ANALYSIS. BOOK III.-OF PRIVATE WRONGS. CHAPTER I. 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 individuals. 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.. 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.......... IV. 2 2 3 3 6. Of the first sort are, I. Defence of one's self, or relations. II. Recaption of goods. III. Entry on lands and tenements. Abatement of nuisances. V. Distressfor rent, for suit or service, for amercements, for damage, or for divers statutable 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. Arbitration......................... ........................ CHAPTER II. II. 15-16 30 2. Public courts of justice are, I. The courts of common law and equity. II. The ecclesiastical courts. III. The military courts. IV. The maritime courts.. 3. The general and public courts of common 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 CHAPTER V. OF COURTS ECCLESIASTICAL, MILITARY, AND MARITIME. .62-68 1. Ecclesiastical courts, (which were separated 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 Peculiars. 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 annually established by act of parliament being only temporary... 67 3. Maritime courts are, I. The court of Admiralty 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... 68 CHAPTER VI. OF COURTS OF A SPECIAL JURISDICTION...71 to 85 1. Courts of a special or private jurisdiction 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 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, commissible 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 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 2. Injuries cognizable in the ecclesiastical courts are, I. Pecuniary. II. Matrimonial. III. Testamentary... .......... 87-88 3. Pecuniary injuries, here cognizable, are, I. Subtraction of tithes. For which the remedy is by suit to compel their payment, or an equivalent; and also their double value. II. Non-payment of ecclesiastical dues. Remedy: by suit for payment. III. Spoliation. Remedy: by suit for restitution. IV. Dilapidations. Remedy: By suit for damages. V. Nonrepair of the church, &c.; and non-payment of church-rates. Remedy: by suit to compel them........ 4. Matrimonial injuries are, I. Jactitation of marriage. Remedy: by suit for perpetual silence. II. Subtraction of conjugal rights. Remedy: by suit for restitution. III. Inability for the marriage state. Remedy: by suit for divorce. IV. Refusal of decent maintenance to .88-92 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........ 3. This is effected, I. By delivery of the thing detained to the rightful owner. II. Whether that remedy is either impossible or inadequate, by giving the party injured a satisfaction in damages.... 115 115 116 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......... 8. Injuries to the limbs and body are, 9. Injuries to health, by any unwhole- 119 120 121 ...... Page 123 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. 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. 138 139 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 OF INJURIES TO PERSONAL PROPERTY.. 144 to 166 1. Injuries to the rights of property are either to those of personal, or real, property........ 2. Personal property is either in possession, or in action.... 3. Injuries to personal property in possession 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... 144 144 144 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 action 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 taking, the remedy is also, I. Actual restitution; by action of replevin, or detinue. II. Satisfaction in damages; by action on the case, for trover and conversion....... ......... Page 151 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 immediately 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...................... 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......... 153 153 ........ 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 assumpsits. 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. some of which cases an action of deceit (or on the case, in nature of deceit) will .....161-166 In 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 him in remainder or 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......... 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........ 169 169 171 172 174 179 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 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 estates by statute and elegit. II. From 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 firme. II. By writ of quare ejecit infra terminum... 4. A writ of ejectione firmæ, 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......... 198 199 199 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 ............................. CHAPTER XII. .... 207 OF TRESPASS..... ......... 208 to 215 1. Trespass 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. 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 III. By 230 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. 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...... 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...... ........... CHAPTER XVI. OF DISTURBANCE.... 231-234 235 ..236 to 252 1. Disturbance is the hindering or disquieting the owners of an incorporeal hereditament, in their regular and lawful enjoyment of it....... 236 II. IV. Of 236 2. Disturbances are, I. Of franchises. Of commons. III. Of ways. tenure. V. Of patronage.. 3. Disturbance of franchises is remedied by a special action on the case; for damages..... 4. Disturbance of common is, I. Intercommoning without right. Remedy: damages; by an action on the case, or of trespass: besides distress damage feasant; to compel satisfaction. II. Surcharging the common. Remedies: distress damage feasant; to compel satisfaction: action on the case; for damages: 236 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... 6. Disturbance of tenure, by driving away 241 242 242 244 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 quare non admisit; for subsequent damages. III. By writ of right of advowson; to compel institution, or establish the permanent right..... .....245-252 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 |