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the king's courts, but that they should be heard and determined in the county with small charge, and little or no travel or loss of time, for it was there accounted against the dignity and institution of those high courts to hold plea of small or trifling causes; otherwise the law that was instituted for the quiet of man, and for his defence, might be abused to his charge, vexation, and offence. And the maxim of the common law is, quod placita de catallis, debitis, &c. quæ fummum 40 s. a!tingunt vel eum excedunt, fecundum legem et confuetudinem Anglia, fine brevi Regis placitari non debent. Ibid. 312.

By 43 Eliz. c. 6. it is enacted, That if any A &tions personpersonal action be brought in any of her Majesty's al, if plaintiff csurts at Wefilminster (not being for any title or inte- more than 40 s. Test of lands, nor concerning the freehold or inheritance no more cotis

than the fum of any lands, når for any battery), it shall appear to

recovered (except the judges of the same court, and being so figni- the title or freefied by the justices before whom the same shall be hold is in questried, that the debt or damages to be recovered

tion). therein shall not amount to the sum of 40 s. that in every such case the judges or justices before whom such action thall be pursued, shall not award the plaintiff any more colts than the sum of the debt or damages so recovered mall amount to, but less at their discretion.

If upon a nonfuit in an inferior court 16 s. is Debt lies for 169, given for costs, by 23 H. 8. c. 15. debe lies for it coits. in a superior court. Cro. Eliz. 95. i Will. 316. Murray v. Wilson. Stat. 4 Jac. 1. c. 3. i Leon. 316. cafe 344

The style of the court is, Pleas at Westmin- Style of the “ ster before Alexander Lord Loughborough, and court. his companions, justices of our lord the king of the bench, of the term of Saint Hilary, in the thirtieth "year of the reign of our Sovereign Lord George " the third, by the grace of God of Great Britain, “ France, and Ireland, king, defender of the faith,

The authority of this court in common cases is the authority suunded on an original writ issuing out of the chan- of this court ie B 3

cery,

" &c.

founded on an

cery, being the king's mandate for shem to proceed original,

to determine the cause; for it was a maxim among the Normans that there thould be no proceedings in the king's court in common pleas without the king's writ; therefore a writ always issued to war

rant this court's proceedings. If party privi. But where the party is privileged, as an attorney leged on a writ, or other perfon entitled ihereto, it may hold plea on

a wril of privilege, which is the first process of the court iftud against the defendant, to compel him

to appear, and make his defence. Helds plea by bill It allo holds plea by bill, which is in nature of a peayainit ditoinies, tition to the court, against any attorney, officer, or &c.

minister, intitled to privilege; the bill expreffes either the grievance or wrong which the plaintiff hath suffered by the defendant, or else some fault by bim committed against fome law or statute of

the realm. Peers, &c, may

A peer, knight, citizen, or turness, or other perb- fued by origi- son intitled to privilege of parliament, may be na: bill.

sued in this court by original bill, in manner as die relied by the statute 12 & 13 W.3.6. 3. on which a writ of summons may issue, and in default of ap-, pearance, a difringas may isiue to compel him thereto.

Of the Laws of England.

AW, in its most general and comprehensive What is law.

sense, signifies a rule of action, prescribed by some superior power, which the inferior is bound to obey. And the law of England in particular, is the rule of action prescribed by its legislature or lupreme power, for the well ordering of that kingdom. The law may be divided into two kinds; the lex non fcripta, the unwritten or common law; and the lex fcripta, the written or statute law.

The lex non fcripta, or unwritten law, includes the lex non not only general customs, or the common law, but fcripta. also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions; and are properly distinguished into three kinds : 1. General Customs ; which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual fig. nification. 2. Particular Customs; which, for the most part, affect only the inhabitants of particular districts. 3. Certain particular Laws; which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction. 1. As to general customs, or the common law, pro. General

cuftoms. perly so called; this is that law, by which the proceedings and determinations in the king's ordinary courts of justice are guided and directed. This, for the moft part, secules the course in which lands descend by inheritance; the manner and form of acquiring and transferring property ; the solemnities and obligations of contracts; the rules of ex. pounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment; and an infinite number of minute particulars, which diffuse themselves as extensively as the ordinary distribution of commou justice requires. B 4

2. Para

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customs.

Particular 2. Particular customs, are those which belong to

particular counties, cities, towns, manors, and lord. ships; and these were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large; which privilege is confirmed to them by several acts of parliament, Mag. Cart. 9 H. 3. c. 9. 1 Ed. 3.

f. 2. c. 9. 14 Ed. 3. f. 1. c. 1. & 2 H. 4. 6. 1. Gavelkind, Such is the custom of gavelkind in Kent and Borovgh Eng- some other parts of the kingdom, where the lands lith, &c.

of the father are equally divided, at his death, among all his fors; or the land of the brother, among all the brethren, if he have no issue of his own. Vide Co. Litt. 140. Also the custom that prevails in divers antient boroughs, and therefore called Borough English, that the youngest fon shall inherit the eflate, in preference to all his elder brothers. Co. Litt. 140. b. Such is the custom in other boroughs, that a widow ball be intitled for her dower, to all her husband's lands. Co. Litt. 166; but at the common law she is intitled to one third part only. Lastly, there are many particular customs within the city of London with regard to trade, apprentices, widows, erphans, &c. All these are contrary to the general law of the land, and are good only by special usage; though the customs of London are also confirmed by an act of parliament. 8 Rep. 126. Cro. Car.

347. 2 W. & M. c. 8. f. 3. Lex mercolgria. To this may most properly be referred a particu

lar system of customs used only among one set of the king's subjects, called the crfiom of merchants, or lex mercatoria: which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it; being allowed, for the benefit of trade, to be of the utmost

validity in all commercial cransactionis. Winch. 24. Cams must be Cufioms must be reasonable; or rather, taken nereasonable.

gatively, they must not be unreasonalle. Which is not, as Sir Edward Coke says, to be understood by every unlearned man's reason, but of artifcial and

Irgal

legal reason, warranted by authority of law. Co. Lits. 62. Coke's Copsh. f. 33.

Cuftoms ought to be certain. A custom that lands Culoms op het shall difcend to the most worthy of the owner's blood, is to be ccriain, void; for how shall this worth be determined? But a custom to descend to the next of male blood, exclusive of females, is certain, and therefore good, i Rol. Abr. 565. A custom to pay two pence an acre in lieu of tythes, is good; but to pay fometimes iwo pence, and sometimes three pence, as che occupier of the land pleases, is bad, for its uncertainty. Yet a custom, to pay a year's improved value for a fine on a copyhold estate, is good; though the value is a thing uncertain : for the vajue may at any time be ascertained ; and the maxin of law is, id certum eft, quod certum reddi poteft. Co. Lit. 33. b.

Customs, though established by consent, must be Cuftoms muft ba (when established) compulsory; and not left to the compulsory. oprion of every man, whether he will use them or no. Therefore a custom, that all the inhabitants hall be rated towards the maintenance of a bridge, will be good; but a custom that every man is to contribure thereunto at his own plealure, is idle and absurd, and indeed no custom at all.

Lastly, customs must be consistent with each customa mult other : one custom cannot be set up in opposition be confiftent, to another. For if both are really customs, then both are of equal antiquity, and both estabiished by mutual consent : which to say of contradictory customs is absurd. Therefore, if one man prescribes that by custom he has a sight to have windows looking into another's garden; the other cannot claim a right by custom to stop up or obstruct those windows ; for these two contradictory customs cannot be both good, nor both stand together. He ought rather 10 deny the existence of the former custom. 9 Rep. 58.

The written laws, or leges scriple, are statut's, Leges fcrip:2, acts, or ediets, made by the king's majelty, by and wható wih the advice and consent of the lords {piritual

and

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