
realm. II. Of a private or special juris-
diction....
2. Public courts of justice are, I. The courts
of common law and equity. II. The ec-
clesiastical courts. III. The military
courts. IV. The maritime courts..........
3. The general and public courts of com-
mon law and equity are, I. The court of
piepoudre. II. The court-baron. III.
The hundred court. IV. The county
court. V. The court of Common Pleas.
VI. The court of King's Bench. VII.
The court of Exchequer. VIII. The
court of Chancery. (Which two last are
courts of equity as well as law.) IX.
The courts of Exchequer-Chamber. X.
The house of Peers. To which may be
added, as auxiliaries, XI. The courts of
Assize and Nisi Prius
......32-60

22

4. Incident to all courts are, a plaintiff, defendant, and judge: and with us, there are also usually attorneys, and advocates or counsel, viz., either barristers, or serjeants at law......

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Page 25

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CHAPTER V.

OF COURTS ECCLESIASTICAL, MILITARY, AND
MARITIME.
.........62-68
1. Ecclesiastical courts, (which were sepa-
rated from the temporal by William the
Conqueror,) or courts Christian, are, I.
The court of the Archdeacon. II. The
court of the Bishop's Consistory. III. The
court of Arches. IV. The court of Pecu-
liars. V. The Prerogative Court. VI.
The court of Delegates. VII. The court
of Review.
........................................62-68°
2. The only permanent military court is
that of chivalry; the courts-martial an-
nually established by act of parliament
being only temporary....

3. Maritime courts are, I. The court of Ad-
miralty and Vice-Admiralty. II. The
court of Delegates. III. The lords of the
Privy Council, and others authorized by
the king's commission, for appeals in
prize-causes.........

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CHAPTER VI.

OF COURTS OF A SPECIAL JURISDICTION...71 to 85
1. Courts of a special or private jurisdic-
tion are, I. The forest courts; including
the courts of attachments, regard, swein-

mote, and justice-seat. II. The court of Commissioners of Sewers. III. The court of policies of assurance. IV. The court of the Marshalsea and the Palace Court. V. The courts of the principality of Wales. VI. The court of the duchychamber of Lancaster. VII. The courts of the counties palatine, and other royal franchises. VIII. The stannary courts. IX. The courts of London, and other corporations:-to which may be referred the courts of requests, or courts of conscience; and the modern regulations of certain courts-baron and county courts. X. The courts of the two Universities... .Page 71-85

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CHAPTER VII.

OF THE COGNIZANCE OF PRIVAte Wrongs....

85 to 114

1. All private wrongs or civil injuries are cognizable either in the courts ecclesiastical, military, maritime, or those of common law....

86

87-88

2. Injuries cognizable in the ecclesiastical
courts are, I. Pecuniary. II. Matrimo-
nial. III. Testamentary...
3. Pecuniary injuries, here cognizable, are,
I. Subtraction of tithes. For which the
remedy is by suit to compel their pay-
ment, or an equivalent; and also their
double value. II. Non-payment of ec-
clesiastical dues. Remedy: by suit for
payment. III. Spoliation. Remedy: by
suit for restitution. IV. Dilapidations.
Remedy: By suit for damages. V. Non-
repair of the church, &c.; and non-pay-
ment of church-rates. Remedy: by suit
to compel them.......

4. Matrimonial injuries are, I. Jactitation
of marriage. Remedy: by suit for per-
petual silence. II. Subtraction of con-
jugal rights. Remedy: by suit for resti-
ution. III. Inability for the marriage
state. Remedy: by suit for divorce.
IV. Refusal of decent maintenance to
the wife. Remedy: by suit for ali-

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.....88-92

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mony.......... 5. Testamentary injuries are, I. Disputing the validity of wills. Remedy: by suit to establish them. II. Obstructing of administrations. Remedy: by suit for the granting them. III. Subtraction of legacies. Remedy: by suit for the payment...... .95-98 6. The course of proceedings herein is much conformed to the civil and canon law: but their only compulsive process is that of excommunication; which is enforced by the temporal writ of significavit or de excommunicato capiendo........ .98-103 7. Civil injuries, cognizable in the court military, or court of chivalry, are, I. Injuries in point of honour. Remedy: by suit for honourable amends. II. Encroachments in coat-armour, &c. Remedy: by suit to remove them. The proceedings are in a summary method..

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....103-106

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.92-95

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8. Civil injuries cognizable in the courts maritime are injuries in their nature of common-law cognizance, but arising wholly upon the sea, and not within the precincts of any county. The proceedings are herein also much conformed to the civil law..... Page 106-109 9. All other injuries are cognizable only in the courts of common law: of which in the remainder of this book........... 109-114 10. Two of them are, however, cognizable by these, and other, inferior courts; viz. I. Refusal, or neglect, of justice. Remedies: by writ of procedendo, or mandamus. II. Encroachment of jurisdiction. Remedy: by writ of prohibition........ .........109-114

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CHAPTER VIII.

OF WRONGS, AND THEIR REMEDIES, RESPECTING THE RIGHTS OF PERSONS.......... .115 to 143 1. In treating of the cognizance of injuries by the courts of common law, may be considered, I. The injuries themselves, and their respective remedies. II. The pursuits of those remedies in the several

courts.

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2. Injuries between subject and subject, cognizable by the courts of common law, are in general remedied by putting the party injured into possession of that right whereof he is unjustly deprived...

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3. This is effected, I. By delivery of the thing detained to the rightful owner. II. Where that remedy is either impossible or inadequate, by giving the party injured a satisfaction in damages........ 4. The instruments by which these remedies may be obtained are suits or actions; which are defined to be the legal demand of one's right: and these are, I. Personal. II. Real. III. Mixed...116-118 5. Injuries (whereof some are with, others without, force) are, I. Injuries to the rights of persons. II. Injuries to the rights of property. And the former are, I. Injuries to the absolute, II. Injuries to the relative, rights of persons.. .118-119 6. The absolute rights of individuals are, I. Personal security. II. Personal liberty. III. Private property. (See Book I. Ch. I.) To which the injuries must be correspondent .... 119 7. Injuries to personal security are, I. Against a man's life. II. Against his limbs. III. Against his body. IV. Against his health. V. Against his reputation. The first must be referred to the next book.......... 119

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body are,
III. Battery.

8. Injuries to the limbs and
I. Threats. II. Assault.
IV. Wounding. V. Mayhem. Remedy:
by action of trespass vi et armis, for
damages...
9. Injuries to health, by any unwhole-
some practices, are remedied by a spe-
cial action of trespass on the case, for
damages.

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115

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115

116

120

121

10. Injuries to reputation are, I. Slanderous and malicious words. Remedy: by action on the case, for damages. II. Libels. Remedy: the same. III. Malicious prosecutions. Remedy: by action of conspiracy, or on the case, for damages...

11. The sole injury to personal liberty is false imprisonment. Remedies: I. By writ of, 1st, mainprize; 2dly, odio et atia; 3dly, homine replegiando; 4thly, habeas corpus ; to remove the wrong. II. By action of trespass; to recover damages .............................127-138 12. For injuries to private property, see the next chapter.

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13. Injuries to relative rights affect, I. Husbands. II. Parents. III. Guardians. IV. Masters.......

14. Injuries to a husband are, I. Abduction, or taking away his wife. Remedy: by action of trespass de uxore rapta et abducta, to recover possession of his wife, and damages. II. Criminal conversation with her. Remedy: by action on the case, for damages. III. Beating her. Remedy: by action on the case, per quod consortium amisit, for damages.. 15. The only injury to a parent or guardian, is the abduction of their children, or wards. Remedy: by action of trespass, de filiis, vel custodiis, raptis vel abductis; to recover possession of them, and damages.... ..140-141 16. Injuries to a master are, I. Retaining his servants. Remedy: by action on the case, for damages. II. Beating them. Remedy: by action on the case, per quod servitium amisit; for damages....... ...141-143

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138

139

CHAPTER IX.

OF INJURIES TO PERSONAL PROPERTY.. 144 to 166 1. Injuries to the rights of property are either to those of personal, or real, property.....

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2. Personal property is either in possession,
or in action......
3. Injuries to personal property in posses-
sion are, I. By dispossession. II. By
damage, while the owner remains in
possession.

4. Dispossession may be effected, I. By an
unlawful taking. II. By an unlawful
detaining......

5. For the unlawful taking of goods and chattels personal, the remedy is, I. Actual restitution; which (in case of a wrongful distress) is obtained by ac" tion of replevin. II. Satisfaction in damages: 1st, in case of rescous, by action of rescous, pound-breach, or on the case; 2dly, in case of other unlawful takings, by action of trespass, or trover...... .....145-151 6. For the unlawful detaining of goods lawfully taken, the remedy is also, I. Actual restitution; by action of replevin, or detinue. II. Satisfaction in

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144

144

144

damages; by action on the case, for trover and conversion.......

7. For damage to personal property, while
in the owner's possession, the remedy
is in damages, by action of trespass
vi et armis, in case the act be imme-
diately injurious, or by action of trespass
on the case, to redress consequential
damage..
8. Injuries to personal property, in action,
arise by breach of contracts, I. Express.
II. Implied..........

153

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9. Breaches of express contracts are, I. By non-payment of debts. Remedy: 1st, specific payment; recoverable by action of debt; 2dly, damages for nonpayment; recoverable by action on the case. II. By non-performance of covenants. Remedy: by action of covenant, 1st, to recover damages, in covenants personal; 2dly, to compel performance in covenants real. III. By non-performance of promises, or assumpsits. Remedy: by action on the case, for damages........................................................ ....................................................154-158 10. Implied contracts are such as arise, I. From the nature and constitution of government. II. From reason and the construction of law....... ...... 158 11. Breaches of contracts implied in the nature of government are by the nonpayment of money which the laws have directed to be paid. Remedy: by action of debt, (which, in such cases, is frequently a popular, frequently a qui tam action,) to compel the specific payment; or sometimes by action on the case, for damages....... .....158-161 12. Breaches of contracts implied in reason and construction of law are by the nonperformance of legal presumptive assumpsits for which the remedy is in damages; by an action on the case, on the implied assur psits. I. Of a quantum meruit. II. Of a quantum valebat. III. Of money expended for another. IV. Of receiving money to another's use. V. Of an insimul computassent, on an account stated, (the remedy on an account unstated being by action of account.) VI. Of performing one's duty, in any employment, with integrity, diligence, and skill. In some of which cases an action of deceit (or on the case, in nature of deceit) will lie..............................................161-166

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CHAPTER X.

OF INJURIES TO REAL PROPERTY; AND FIRST OF DISPOSSESSION, OR OUSTER, OF THE FREEHOLD.. .........................................167 to 197 1. Injuries affecting real property are, I. Ouster. II. Trespass. III. Nuisance. IV. Waste. V. Subtraction. VI. Disturbance.

2. Ouster is the amotion of possession; and is, I. From freeholds. II. From chattels real..

167

3. Ouster from freeholds is effected by, I. Abatement. II. Intrusion. III. Disseisin. IV. Discontinuance. V. Deforcement.............................................................................................................................. 167

167

4. Abatement is the entry of a stranger, after the death of the ancestor, before the heir........ ... Page 167 5. Intrusion is the entry of a stranger, after a particular estate of freehold is determined, before hir in remainder or

169

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169

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reversion....... 6. Disseisin is a wrongful putting out of him that is seised of the freehold....... 7. Discontinuance is where tenant in tail, or the husband of tenant in fee, makes a larger estate of the land than the law alloweth. 8. Deforcement is any other detainer of the freehold from him who hath the property, but who never had the possession.......... 172 9. The universal remedy for all these is restitution or delivery of possession, and, sometimes, damages for the detention. This is effected, I. By mere entry. II. By action possessory. III. By writ of right......

174

10. Mere entry on lands, by him who hath the apparent right of possession, will (if peaceable) devest the mere possession of a wrong-doer. But forcible entries are remedied by immediate restitution, to be given by a justice of the peace.........175-179 11. Where the wrong-doer hath not only mere possession, but also an apparent right of possession; this may be devested by him who hath the actual right of possession, by means of the possessory actions of writ of entry, or assise.... 12. A writ of entry is a real action, which disproves the title of the tenant, by showing the unlawful means under which he gained or continues possession. And it may be brought, either against the wrongdoer himself; or in the degrees called the per, the per and cui, and the post...... 180 13. An assise is a real action, which proves

171

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179

the title of the demandant, by showing his own, or his ancestor's, possession. And it may be brought either to remedy abatements; viz. the assise of mort d'ancestor, &c.: or to remedy recent disseisins; viz. the assise of novel disseisin .........184-190 14. Where the wrong-doer hath gained the actual right of possession, he who hath the right of property can only be remedied by a writ of right, or some writ of a similar nature. As, I. Where such right of possession is gained by the discontinuance of tenant in tail. Remedy, for the right of property: by writ of formedon. II. Where gained by recovery in a possessory action, had against tenants of particular estates by their own default. Remedy: by writ of quod ei deforceat. III. Where gained by recovery in a possessory action, had upon the merits. IV. Where gained by the statute of limitations. Remedy, in both cases: by a mere writ of right, the highest writ in the law.......... .190-197

CHAPTER XI.

OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL..... .198 to 207 1. Ouster from chattels real is, I. From

II. From

estates by statute and elegit. an estate for years........ ...... Page 198 2. Ouster from estates by statute or elegit is effected by a kind of disseisin. Remedy: restitution, and damages; by assise of novel disseisin...... 3. Ouster from an estate for years is effected by a like disseisin or ejectment. Remedy restitution and damages; I. By writ of ejectione firma. II. By writ of quare ejecit infra terminum.....

..... 198

199

4. A writ of ejectione firma, or action of trespass in ejectment, lieth where lands, &c., are let for a term of years and the lessee is ousted or ejected from his term; in which case he shall recover possession of his term, and damages..

199

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5. This is now the usual method of trying titles to land, instead of an action real: viz., by, I. The claimant's making an actual (or supposed) lease upon the land to the plaintiff. II. The plaintiff's actual (or supposed) entry thereupon. III. His actual (or supposed) ouster and ejectment by the defendant. For which injury this action is brought, either against the tenant, or (more usually) against some casual or fictitious ejector; in whose stead the tenant may be admitted defendant, on condition that the lease, entry, and ouster be confessed, and that nothing else be disputed but the merits of the title claimed by the lessor of the plaintiff. ........................................... 200-206 6. A writ of quare ejecit infra terminum is an action of a similar nature; only not brought against the wrong-doer or ejector himself, but such as are in possession under his title.......

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CHAPTER XII.

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.208 to 215

OF TRESPASS......... 1. Trespa is an entry upon, and damage done to, another's lands, by one's self, or one's cattle; without any lawful authority, or cause of justification: which is called a breach of his close. Remedy: damages; by action of trespass quare clausum fregit: besides that of distress damage feasant. But, unless the title to the land come chiefly in question, or the trespass was wilful or malicious, the plaintiff (if the damages be under forty shillings) shall recover no more costs than damages.... ..208-215

CHAPTER XIII.

207

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OF NUISANCE....................................................... ..........216 to 219 1. Nuisance, or annoyance, is any thing that worketh damage, or inconvenience; and it is either a public and common nuisance, of which in the next book; or, a private nuisance, which is any thing done to the hurt or annoyance of, I. The corporeal, II. The incorporeal, hereditaments of another......... 2. The remedies for a private nuisance (besides that of abatement) are, I. Damages; by action on the case (which also lies for special prejudice by a public

216

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..Page 219

case

3. The remedy for him in remainder, or reversion, is, I. Preventive: by writ of estrepement at law, or injunction out of Chancery; to stay waste. II. Corrective: by action of waste; to recover the place wasted, and damages.....

...225-229

CHAPTER XV.

OF SUBTRACTION ......................................230 to 235 1. Subtraction is when one who owes services to another withdraws or neglects to perform them. This may be, I. Of rents, and other services, due by tenure. II. Of those due by custom................... 2. For subtraction of rents and services due by tenure, the remedy is, I. By distress; to compel the payment, or performance. II. By action of debt. III. By assise. IV. By writ de consuetudinibus et servitiis; to compel the payment. V. By writ of cessavit; and, VI. By writ of right sur disclaimer-to recover the land itself........... ..231-234 3. To remedy the oppression of the lord, the law has also given, I. The writ of ne injuste vexes: II. The writ of mesne...... 234 4. For subtraction of services due by custom, the remedy is, I. By writ of secta ad molendinum, furnum, torrale, &c.; to compel the performance, and recover damages. II. By action on the case; for damages only......

235

CHAPTER XVI.

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or, writ of admeasurement of pasture; to apportion the common;-and writ de secunda superoneratione; for the supernumerary cattle, and damages. III. Enclosure, or obstruction. Remedies: restitution of the common, and damages; by assise of novel disseisin, and by writ of quod permittat: or, damages only; by action on the case. .......... Page 237-240 5. Disturbance of ways is the obstruction, I. Of a way in gross, by the owner of the land. II. Of a way appendant, by a stranger. Remedy, for both: damages; by action on the case......

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6. Disturbance of tenure, by driving away tenants, is remedied by a special action on the case; for damages......... 7. Disturbance of patronage is the hinderance of a patron to present his clerk to a benefice; whereof usurpation within six months is now become a species............ 242 8. Disturbers may be, I. The pseudo-patron, by his wrongful presentation. II. His clerk, by demanding institution. III. The ordinary, by refusing the clerk of the true patron. 9. The remedies are, I. By assise of darrein presentment; II. By writ of quare impedit -to compel institution and recover damages: consequent to which are the writs of quare incumbravit, and quar non admisit; for subsequent damages. III. By writ of right of advowson; to compel institution, or establish the permanent right......

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242

.245-252

CHAPTER XVII.

OF INJURIES PROCEEDING FROM, OR AFFECTING, THE CROWN......... 254 to 265 1. Injuries to which the crown is a party, are, I. Where the crown is the aggressor. II. Where the crown is the sufferer........ 254 2. The crown is the aggressor, whenever it

is in possession of any property to which the subject hath a right ..254-255 3. This is remedied, I. By petition of right; where the right is grounded on facts disclosed in the petition itself. II. By monstrans de droit; where the claim is grounded on facts already appearing on record. The effect of both which is to remove the hands (or possession) of the king......255-257 4. Where the crown is the sufferer, the king's remedies are, I. By such commonlaw actions as are consistent with the royal dignity. II. By inquest of office, to recover possession: which, when found, gives the king his right by solemn matter of record; but may afterwards be traversed by the subject. III. By writ of scire facias, to repeal the king's patent or grant. IV. By information of intrusion, to give damages for any trespass on the lands of the crown; or of debt, to recover moneys due upon contract, or forfeited by the breach of any penal statute; or sometimes (in the latter case) by information in rem: all filed in the Exchequer ex officio by the king's attorney-general. V. By writ of quo warranto, or information in the nature of such writ; to seize into the

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